Xu (Migration)

Xu (Migration) [2022] AATA 1990 (7 June 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ms Gendi Xu
REPRESENTATIVE:  Mr Stanley Chan (MARN: 0430097)
CASE NUMBER:  2103917
HOME AFFAIRS REFERENCE(S):          BCC2021/206254

MEMBER:Anne Grant
DATE:7 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 07 June 2022 at 1:50pm
CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – no substantive visa at the time of application – applicant delayed payment of the prescribed fee – visa expiring in the following days – factors beyond the applicant’s control – decision under review affirmed
LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 600.223; Schedule 3 Criterion 3004
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 26 March 2021 to refuse to grant the visa applicant a Visitor (Class FA) Subclass 600 visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The visa applicant applied for the visa on 4 February 2021.
The delegate refused to grant the visa on the basis that the applicant did not meet cl 600.223 because they were not satisfied that the applicant satisfied cl 3004 of Schedule 3 to the Migration Act. In particular, the delegate found that they were not satisfied that there were factors beyond the applicant’s control which prevented them from lodging the current visa application while holding a substantive visa.
The hearing of the current matter and that of the applicant’s husband (review 2103815, Dequan LI) were heard contemporaneously as they involved the same facts and circumstances. Both were assisted by their daughter, Ms Jin Li. The applicants appeared before the Tribunal on 2 June 2022 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Li. The hearing was assisted by an interpreter in the Mandarin and English languages.
The applicants were represented by their agent, Mr Stanley Chan.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
Relevantly to this matter cl 600.223 requires the Tribunal to be satisfied that if the applicant was in Australia at the time of application and did not hold a substantive visa, the last substantive visa the applicant held was not a Subclass 403 (Temporary Work (International Relations)) visa in the Domestic Worker (Diplomatic or Consular) stream and the applicant satisfies Schedule 3 criteria 3001, 3003, 3004 and 3005: cl 600.223(2).
The information before the Tribunal reflects (and this is not disputed by the applicants and their daughter) that the applicant held a Visitor Visa (subclass 600) which ceased on 1 February 2021. The application for a visitor visa here under review was lodged on 4 February 2021. The applicant was granted a bridging C visa on 8 February 2021.
In the present case, the applicant did not hold a substantive visa at the time of application and did not previously hold a Subclass 403 (Temporary Work (International Relations)) visa in the Domestic Worker (Diplomatic or Consular) stream.
The issue in this case is therefore whether the applicant satisfies Schedule 3 criteria 3001, 3003, 3004 and 3005. These criteria are set out in the attachment to this decision.
Does the applicant satisfy the relevant Schedule 3 criteria?
Criterion 3001
In order to satisfy criterion 3001, the application for the visa must have been lodged within 28 days of the relevant day. The ‘relevant day’ is defined in 3001(2), as set out in the attachment to this decision. In the circumstances of this review, the relevant day is the last day that the person held a substantive visa.
In this case, the applicant lodged the application for a visitor within 28 days of the relevant day and so the applicant satisfies criterion 3001.
Criterion 3003
Criterion 3003 only applies to an applicant who has not, on or after 1 September 1994, been the holder of a substantive visa and, on 31 August 1994, was either an illegal entrant or the holder of an entry permit that was not valid beyond that date. The Tribunal is satisfied that the applicant was not such a person, and accordingly criterion 3003 does not apply.
Criterion 3004
Criterion 3004 applies to an applicant who ceased to hold a substantive or criminal justice visa on or after 1 September 1994, or who entered Australia unlawfully on or after that date and has not subsequently been granted a substantive visa.
It requires the Tribunal to be satisfied that the applicant is not the holder of a substantive visa because of factors beyond his or her control and that there are compelling reasons for granting the visa and that the applicant has complied substantially with the conditions applicable to the last of any entry permits, substantive visas and any subsequent bridging visa held by the applicant.
In addition, the Tribunal must be satisfied that the applicant would have been entitled to be granted the visa if the applicant had applied for it on the day he or she last held a substantive or criminal justice visa; or would have satisfied the criteria when he or she last entered Australia unlawfully; that the applicant intends to comply with any conditions of the visa; and if the last visa (if any) held by the applicant was a transitional (temporary) visa, that visa was not subject to a condition that the holder would not, after entering Australia, be entitled to be granted an entry permit, or further entry permit, while the holder remained in Australia.
