Zeng (Migration) - [2022] AATA 1825

Zeng (Migration) [2022] AATA 1825 (1 June 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ms Qingxiu Zeng
REPRESENTATIVE:  Ms Lu Jiao (MARN: 1467887)
CASE NUMBER:  2112434
HOME AFFAIRS REFERENCE(S):          BCC2021/1638626
MEMBER:Naomi Schmitz
DATE:1 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 01 June 2022 at 12:13pm
CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – application made after last substantive visa ceased – factors beyond applicant’s control – age, lack of English and reliance on son, who misread notice – COVID-19 restrictions – visa history – applicant’s responsibility to maintain lawful status – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 600.223, Schedule 3, criterion 3004(c)
Administrative Appeals Tribunal Act 1975 (Cth), s 2A
CASES
Liu v MIAC [2010] FMCA 60
Montero v MIBP [2014] FCCA 946
Secretary, Department of Social Security v Secara (1989) 89 FCR 151
Su v MIAC [2007] FMCA 318
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 10 September 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 19 August 2021.
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, which requires if the visa applicant lodges the application in Australia, that the visa applicant satisfies the requirements of Schedule 3 criterion 3001, 3003, 3004 and 3005.
The delegate refused to grant the visa on the basis that the visa applicant did not meet cl 600.223 because the delegate was not satisfied that the applicant met the requirements of Schedule 3004. Relevantly in this case, the delegate was not satisfied that the visa applicant satisfied criteria 3004(c), that the applicant was not the holder of a substantive visa because of factors beyond the applicant’s control.
On 15 September 2021 the applicant applied to the Tribunal for a review of the refusal decision. The applicant provided a copy of the delegate’s decision record to the Tribunal.
On 22 April 2022 the applicant was invited to appear before the Tribunal on 12 May 2022 at 9:30am via telephone in the Multiple Applicant Phone List. The Tribunal was required to do this because it had considered the information it had and was unable to make a decision favourable to the applicant.
On 2 May 2022 the representative requested that the hearing be postponed and submitted a medical certificate which stated: [1]
I wirte [sic] in my capacity as the family Doctor of Mrs Qingxiu Zeng, to certify that she has been suffering from medical conditions, including…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Zeng (Migration)

Details

AGLC: Zeng (Migration) [2022] AATA 1825
Case: [2022] AATA 1825
Decision Date: 1 June 2022

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered an application for a Visitor (Class FA) visa, Subclass 600, made by Ms. Zeng. The dispute arose because Ms. Zeng applied for the visa after her last substantive visa had ceased. The Tribunal was required to determine whether Ms. Zeng met the criteria for the grant of the visa, specifically focusing on Schedule 3 criteria, including criterion 3004.

The central legal issue was whether Ms. Zeng satisfied criterion 3004 of Schedule 3, which requires the Minister to be satisfied that the applicant is not holding a substantive visa due to factors beyond their control, that there are compelling reasons for granting the visa, and that the applicant has substantially complied with visa conditions. The Tribunal also considered whether Ms. Zeng would have been entitled to the visa had she applied when she last held a substantive visa.

The Tribunal reasoned that while Ms. Zeng argued that factors beyond her control, such as her age, lack of English, reliance on her son who misread a notice, and COVID-19 restrictions, prevented her from maintaining lawful status, these factors did not satisfy the stringent requirements of criterion 3004. The Tribunal emphasised the applicant's responsibility to maintain lawful status in Australia. It found that Ms. Zeng had not substantially complied with the conditions of her previous visa and that she had not demonstrated that she would have been entitled to the visa had she applied earlier.

Consequently, the Tribunal affirmed the decision not to grant Ms. Zeng a Visitor (Class FA) visa, Subclass 600, as she failed to satisfy the applicable criteria.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCEThe requirements of cl.600.223 (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 satisfies Schedule 3 criteria 3001, 3003, 3004 and 3005.The requirements of Schedule 3004 applyIf 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; andthe 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.Is criterion 3004 met? Criterion 3004 applies to applicants 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 have not subsequently been granted a substantive visa.

Decision

Reasons for decision

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.Naomi SchmitzMember

Ratio Decidendi

Legal Principle Established

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