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

1. 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).

2. The visa applicant applied for the visa on 19 August 2021.

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, 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.

4. 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.

5. 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.

6. 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.

7. 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 lower back injury which has resulted in psychological comlications [sic] such as anxiety and depression. She requires ongoing medical treatment and psychological asseeement [sic] intervention. In my opinion, she is not suitable to appear in the court hearing in the next 3 months.

   [1] Medical Certificate from Dr Michael Gu dated 27 April 2022

8. On 6 May 2022 the Tribunal advised that the Member had considered the request and the medical certificate carefully, but decided not to postpone the hearing. The Tribunal Member considered that as the hearing was being conducted by telephone, the applicant was therefore not physically required to go anywhere and could therefore appear before the Tribunal. The medical evidence also did not support that the applicant was incapacitated from giving evidence via telephone. Given the paucity of the medical evidence, the Tribunal did not regard it as reasonable to defer the matter for three months. The Tribunal further noted that the applicant filed her application for review on 15 September 2021 and therefore had over seven months to prepare for the hearing and in the Tribunal’s view has had ample opportunity. The Tribunal has also had regard to the Tribunal’s objective of providing an expeditious mechanism of review.[2]  

   [2] Section 2A of the Administrative Appeals Tribunal Act 1975 (Cth)

9. The applicant appeared before the Tribunal on 12 May 2022 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s son Mr Xiaoqin Hu (hereafter referred to as Mr Hu). The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. The visa applicant’s son asked that he be permitted to give evidence on his mother’s behalf which the visa applicant agreed to and Tribunal Member permitted. The Tribunal Member also took oral evidence from the visa applicant. The Tribunal is satisfied that the visa applicant was accorded procedural fairness and given an adequate opportunity to present her case to the Tribunal.

10. The applicant was represented in relation to the review by their registered migration agent. The representative did not appear at the hearing.

11. In support of the application for review the applicant provided the Tribunal with a written statement and legal submissions dated 10 May 2022 from the representative. 

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

    The 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 apply

    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; and

    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.

    Is criterion 3004 met?

13. 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.

14. 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 that applied to the last of any entry permits, substantive visas and subsequent bridging visas held by the applicant.

15. In addition, the Tribunal must be satisfied that: the applicant would have satisfied the criteria, or would have been entitled to be granted the visa on the day he or she last entered Australia unlawfully or last held a substantive or criminal justice visa; 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.

    Assessment of the evidence in relation to criterion 3004

16. Based on the information available to the Tribunal, the Tribunal is satisfied that the applicant was in Australia at the time of application and did not hold a substantive visa. Therefore the requirements of cl.600.223(2) apply to the applicant. The last substantive visa the applicant held was not a subclass 403 visa. Therefore the applicant meets the requirements of cl.600.223(2)(a). The applicant lodged the application for the visa within 28 days after the expiry of her last substantive visa and therefore satisfies criterion 3001. Criteria 3003 does not apply. It is for this reason that the application for the visa made by the applicant engages criterion 3004.

17. Mr Hu gave evidence that the applicant last held a substantive visa, namely a visitor (subclass 600) visa which ceased on 1 August 2021. Mr Hu confirmed he lodged the visa application which is the subject of this review on 19 August 2021. Therefore, the applicant meets 3004(a). The requirements of 3004(b) are an alternative to 3004(a) and therefore do not apply.

18. In the delegate’s decision record dated 10 September 2021, the delegate found that the applicant did not meet 3004(c), which requires that the applicant was not the holder of a substantive visa at the time of application because of factors beyond the applicant’s control.

19. The representative submitted that there were multiple factors beyond the applicant’s control including; the fact that the applicant was completely reliant on her son to handle her visa issues as she does not speak, read or understand English and is 70 years old; her son was negligent and failed to lodge the visa before the expiry of her substantive visa as he has a busy job, family and young daughter; and the department never sent a reminder to the applicant or her son.

20. At hearing Mr Hu gave evidence that he was responsible for lodging his mother’s visa.

21. The Tribunal Member asked Mr Hu if he had ever used a representative to assist with his mother’s migration matters and whether he had an IMMI, Visa Entitlement Verification Online (VEVO) account or registered email account with the immigration department. Mr Hu stated he had never used a representative and lodged all his mother’s visa applications himself. He also confirmed he had a registered email account with the immigration department which allowed him to receive visa grant notifications. Mr Lin confirmed his mother had been granted a total of four visitor visas between March 2018 and 9 December 2020.