The visa applicant ceased to hold a substantive visa after 1 September 1994. The last substantive visa ceased on 1 February 2021.
In a submission provided to the Department and to the Tribunal, the applicant’s authorised recipient, Ms Li, explained that she did in fact apply for a new visa before her parents’ existing visas expired – on 31 January 2021. She said that when she finished all the documents, she noticed the BPAY information that the due day is 3 February 2021, but didn’t notice the ‘small character’ below the payment information. She didn’t pay the fee immediately but sent screenshots to her husband. She paid the fee on 2 February 2021. She then received an email that the application was invalid on 3 February 2021.
She then contacted some agents who said her parents should leave Australia immediately. She added “I am sorry about procrastinating to last minutes for them to apply the new visa. Could you please show sympathy to me as their visa expired on 1/2/21 and I paid the fee just one day delay.”
Attached to the submission made to the department and Tribunal were some pictures which included some warning messages that “if your BPAY payment is not received within 3 days, your application will not be accepted and you will need to commence a new application. BPAY payments made after your bank’s daily cut -off time will be processed the following business day. Your application will not be submitted or processed until your BPAY payment is received and matched to your application. You may view the status of your payment and application from your ImmiAccount. If you have selected BPAY by mistake you can select a different method of payments..”
At hearing, Ms Li confirmed that her mother and father do not read and write English so she has always applied for visas on their behalf. The circumstances outlined in her submission to the Department were correct. She did not realise the consequences of not immediately paying the BPAY fee.
Ms Li gave evidence that as soon as the earlier application was deemed to be invalid, the applicant’s daughter lodged the application here under review on 4 February 2021.
At hearing, it was noted that there are warnings on the Department’s website that advise applicants not to pay by BPAY if their visa was expiring in the next three days. Ms Li did not dispute this but obviously was not aware of if at the time nor the consequences of paying by BPAY in her situation.
Ms Li explained that she left the application late because at that time she was unsure about whether it was safe or not for her parents to return home due to the COVID19 pandemic. They had not caught covid and nor had anyone within the family.
Mr Chan submitted that the information on the Department’s website is unclear and the applicant’s daughter relied on it, thinking that the application procedure was finished provided she paid the fee within the three day period.
Consideration
The reason why the visa applicant was without a substantive visa at the time of application is due to the earlier application for a visitor visa being deemed to be invalid after their previous visa had already expired due to a late payment complication. The fact that the applicant made that earlier application for a substantive visa within time strongly suggests that the capacity to apply for and obtain a substantive visa prior to the expiration of their substantive visa was very much within the control of the applicant (and their daughter, as the person who acted on their behalf). Whilst the Tribunal can understand the circumstances and appreciate that the error has had some significant consequences in this case, the Tribunal is not satisfied that the visa applicant was not the holder of a substantive visa at the time of application because of factors which were beyond the applicant’s control.
Because the Tribunal is not satisfied that the visa applicant was without a substantive visa at the time of application because of factors beyond their control, the applicant cannot satisfy the criteria in clause 3004. Therefore the Tribunal will not proceed to consider any of the additional requirements of the clause, such as whether there are compelling reasons for the grant of the visa and whether the applicant would have been otherwise eligible for the visa.
For these reasons, the applicant does not satisfy criterion 3004 for the purposes of cl 600.223.
It follows that as the applicant does not satisfy the applicable criteria for the grant of a Subclass 600 visa, the decision under review must be affirmed.
DECISION
The Tribunal affirms the decision not to grant the visa applicant a Visitor (Class FA) visa.
Anne Grant
Member
ATTACHMENT - Extract from Migration Regulations 1994
Schedule 3
3001
(1)The application is validly made within 28 days after the relevant day (within the meaning of subclause (2)).
(2)For the purposes of subclause (1) and of clause 3002, the relevant day, in relation to an applicant, is:
(a)if the applicant held an entry permit that was valid up to and including 31 August 1994 but has not subsequently been the holder of a substantive visa — 1 September 1994; or
