XU (Migration)

[2022] AATA 2086

XU (Migration) [2022] AATA 2086 (22 June 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Yufen Xu

REPRESENTATIVE:  Ms LI WANG (MARN: 1170894)

CASE NUMBER:  2107550

HOME AFFAIRS REFERENCE(S):          BCC2021/283801

MEMBER:Nicole Burns

DATE:22 June 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the visa applicant a Visitor (Class FA) visa.

Statement made on 22 June 2022 at 1:14pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – tourist stream – application made more than 28 days after last substantive visa held – COVID-19 travel restrictions and reliance on daughter-in-law – applied for waiver of ‘no further stay’ restriction – after waiver approved, applied online then told to make paper-based application – no discretion to consider circumstances – combined hearing with husband’s separate review on same issues – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 65

Migration Regulation 1994 (Cth), Schedule 2, cl 600.223(2), Schedule 3, criterion 3001, Schedule 8, condition 8503

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 25 May 2021 to refuse to grant the visa applicant a Visitor (Class FA) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicant applied for the visa on 23 February 2021. At the time the visa application was lodged, Class FA contained one subclass, Subclass 600 (Visitor), with a number of different streams. In this case the applicant applied for the visa seeking to satisfy the primary criteria in the Tourist stream.

3. The delegate refused to grant the visa on the basis that the applicant did not satisfy cl.600.223 because at the time she applied for the visa she did not hold a relevant substantive visa and she did not satisfy the criterion 3001 in Schedule 3 to the Regulations.

4. The applicant gave oral evidence to the Tribunal by way of a telephone hearing on 22 June 2022.  The hearing was combined with her husband’s case, Mr Chenglu Chang, who was  present.[1]  Also present at the hearing was the applicant’s son, Mr Shuai Chang, and daughter-in-law, Ms Min Xu.  

   [1] AAT No. 2107549

5. The applicant was represented in relation to the review.  She did not attend the hearing.

6. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in this case is whether the applicant meets the Schedule 3, criteria 3001 for the purposes of cl.600.223(2) of Schedule 2 to the Regulations.

8. Clause 600.223(2) states as follows:

   (2) If the applicant was in Australia at the time of application, and did not hold a substantive visa:

   a)the last substantive visa the applicant held was not a Subclass 403 (Temporary Work (International Relations)) visa in the Domestic Worker (Diplomatic Consular) stream; and

   b)the applicant satisfies Schedule 3 criteria 3001, 3003, 3004 and 3005.

9. Criterion 3001 states that the application is validly made within 28 days after ‘the relevant day’. In applicant’s circumstances, the relevant day is the last day when they held a substantive visa.

10. According to information contained in Departmental records, and confirmed at hearing, the applicant last held a substantive visa when her visitor (Subclass 600) visa ceased on 11 January 2021. The current application was made on 23 February 2021, more than 28 days later. 

11. As the application was not made within 28 days after the applicant last held a substantive visa, the applicant does not satisfy criterion 3001 of the Schedule 3 criteria.  Accordingly, the applicant does not meet cl.600.223 and the decision to refuse the application must be affirmed.

12. This information was conveyed to the applicant by the delegate in a letter dated 23 April  2021.  The applicant sent a letter dated 27 April 2021 to the Department containing several documents as attachments including copies of her son’s bank account statement, home loan statement, and the applicant’s passport, but she did not comment on the issue in dispute.

13. The delegate noted this response in their decision record, but ultimately found the applicant did not meet Schedule 3 criteria 3001 of regulation 600.223(2) because the visa application was lodged more than 28 days after she last held a substantive visa. 

14. At hearing the applicant’s daughter-in-law explained that she applied for the visas for the applicant and her husband, who had arrived in Australia from China in January 2020 and because of COVID-19 decided they could not go home around the time their initial visitor visa was due to expire.  She had to apply to waive condition 8503 (no further stay) for both of them, but was unable to do so until around a month before their visitor visas were due to expire.  Once the waiver was approved she applied for another visitor visa for the applicant and her husband online, however found out a few days later – in correspondence in her junk email – that she had to make a paper based application.   By the time she did, more than 28 days had passed since the applicant and her husband’s previous visitor visa had expired.  She said her parents-in-law had no intention of staying in Australia without a visa, and the mistake was attributable to her not completely understanding the procedures and requirements at the time. 

15. The Tribunal has no reason to doubt the applicant’s daughter-in-law’s evidence in this regard and has sympathy for the circumstances the applicant finds herself in.  However as explained at hearing, the Tribunal has no discretion to extend the 28-day period or waive it by taking into account such circumstances when determining if the applicant satisfies criterion 3001 of the Schedule 3 criteria

16. As the visa application was not made within 28 days of the relevant day, the applicant does not satisfy criterion 3001. Therefore, the applicant does not meet the requirements of cl. 600.223.

    DECISION

17. The Tribunal affirms the decision not to grant the visa applicant a Visitor (Class FA) visa.

    Nicole Burns
    Member