Yu (Migration)

[2021] AATA 1907

Yu (Migration) [2021] AATA 1907 (4 June 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Xin Yu

CASE NUMBER:  2102154

DIBP REFERENCE(S):  BCC2020/1978588

MEMBER:Anne Grant

DATE:4 June 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a Visitor (Tourist) (subclass 600) visa.

Statement made on 04 June 2021 at 11:17am

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – Tourist stream – not holder of substantive visa at time of application – Schedule 3 criteria – application lodged outside of relevant timeframe – reliable witnesses – circumstances beyond the applicant’s control – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65

Migration Regulations 1994 (Cth), Schedule 2, cl 600.223; Schedule 3, PIC 3001

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 Immigration on 5 February 2021 to refuse to grant the applicant a Visitor Visa (subclass 600) under s.65 of the Migration Act 1958 (the Act).

1. The applicant applied for the visa on 27 July 2020. At the time the visa application was lodged, Class FA contained one subclass, Subclass 600 (Visitor), with four streams. In this case, the visa applicant applied for the visa seeking to satisfy the primary criteria in the Tourist visa subclass stream.

2. The delegate refused to grant the applicant the visa because the application was made more than 28 days after the last substantive visa held by the applicant ceased.  The delegate found that therefore the applicant does not satisfy the requirements of PIC 3001 and cl. 602.223 and therefore could not be granted the visa.

1. The applicant appeared before the Tribunal by video on 3 June 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance   of an interpreter in the Mandarin and English languages.  The applicant was represented at the hearing by her migration agent Ms Grace Chen.  Her daughter Muxuan Yu also participated in the hearing and gave brief evidence consistent with her written submissions made to the Department.

2. The relevant regulations and criteria are attached to this document.  Clause 602.223 applies to applicants who were in Australia at the time the visa application was made. It relevantly requires that the applicant at that time either held a substantive temporary visa of a specified type, and the visa was not a subclass 403 (Temporary Work (International Relations)) visa in the Domestic Worker (Diplomatic or Consular) stream. The applicant must also satisfy all of the criteria in Schedule 3 clauses 3001, 3003, 3004 and 3005.  There is no discretion within this part of the legislation for a decision maker to waive or vary the requirements in PIC 3001, regardless of the applicant’s circumstances.

1. The issue in this case is therefore  whether the applicant satisfies the requirements in cl.602.223 and PIC 3001.

   CONSIDERATION
   Information and evidence before the Tribunal

1. At hearing, the applicant confirmed that her FA 600 Tourist visa expired on 19 June 2020.   She confirmed that she made the present application on 27 July 2020 after an earlier application was deemed invalid due to it being improperly lodged.

2. On file was a letter from Miss Yu which outlined the visa application history as follows:

   "Dear Rona, My name is Muxuan Yu and I am writing on behalf of my mother, Xin Yu, with regards to reviewing the unfavourable information about her missing important dates regarding her 600 visa.

   Firstly I acknowledge that not having correctly submitted my mother’s 600 visa within 28 days after the expiry of her previous substantive visa was a big mistake and we apologise for the additional workload and wasted resources for the Department. I wish to personally implore you to take the following into consideration given that the rejection of her 600 visa could have a detrimental impact on our lives.  My mother is 60 years old and is of the age where she is emotionally vulnerable and needs to be near me so that I can care for her as she has always cared for me. I have submitted a subclass 143 visa for her and it pains me to think that this potentially unsuccessful visa application may later have a negative impact on the contributory parent visa.  My mother has raised me, her only child, as a single mother so I am undoubtedly the most important person in her life as she is mine. As a daughter, I sincerely ask for you to please consider this when hearing the reasons behind the inability to complete her application on time.

   Due to a lack of understanding my mother missed renewing her visa which expired on 19th of June 2020 and was contacted advising her as such. I generally assist my mother with a vast amount of tasks given her inability to communicate in English. This along with me having had a surgery around this time resulted in her attempting to deal with this on her own so as to not burden me and she opted to communicate with a Chinese travel agency to resolve the issue. The agency she employed unbeknownst to me was not aware of the correct process of applying for the subclass 600 visa in her situation. The agency immediately applied for a BVE visa and submitted an online application for a 600 visa, well within 28 days of whether last substantive visa ceased to be in effect.

   On the 17th of July (the 28th day after her substantive visa expired) my mother was informed that her online visa 600 application was invalid and a paper form application needed to be posted for a correct submission. At this time my mother contacted me in a frantically stressed state and I then learned of the extent of the problem she was facing. Even if I were able to complete this application in a day, it would not have been possible for it to have been submitted on time. I am aware that this is still our responsibility to submit the correct application within the correct timeframe and we take full ownership for the negligence. Having learnt this painful lesson, we will ensure that this will never happen again.

   Furthermore, my mother was supposed to leave the country as part of her visa requirements when her substantive visa expired. At this time the COVID 19 pandemic was in full flare and there were very limited international flights. Flight regulations were changing constantly resulting in unforeseeable risks and the potential of being stranded in stopover airports where she would be alone, scared and helpless. My mother looked for flights but was unable to successfully make a booking. She was also very worried given that she is within the age group that is highly susceptible to contracting the virus and flights continue to pose a significant threat.

   Prior to this incident, my mother has had a superb immigration history and she has always complied with deadlines for documents and dutifully adheres to visa entry conditions. It was not her intention to purposefully miss the visa expiration date and she feels completely terrible for having done so. We love Australia and we long to be able to call it our home. I have the ability to support my mother financially and she has a sufficient deposit in the bank. She has perfect health and holds a current OVHC. I have an Australian tertiary education having achieved a masters of social work and I have devoted the life of my working career to providing care and support to vulnerable children and families living in Australia. I hope that you will take this into consideration when making your decision. Thank you for your time and the opportunity to express my thoughts to you.

   Yours faithfully,
   Muxuan YU.

3. Miss Yu confirmed the information in her letter (reproduced in full above) was true.   

4. The applicant’s representative submitted that the Tribunal must have some discretion in matters affected by global pandemics and other natural and man-made disasters which would enable circumstances as those outlined in Miss Yu’s letter to be taken into consideration.  She was unable to direct the Tribunal to any general discretion within the legislation and regulations which permitted a decision maker to bypass the requirements in cl. 602.223 and PIC 3001 in considering visa applications of this nature.    

5. The Tribunal found the applicant and her daughter to be reliable witnesses.  The Tribunal observes that the applicant’s circumstances as outlined above are most unfortunate.   Her migration history reflects that she has entered and departed Australia on multiple occasions in compliance with visa conditions in the past. Based on her evidence, that of her daughter and her migration history, the Tribunal is satisfied that the applicant had genuinely tried to renew her visa within appropriate time periods and to ensure her visa status remained legal.  The Tribunal considers that due to circumstances beyond her control, (including the effects of the pandemic, poor advice from an agent, her daughter’s temporary ill-health and delay from the Department in notifying her that her earlier (timely) online visa application was invalid), those efforts failed. 

   Is criterion 3001 met?

1. 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 cl.3001(2).  That is 28 days from the date that the applicant last held a substantive visa.

1. On the information before it, the Tribunal finds that the applicant last arrived in Australia on 19 March 2020 on a FA 600 Tourist visa which was valid until 19 June 2020. This was the last               substantive visa that the applicant held. The present application was made on 27 July 2020.  As the visa application was not made within 28 days of the relevant day, the applicant does  not satisfy PIC 3001.

1. For these reasons, the applicant does not satisfy cl.602.223.

2. Based on the findings above, the applicant does not meet the requirements for the grant of the visa. The decision under review will be affirmed.

DECISION

1. The Tribunal affirms the decision not to grant the applicant a Visitor (Tourist) (subclass 600) visa.

Anne Grant  Member

ATTACHMENT

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.

3005A 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.

Note:Section 10 of the Act provides that a child who was born in the migration zone and was a non-citizen when he or she was born shall be taken to have entered Australia when he or she was born.