Yu (Migration)
[2022] AATA 1288
•5 May 2022
Yu (Migration) [2022] AATA 1288 (5 May 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT: Lihong Yu
CASE NUMBER: 2108672
HOME AFFAIRS REFERENCE: BCC2021/433145
MEMBER:Lilly Mojsin
DATE:5 May 2022
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the visa applicant a Visitor (Class FA) visa.
Statement made on 5 May 2022 at 11.22 am
CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – tourist stream – applicant not holder of substantive visa at time of making application – mistake as to expiry date of previous visa not a factor beyond applicant’s control – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 600.223(2), Schedule 3, criterion 3004(c)
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 16 June 2021 to refuse to grant the visa applicant a Visitor (Class FA) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The visa applicant applied for the visa on 22 March 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.
The delegate refused to grant the visa on the basis that the applicant did not meet cl 600.223 because at the time of lodgement the applicant did not satisfy the requirements of Schedule 3, criterion 3004.
On 22 March 2021, the applicant applied to this Tribunal for a review of that decision, attaching a copy of the Department decision to the review application.
The applicant appeared before the Tribunal on 5 May 2022 via MS Teams video with the assistance of a Mandarin interpreter. In making arrangements to hear the matter via MS Teams during COVID, the Tribunal had regard to the legislative objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by video.
The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments in the format which was utilised. The Tribunal was able to interact with the applicants and the interpreter and all parties were able to maintain line of sight and appropriate communication throughout the proceedings. The Tribunal is satisfied that the hearings provided a real opportunity to be heard.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this review is whether cl.600.223, set out in the attachment to this decision, is met.
Clause 600.223(2) 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, and the last substantive visa held was not a subclass 403 (Temporary Work (International Relations)) visa in the Domestic Worker (Diplomatic or Consular) stream, the applicant must satisfy Schedule 3 criteria 3001, 3003, 3004 and 3005.
The delegate found that the applicant did not satisfy the requirements of criterion 3004.
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, 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 applicant’s decision record, filed with the Tribunal, indicates the last substantive visa held by the applicant was a Visitor (Tourist) (subclass 600) visa which ceased on 4 March 2021. The applicant applied for a Visitor (Tourist) (subclass 600) visa on 22 March 2021 and was not the holder of a substantive visa at that time. Therefore, the applicant is required to satisfy the requirements of cl.600.223(2).
The records of the Department indicate that on 31 May 2021, the Department requested the applicant address the delay in the application and enquired whether there were any factors outside the applicant’s control which prevented the applicant from applying within time and whether there were any compelling reasons for the grant of the visa.
The applicant responded on 2 June 2021 stating she had mistakenly thought her visa expired in April 2021. The applicant stated that she wished to remain in Australia with her husband and two underage children who are Australian citizens.
The delegate was not satisfied that these were factors beyond the applicant's control which prevented the applicant from lodging the application for a subclass 600 Visitor visa whilst the holder of a substantive visa or that there were compelling reasons for the grant of the visa.
At the Tribunal hearing, held on 5 May 2022, the applicant explained that she has been in Australia since 2001. Her children were both born in Australia. They are 17 and 18-years old. Her husband has had cancer and has had treatment.
The applicant explained that she understood she had overstayed her visa and that was why the Department refused to grant this visa. The applicant explained her previous visitor visa expired on 4 March 2021 and she had received notification on 8 March 2021 informing her the visa had expired. The applicant applied for a Bridging visa immediately and for this Visitor visa on 22 March 2021.
The Tribunal enquired as to whether there were factors outside of the applicant’s control which prevented her from lodging the visa application. The applicant explained she had mistakenly believed the expiry date of her visa was in April, not March. The applicant acknowledged this was her mistaken belief and that she had forgotten. She said she had been too busy with life.
Having considered all the evidence and the submission, the Tribunal finds that the applicant ceased to hold a substantive visa on or after 1 September 1994, being 4 March 2021.
The Tribunal found the applicant to be honest and forthright in giving her evidence and accepts that the applicant was mistaken as to the date of expiry of her substantive visa and is sympathetic to the applicant’s situation.
However, while it accepts that the applicant was somewhat engaged with her family and her husband’s medical condition, she was required to take steps to apply for a visa. The Tribunal considers that the applicant’s failure to apply for the visitor visa while she was the holder of a substantive was not caused by factors beyond her control. It was within the applicant's control to be aware of the Department's visa requirements and to ensure compliance with those requirements.
Therefore, the Tribunal is not satisfied that the applicant was not the holder of a substantive visa at the time of application due to factors beyond the applicant’s control.
For the above reasons, the applicant does not satisfy criterion 3004.
Accordingly, the Tribunal finds that the applicant does not meet the requirements of Schedule 3, criterion 3004(c).
As the applicant does not satisfy criterion 3004(c), the applicant is unable to satisfy criterion 3004 in its entirety.
As the Tribunal is not satisfied that the applicant meets the requirements of 3004 it is not necessary to consider the remaining Schedule 3 criteria.
As the applicant does not satisfy criterion 3004, the applicant is unable to meet the requirements of cl.600.223(2)(b) and accordingly 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.
Lilly Mojsin
MemberATTACHMENT - Extract from Migration Regulations 1994
Schedule 2
600.223
(1)If the applicant was in Australia at the time of the 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 satisfies Schedule 3 criteria 3001, 3003, 3004 and 3005.
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.
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Procedural Fairness
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Statutory Construction
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Jurisdiction
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