(b)if the applicant became an illegal entrant before 1 September 1994 (whether or not clause 6002 in Schedule 6 of the Migration (1993) Regulations applied or section 195 of the Act applies) and has not, at any time on or after 1 September 1994, been the holder of a substantive visa — the day when the applicant last became an illegal entrant; or
(c)if the applicant:
(i)       ceased to hold a substantive or criminal justice visa on or after 1 September 1994; or
(ii)      entered Australia unlawfully on or after 1 September 1994;
whichever is the later of:
(iii)      the last day when the applicant held a substantive or criminal justice visa; or
(iv)    the day when the applicant last entered Australia unlawfully; or
(d)if the last substantive visa held by the applicant was cancelled, and the Tribunal has made a decision to set aside and substitute the cancellation decision or the Minister's decision not to revoke the cancellation — the later of:
(i)       the day when that last substantive visa ceased to be in effect; and
(ii)      the day when the applicant is taken, under sections 368C, 368D and 379C of the Act, to have been notified of the Tribunal's decision.
3003
If:
(a)the applicant has not, on or after 1 September 1994, been the holder of a substantive visa; and
(b)on 31 August 1994, the applicant was either:
(i)       an illegal entrant; or
(ii)      the holder of an entry permit that was not valid beyond 31 August 1994;
the Minister is satisfied that:
(c)the applicant last became an illegal entrant, or, in the case of a person referred to in subparagraph (b)(ii), last became a person in Australia without a substantive visa, because of factors beyond the applicant's control; and
(d)there are compelling reasons for granting the visa; and
(e)the applicant has complied substantially with the conditions that apply or applied to:
(i)       the last of any entry permits held by the applicant (other than a condition of which the applicant was in breach solely because of the expiry of the entry permit); and
(ii)      any subsequent bridging visa; and
(f)the applicant would have been entitled to be granted an entry permit equivalent to a visa of the class applied for if the applicant had applied for the entry permit immediately before last becoming an illegal entrant or, in the case of a person referred to in subparagraph (b)(ii), if the applicant had applied for the entry permit on 31 August 1994; and
(g)the applicant intends to comply with any conditions subject to which the visa is granted; and
(h)the last entry permit (if any) held by the applicant was not granted subject to a condition that the holder would not, after entering Australia, be entitled to be granted an entry permit, or a further entry permit, while the holder remained in Australia.
3004
If the applicant:
(a)ceased to hold a substantive or criminal justice visa on or after 1 September 1994; or
(b)entered Australia unlawfully on or after 1 September 1994 and has not subsequently been granted a substantive visa;
the Minister is satisfied that:
(c)the applicant is not the holder of a substantive visa because of factors beyond the applicant's control; and
(d)there are compelling reasons for granting the visa; and
(e)the applicant has complied substantially with:
(i)       the conditions that apply or applied to:
(A)the last of any entry permits held by the applicant (other than a condition of which the applicant was in breach solely because of the expiry of the entry permit); and
(B)any subsequent bridging visa; or
(ii)      the conditions that apply or applied to:
(A)the last of any substantive visas held by the applicant (other than a condition of which the applicant was in breach solely because the visa ceased to be in effect); and
(B)any subsequent bridging visa; and
(f)either:
(i)       in the case of an applicant referred to in paragraph (a) — the applicant would have been entitled to be granted a visa of the class applied for if the applicant had applied for the visa on the day when the applicant last held a substantive or criminal justice visa; or
(ii)      in the case of an applicant referred to in paragraph (b) — the applicant would have satisfied the criteria (other than any Schedule 3 criteria) for the grant of a visa of the class applied for on the day when the applicant last entered Australia unlawfully; and
(g)the applicant intends to comply with any conditions subject to which the visa is granted; and
(h)if the last visa (if any) held by the applicant was a transitional (temporary) visa, that visa was not subject to a condition that the holder would not, after entering Australia, be entitled to be granted an entry permit, or a further entry permit, while the holder remained in Australia.
3005
A visa or entry permit has not previously been granted to the applicant on the basis of the satisfaction of any of the criteria set out in:
(a)this Schedule; or
(b)Schedule 6 of the Migration (1993) Regulations; or
(c)regulation 35AA or subregulation 42(1A) or (1C) of the Migration (1989) Regulations.

[2022] AATA 1990

7 June 2022

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction