Yu (Migration)

[2023] AATA 1079

Yu (Migration) [2023] AATA 1079 (20 April 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Young Chul Yu

REPRESENTATIVE:  Mr Zack Zhao (MARN: 1577120)

CASE NUMBER:  2103341

HOME AFFAIRS REFERENCE(S):          BCC2021/123320

MEMBER:Tania Flood

DATE:20 April 2023

PLACE OF DECISION:  Sydney

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

Statement made on 20 April 2023 at 10:50am

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – subclass 600 (Visa)– applicant did not hold a substantive visa at time of lodgement – application fee payment failure – it was not beyond the control of the applicant –decision under review affirmed

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2, cl 600.223, Schedule 3, PIC 3004

CASES
Su & Ors v Minister for Immigration & Anor [2007] FMCA 318
Secretary, Department of Social Security v Secara & Ors (1998) 89 FCR 151

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 (the Department) on 24 February 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 13 January 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 criteria for a Subclass 600 visa are set out in Part 600 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). Relevantly to this case, they include cl 600.223 (2) (b), which requires the visa applicant to satisfy Schedule 3 criteria 3001, 3003, 3004 and 3005 of the Regulations.

4. The delegate refused to grant the visa on the basis that the visa applicant did not meet the criterion of cl 600.223, because the delegate was not satisfied that the applicant satisfied Schedule 3 criterion 3004. 

5. The applicant applied for review of the Department’s refusal to grant a Visitor visa with the Tribunal on 16 March 2021. The visa applicant appeared before the Tribunal on 19 April 2021 to give evidence and present arguments.

6. The applicant was represented in relation to the review.

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

   Application for a Visitor Visa:

8. The visa applicant was granted a Visitor (Tourist) (subclass 600) visa on 9 June 2020.  That visa expired on 9 January 2021.

9. On 13 January 2021, the applicant applied for an extension of his Visitor Visa. The applicant stated in his application that he wished to stay in Australia due to “Covid”. The applicant submitted an invitation letter from a stated stepson dated 16 March 2020. The applicant’s grandson stated he welcomed the applicant to stay at his place in Australia. Copies of statements from an Australian banking institution and passport were provided in support of the applicant’s Visitor visa extension application.

10. On 9 February 2021, the Department wrote to the applicant requesting he address in writing the reasons why he did not hold a substantive visa at time of lodgement, whether there were factors outside his control preventing him from lodging an application whilst holding a substantive visa, and whether there were any compelling reasons for the grant of the visa.

11. The Department received on 12 February 2021, an email from the purported authorised agent acting for the applicant requesting an extension of one week to respond to the Department’s letter.

12. The Department refused the application on 24 February 2021.

    Evidence provided to the Tribunal

13. On 19 April 2023 the applicant’s migration agent provided a submission, accompanied by a statutory declaration made by him and various attachments to support the claims made in the submission.

14. The information provided indicates that the applicant’s daughter contacted the migration agent on 14 December 2020 to discuss her father’s visa.  She was advised by the migration agent that he could extend his stay in Australia by applying for a new Visitor (subclass 600) visa.  Due to the approaching Christmas holiday break the migration agent undertook to complete the application on 9 January 2021, that being the expiry date of the applicant’s visa.   The application was not validly submitted due to a visa application fee payment failure arising from the fact the migration agent did not receive the required “NetCode” or “One Time Password” to finalise the payment by credit card.  It is submitted that the bank sent the OTP to the Smartphone App but as the notifications function was not enabled the message was not received.  The migration agent attempted unsuccessfully to call the bank and also made several phone calls to the applicant on 9 January 2021 to try to resolve the payment issue but the calls were not answered. As a result the application was not validly made on time and it is submitted that this is due to factors beyond the applicant’s control.

    The Tribunal Hearing:

15. The review applicant appeared before the Tribunal on 19 April 2023 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Mikyoung Yu, the applicant’s daughter.

16. During the hearing the applicant confirmed that he has been granted numerous visas to enter Australia in the past and is aware of the importance of complying with visa conditions.  He confirmed he was aware his last Visitor visa had an expiry date of 9 January 2021.

17. The applicant confirmed he engaged a migration agent to ensure his visa application was made on time.  He said that due to his poor English his daughter took responsibility for dealing with the migration agent and producing the required documentation.

18. The Tribunal asked the applicant’s daughter if she ever had prior dealings with the migration agent in question and she said that he is currently assisting her with a partner visa application and so she asked him to also complete her father’s Visitor visa application.  The Tribunal asked whether they were concerned about having the application submitted on the final day of the visa and the applicant’s daughter responded that she didn’t appreciate the risk and trusted the migration agent would complete the task on time.   She said that she had commenced discussions with the migration agent prior to the visa expiry date.

19. The Tribunal asked why they did not attempt to have the migration agent complete the application prior to the holiday break and she replied that the agent had said it was an easy process and so she didn’t think further about it.

20. The Tribunal asked whether they considered looking around for another migration agent to assist them in a timelier manner and the applicant’s daughter replied she didn’t realise she should do that. 

21. The Tribunal asked why the phone calls from the representative to the applicant made on 9 January 2021 were not answered.  The applicant’s daughter stated that her wedding date was approaching and she was very busy with preparations that day.  The applicant stated that he receives a high number of scam calls and so only answers calls from numbers he recognises. 

22. The Tribunal put it to the applicant that it appears there were various options available to him to ensure the visa application was made on time including completing the application himself, commencing the process earlier and/or engaging another migration agent.  He replied that he left the matter in the hands of his daughter who assured him everything would be handled appropriately.  The applicant’s daughter said that at the time her English was not as good as it is now and she felt they needed professional help to complete the application. 

23. The applicant’s migration agent stated that at the time his wife was working in the health care sector and he was required to care for their child and so often worked on a Saturday.  He said the applicant’s daughter called him to follow up the application a few times, the last time being on 5 January 2021.  He said he advised her it would be completed on time.  He argued that finding another migration agent after 14 December 2021 would have been very difficult due to the approach of the holiday season.  He confirmed he was already assisting the applicant’s daughter with her partner visa application and as they had developed a good relationship it was reasonable for her to want him to assist with her father’s Visitor visa application.  He added that while they had previously applied for ETA visas themselves they had never submitted an onshore Visitor visa application.  He also said that he was unable to make the application prior to Christmas as he was lacking some of the required documentation.  He said he received that documentation in stages with the last of it being provided on 4 January 2021.   As to why the applicant did not approach him sooner for assistance he said that they were not certain until 14 December 2020 whether the applicant would or could return home due to the travel restrictions in place at that time.

24. As to whether there are compelling reasons for the grant of the visa now the applicant stated that he has two daughters in Australia.  The youngest is attending Melbourne University and requires his care and support.  The oldest recently suffered a miscarriage and also needs support.   It also transpired that the applicant’s wife is currently in Australia on a Visitor visa valid until around June or July 2023.  The applicant’s daughter argued that each of her parents provides her with a different level of support. 

    CONSIDERATION OF CLAIMS AND EVIDENCE

25. Clause 600.223 provides:

    (1)If the applicant was in Australia at the time of application, and held a substantive temporary visa, the visa was not a Subclass 403 (Temporary Work (International Relations) visa in the Domestic Worker (Diplomatic or Consular) stream.

    (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 or Consular) stream; and

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

26. The issue in this case is whether cl 600.223 (b) is met, specifically whether the applicant satisfied Schedule 3 criterion 3004 which provides that the Minister be satisfied that:

    If the applicant:

    (a)ceased to hold a substantive or criminal justice visa on or after 1 September 1994; and

    (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; or

    (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, while the holder remained in Australia.            

    Does the applicant meet the requirements of cl 600.233?

27. The applicant applied for the Visitor onshore on 13 January 2021 and he gave evidence during the hearing that he was aware his Visitor visa would expire on 9 January 2021.

28. The Tribunal finds that the applicant was in Australia at the time of application and did not hold a substantive visa and the last substantive visa he held was not a Subclass 403 (Temporary Work (International Relations)) visa in the Domestic Worker (Diplomatic or Consular) stream.  On that basis the applicant must satisfy Schedule 3 criteria 3001 and 3004.

    Does the applicant meet criterion 3001?

29. Criterion 3001 requires that the visa application must have been made within 28 days after the relevant day.  The relevant day is defined in criterion 3001(2) as 28 days from the date the applicant last held a substantive visa.

30. The evidence before the Tribunal is that the applicant’s last substantive visa ceased on 9 January 2021 and he lodged his application for a Visitor visa on 13 January 2021.  Therefore his application was lodged within 28 days of the relevant day and he meets criterion 3001.

31. He must also meet criterion 3004.

    Does the applicant meet criterion 3004?

32. As set out above, criterion 3004 includes a number of requirements.  Criterion 3004(c) requires that the Minister be satisfied that the applicant is not the holder of a substantive visa because of factors beyond the applicant’s control.

33. In considering whether there are reasons which constitute factors beyond the applicant’s control the Tribunal has had regard to Departmental policy in respect of criteria 3004.  The policy notes that the phrase ‘factors beyond the applicant’s control’ is to be given its natural meaning and considered against all relevant circumstances of the applicant.  Some circumstances may clearly meet the test, for example where a serious accident or illness renders the applicant incapable of making an application whereas other situations will be more difficult to assess, for example where an applicant claims to have been unaware that they were without a substantive visa or misunderstood the period during which their visa was in effect or misunderstood the conditions attached to their visa.

34. The Tribunal has also had regard to the decision in Su & Ors v Minister for Immigration & Anor [2007] FMCA 318, which involved a Subclass 457 visa and Schedule 3 criterion 3004. While the application in that case was dismissed by the Court, the judgement provides guidance on the interpretation of the test of factors beyond the control of a person.

35. Smith FM, referring to the judgement of Mansfield J in Secretary, Department of Social Security v Secara & Ors (1998) 89 FCR 151, states at [17] that two useful points emerge from that case:

36. The first is that a test of whether something was beyond the control of a person requires a consideration of whether that person, in his or her own particular circumstances, might have been unable to do something to prevent the relevant event occurring.  The test is in that sense “subjective” rather than being directed at deciding what would have been beyond the control of an abstract or “reasonable” person.  A second point is that what is “beyond control” should be tested by considering whether the happening of the event was or was not within the control of the applicant in a practical or realistic sense.

37. Smith FM goes on to refer to further discussion by Mansfield J making the point that it is difficult to regard as “beyond control” an event caused by forgetfulness or misunderstanding on the part of a person, where it was within the capacity of the person to appreciate what was needed and to perform an action which would have avoided the event occurring. 

38. The Tribunal has considered the evidence of the applicant and his daughter and the submissions made by the migration agent.  The Tribunal is satisfied the visa applicant was aware that his visa would expire on 9 January 2021.  The Tribunal accepts that efforts were made by the applicant, with his daughter assistance, to ensure that he held a substantive visa at the time of the application for the Visitor visa.  The Tribunal also accepts the circumstances outlined by the migration agent in respect of the application fee payment failure.  Regrettably though the fact remains that the application was not made in time.  

39. Tribunal has some sympathy for the applicant in the circumstances however, as discussed with him during the hearing the arrangements which were entered into with the migration agent, namely that the application would only be lodged on the day the substantive visa expired, presented a degree of risk that arguably could have been avoided.   While the applicant and his daughter indicated during the hearing that they put their trust in the migration agent, as discussed with them it is nevertheless the responsibility of the visa holder to make sure that he complies with the conditions of his visa, including needing to make any further application for a Visitor visa before the cease date of the visa he held.  

40. As discussed with the applicant and his daughter during the hearing, the Tribunal considers the applicant could have taken steps to ensure, with greater certainty, that his visa application was made in time.  For instance, the Tribunal considers it was open to him to engage a different migration agent upon learning that his chosen migration agent would only be able to process the application on the date his visa was due to expire.  While it is argued that this would likely have been impossible given the approach of the holiday season there is no evidence before the Tribunal to support that such an attempt was made or that any request was declined due to short notice.  While the Tribunal accepts the applicant’s daughter made follow up calls to the migration agent in the lead up to the expiry of her father’s visa neither she, nor the applicant, appear to have tried to contact the migration agent on the day the application was scheduled to be made, despite knowing this was the final date for lodgement of the new visa application.  Indeed, the available evidence indicates that the migration agent made several attempts to call the visa applicant on 9 January 2021 to find a solution to the payment problem but that those calls went unanswered.  While the Tribunal acknowledges the applicant’s evidence that he does not pick up telephone calls from unknown numbers it nevertheless considers he might have been more alert and willing to do so knowing that his visa was expiring on the very day his migration agent had promised to lodge the application.

41. Furthermore, the Tribunal has had regard to Departmental policy advice in respect of Schedule 3 criteria 3004 which provides some relevant guidance in respect of the circumstances of this case, in particular, in situations where an applicant advises that their agent or lawyer was responsible for not making the application prior to their substantive visa ceasing.  Relevantly, it is noted that under law, the actions of the applicant’s agent or lawyer are taken to be those of the applicant.  Failure by an agent or lawyer to act in their client’s best interests may be grounds for the client to take legal action but would not normally be grounds for finding that the applicant became an illegal entrant, or a person in Australia without a substantive visa, due to factors beyond their control.   

42. The Tribunal notes that there are no apparent issues in respect of the applicant’s compliance with past visa conditions and that there is no suggestion he was intending to breach Australia’s immigration laws.  However, for the above reasons the Tribunal has concluded that it was not beyond the control of the applicant or the applicant’s daughter upon whom he had relied, to have taken steps to ensure his application for a Visitor visa was made before his substantive visa ceased on 9 January 2021.  Any problems encountered by the applicant’s migration agent in processing the payment for the Visitor visa application, while regrettable, is not in the Tribunals opinion, a factor beyond the applicant’s control having regard to the natural meaning of this phrase, relevant case law and Departmental policy.

    Conclusion

1. The Tribunal does not accept that the applicant was not the holder of a substantive visa at the time of application for the Visitor visa because of factors beyond his control.

2. Accordingly, the Tribunal finds that the applicant does not meet the requirement in criterion 3004(c) and is unable to satisfy criterion 3004 in its entirety. This being the case, it is not necessary for the Tribunal to consider and make findings about whether there are compelling reasons for granting the visa under criterion 3004(d).

3. As the applicant does not satisfy criterion 3004 the applicant is unable to meet the requirements of cl 600.223(2)(b).  Accordingly, the Tribunal is not satisfied that the applicant meets the requirements of cl 600.223.

   DECISION

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

   Tania Flood
   Member