22. The Tribunal Member asked Mr Hu how his mother not holding a substantive visa at the time of application for the visa was because of factors beyond his control. Mr Hu stated his mother last arrived onshore in Australia on 2 September 2019 and had a 12 month visa. He subsequently applied for another visitor visa which he lodged on or about 31 August 2020 and was ultimately granted in December 2020. He erroneously assumed that this visa was also a 12 month visa and ‘misread the notice’. He stated that it was ‘not beyond my control’ and ‘my mistake’ that he did not apply for the visitor visa prior to the expiry of his mother’s last substantive visa. He confirmed he did not contact the Department of Home Affairs prior to the expiry of his mother’s previous substantive visa. No arrangements had been made for his mother to depart Australia such as booking an air flight ticket due to the COVID-19 pandemic.

23. The visa applicant was asked whether she wanted to say anything in addition to her son, including what factors were beyond her control for not applying for the visitor visa whilst she still held a substantive visa. The applicant did not directly answer the question, but stated she wanted to remain in Australia to look after her granddaughter, that she has back pain and needs to rest for a year and is wanting to extend her visa so she can see a physiotherapist.

24. The Tribunal has also had regard to a statement by the visa applicant which detailed her travel history and that she last arrived onshore in Australia in September 2019. Due to the COVID-19 pandemic, her son subsequently applied for a further 12 month visitor visa in August 2020 which was granted in December 2020. The applicant stated given she applied for a 12 month visa, she assumed it would end in September 2021 or the end of August 2021. However, when she started the renewal process for the refused visitor visa with her son on 14 August 2021, they realised that her visa had already expired. They immediately applied for a bridging visa on 15 August 2021 after her substantive visa had expired.

25. In considering whether there were factors beyond the applicant's control, the Tribunal has had regard to the decision in Su v MIAC [2007] FMCA 318; Liu v MIAC [2010] FMCA 60; and Montero v MIBP [2014] FCCA 946.

26. The case of Su & Ors v Minister for Immigration & Anor [2007] FMCA 318 involved Schedule 3 criterion 3004 in the context of a Subclass 457 visa. While the application in that case was dismissed by the Court, the judgment provides guidance on the interpretation of the test of factors beyond the control of a person. Smith FM, referring to the judgment 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:

    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 able 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.

27. In the case of Su[3], the court noted that the applicant could have kept himself informed of the expiry date on his visa in his passport and could have instructed his representative to do something about it. The court found that It was difficult to regard as ‘beyond control’ an event caused by forgetfulness or misunderstanding on the part of the 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.

    [3] Su & Ors v Minister for Immigration & Anor [2007] FMCA 318

28. In Montero v MIBP [2014] FCCA 946 the applicant claimed that he met cl.3004(c) as he had submitted documents to his employer who prepared the application, repeatedly advised them of his visa expiry date, and that this was a type of visa application which required his employer’s assistance to lodge. The Tribunal did not accept it was beyond the applicant’s control to lodge the application within time himself and found that his decision to let the employer lodge the application was a choice made within his control, referring to Su v MIAC [2007] FMCA 318. The court found that the Tribunal made a jurisdictional error by misconstruing or misapplying cl.3004(c). Although the Tribunal referred to the exposition of the expression ‘beyond the control of a person’ in Su, it did not apply it. According to the court in Montero, the Tribunal failed to consider the fact that the applicant could not have applied for the visa without the cooperation of his employer; and that the applicant could not direct his employer to do what it had to do to enable him to apply before his Subclass 572 visa expired. In that regard cl.857.213(a) required that he must have been nominated by an employer for an appointment in the business of that employer.

29. In Liu v MIAC [2010] FMCA 60 the applicant claimed that he did not hold a substantive visa because he misunderstood the duration of the initial visa due to factors beyond his control, being his lack of English, the complexity of the visa system, and the advice he received from the person who assisted him in applying for the initial visa. The Tribunal found these were not factors beyond the applicant’s control that led to him not having a substantive visa. In upholding the Tribunal’s decision, the court reiterated that the test for criterion 3004(c) is a subjective/objective test. First there must be an assessment of the facts to see whether the evidence demonstrates the applicant in his or her own particular circumstances might have been able to do something to prevent the relevant event occurring. Then, if that is satisfied, there must be an assessment of whether or not these facts were within the control of the applicant in a practical or realistic sense, measured objectively.

30. The Tribunal has considered all the evidence, nonetheless, is the applicant’s responsibility to be aware of the expiration date of her visa and to make arrangements to depart Australia during that visa or, if that is not possible, to lodge a further visa whilst holding a substantive visa to regularise her migration status in Australia. As noted in the delegate’s decision record, whilst Melbourne was in lockdown and there were no direct flights to China from Melbourne, the onus is on the applicant to make appropriate arrangements to maintain a lawful status in Australia and abide by their visa conditions. Delegating to her son is not a circumstance out of the applicant’s control. There is also no contemporaneous medical or other evidence to suggest that that the visa applicant was incapacitated or unable to apply for the visitor visa prior to the expiry of her previous visitor visa.

31. Knowledge of the expiration date of her previous visitor visa was information within the applicant’s control. In Liu the court found that lack of English and the complexity of the visa system did not amount to factors beyond the applicant’s control. Similarly, in this case the applicant could have taken steps to apply for the visa in time. The Tribunal further notes that the applicant has been granted a total of four visitor visas and travelled to Australia on multiple occasions, over many years and therefore could have taken the same care as indicated by her prior conduct. The Tribunal has carefully considered the applicant’s written statement and viva voce evidence at hearing; however it is clear that the applicant did not inform herself of the visa expiry date and erroneously assumed that it was 12 months from the date she applied for the visa in August 2020. Applying the above case authorities such conduct falls well short of a factor beyond the applicant’s control. The Tribunal also rejects the representative’s submission that the applicant’s lack of English and reliance on her son constitutes a factor beyond her control and is not supported by any case authority. The Tribunal has had regard to the representative’s submission that the department should have sent the applicant and her son a reminder notice, but rejects this submission, as the onus is on the applicant to read or have read to her and understand the visa grant notices and abide by them.

1. The Tribunal has had regard to Mr Hu’s evidence that he erroneously assumed his mother had been granted a 12 month visa which ran from the date of lodging her last visitor visa application on or about 31 August 2020. However, does not accept that this assumption and misunderstanding constitutes a factor beyond his control. As the court noted in Su[4], Mr Hu could have kept himself informed of the expiry date of his mother’s visa by checking the visa grant notice via his registered email migration account or briefed a representative to do so. There is no credible or independent evidence that Mr Hu was incapacitated or unable to apply for the visitor visa prior to the expiration of the applicant’s previous visitor visa.

   [4] Su & Ors v Minister for Immigration & Anor [2007] FMCA 318

2. In addition, when considering Mr Hu’s evidence of successfully applying for four previous visitor visas the Tribunal does not accept that it constitutes a factor beyond the applicant’s control. Mr Hu would be well aware of the need to apply for visas prior to the expiry of his mother’s previous visas and to contact the Department with any concerns.  While the Tribunal has considerable sympathy for the applicant’s circumstances and accepts that she did not intentionally overstay her visa, the Tribunal is satisfied that the circumstances were not beyond the applicant’s control. The Tribunal is therefore not satisfied that the applicant meets 3004(c).

3. The applicant is an older woman, being aged 69 years from China. The applicant sought a stay longer in Australia due to the COVID-19 pandemic and the travel restrictions in place to assist her son look after his two year old daughter. The Tribunal is therefore satisfied that these are compelling reasons for the grant of the visa and that the applicant meets 3004(d).

4. Based on the evidence before the Tribunal, the Tribunal is satisfied that the applicant has complied substantially with the conditions that applied to her last visitor visa (excluding the condition with which the applicant was in breach because the visa had expired at the time of application for the visa which is the subject of this review), and the Tribunal is satisfied that the applicant has complied substantially with the conditions that applied to the subsequent bridging visa that she was granted. The Tribunal therefore finds the applicant has met the requirements of 3004(e)(ii), and therefore the applicant meets 3004(e).

5. There is no evidence before the Tribunal to indicate that the applicant would not have been entitled to the grant of a visitor visa, if the applicant had applied for the visitor visa whilst the holder of a substantive visa at the time of application. Therefore, the applicant meets 3004(f).

6. Based on the information available to the Tribunal, the Tribunal is satisfied that the applicant intends to comply with the conditions to which the visa would be subject. Therefore, the applicant meets 3004(g).

7. The last visa held by the applicant was not a transitional (temporary) visa, and therefore the requirements of 3004(h) do not apply.

8. 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

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

   Naomi Schmitz
   Member