Zhang (Migration) - [2025] ARTA 671

Zhang (Migration) [2025] ARTA 671 (15 April 2025)
DECISION AND
REASONS FOR DECISION
Tribunal Number:       2410978
Applicant:Mr Rong Zhang
Visa Applicants:  Mr Dengzhi Zhang
Ms Shanping Zhang

Respondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 2410978
2410985

Tribunal:Senior Member G Cullen
Place:Sydney
Date: 15 April 2025
Decision:The Tribunal sets aside the decisions under review and remits the applications for Visitor (Class FA) visas with an order that the visa applicants meet the following criteria for a Subclass 600 (Visitor) visa:
· Public Interest Criterion 4020 for the purposes of cl 600.213(1) of Schedule 2 to the Regulations.

Statement made on 15 April 2025 at 8:58am
CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – false or misleading information – previously overstaying Visitor visas briefly – departures delayed during initial COVID19 pandemic period – no element of fraud or deception – decision under review remitted
LEGISLATION
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024
Migration Act 1958, ss 5(1), 65
Migration Regulations 1994, Schedule 2, cl 600.213; Schedule 4 Public Interest Criterion 4020
CASES
Arora v MIBP [2016] FCAFC 35
Batra v MIAC [2013] FCA 274
Trivedi v MIBP [2014] FCAFC 42
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This decision considers applications for review of decisions made by a delegate of the Minister on 15 April 2024 to refuse to grant the visa applicants Visitor (Class FA) Subclass 600 visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The visa applicants applied for the visas on 12 March 2024. At the time the visa applications were lodged, Class FA contained one subclass, Subclass 600 (Visitor), with a number of different streams. In this case the applicants applied for the visas seeking to satisfy the primary criteria in the Sponsored Family stream.
The delegate, in separate decisions, refused to grant the visas on the basis that the applicants did not satisfy the requirements of cl.600.213(1) of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the visa applicants had provided false or misleading information in a material particular in their applications for their visas and therefore did not meet Public Interest Criterion 4020 (PIC 4020).
The review applicant, the visa applicants’ son, applied to the Administrative Appeals Tribunal (AAT) on 7 May 2024 for a review of the delegate’s decisions.
On 14 October 2024, the AAT became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth) (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
The review applicant, being the son of the visa applicants, appeared before the Tribunal…

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 Zhang (Migration)

Details

AGLC: Zhang (Migration) [2025] ARTA 671
Case: [2025] ARTA 671
Decision Date: 15 April 2025

CaseChat Overview and Summary

The case involves two Chinese citizens who applied for a Subclass 600 (Visitor) visa in the Sponsored Family stream, seeking to visit their son and newborn grandson in Australia. The applicants, who are 70 years old and do not speak, read, or write English, were represented by their son, a permanent resident of Australia. The applicants previously overstayed their Visitor visas briefly due to difficulties departing Australia during the initial period of the COVID-19 pandemic. They were unaware that their delayed departure constituted an overstay and had applied for Bridging Visa Es, as per the Department's website, to stay lawfully while making arrangements to leave.

The primary legal issue before the Tribunal was whether the applicants had provided false or misleading information in a material particular, as required by Public Interest Criterion 4020 (PIC 4020) under the Migration Regulations 1994. The Tribunal considered the applicants' explanation that they misunderstood the concept of "overstay," and that their delayed departure was beyond their control due to the COVID-19 pandemic. The Tribunal examined the applicants' submissions, including evidence of their attempts to secure flights back to China and their application for Bridging Visa Es. The Tribunal also noted that the applicants had no intention of providing false or misleading information and that they believed they were acting lawfully.

The Tribunal concluded that there was no evidence that the applicants had purposely misled the Department regarding their departure dates. The Tribunal found that the applicants' misunderstanding of the term "overstay" and their genuine efforts to depart Australia as soon as possible due to the pandemic circumstances did not constitute false or misleading information. The Tribunal set aside the delegate's decision and remitted the matter for reconsideration, finding that the applicants satisfied PIC 4020 for the purposes of the visa grant. The Tribunal emphasised that the applicants' situation did not involve fraud or deception, and that the waiver provisions under PIC 4020 could be considered if there were compelling or compassionate reasons for granting the visa.

In summary, the Tribunal found that the applicants' delay in departing Australia due to the COVID-19 pandemic did not amount to providing false or misleading information. The Tribunal set aside the delegate's decision and remitted the matter for reconsideration, highlighting the applicants' genuine efforts to comply with visa conditions and their misunderstanding of the term "overstay." The Tribunal also noted that there were no compelling or compassionate reasons justifying a waiver under PIC 4020.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

For the following reasons, the Tribunal has concluded that the decisions under review are set aside and the matters should be remitted for reconsideration.BACKGROUND On 12 March 2024 each of the visa applicants lodged a Subclass 600 Visitor visa application form in the Sponsored Family stream. The visa applicants are Chinse citizens, living in China and are both 70 years of age. They are the parents of the review applicant and each other’s spouse. The review applicant is a permanent resident in Australia. His spouse is also a permanent resident and he has two children, one of whom was born in Australia and is an Australian citizen. At hearing the review applicant advised he completed the application forms for the Visitor visas of his parents, as they do not speak, read or write English. In the applications for the Visitor visas the visa applicants declared ‘No’ to the following question under ‘Character Declarations’ in their respective application forms:Has any applicant ever overstayed a visa in any country (including Australia)? On 8 April 2024 the visa applicants were sent similar letters by the Department outlining that they had previously overstayed their Visitor visas. It noted that they were granted Bridging E visas, which lead to a PIC 4014 three-year exclusion period. The visa applicants responded with similar Notification of Incorrect answers forms. Below is a summary of their evidence in those forms.·They should have answered yes to the above question.·They had no intention of providing false or misleading information. ·They misunderstood what is regarded as “overstay.”·They entered Australia on 6 September 2019 but due to Covid their flight was cancelled, and they could not depart until 28 October 2020.·As a result, they applied for Bridging Visa Es as the Department website notes that this visa “ allows you to stay in Australia lawfully while making arrangements to leave” and that was the situation they were in.·As they departed before the Bridging Visa E expired on 25 November 2020, they did not consider that they overstayed.·It was only after receiving the email from the Department on 8 April 2024 that they realised their situation was considered an overstay. ·It was beyond their control, and they could not depart as there were no flights to China due to Covid.·They wish to visit their son and newborn grandson. On 15 April 2024 the delegate found that both visa applicants had provided false and misleading information and was of the view that the visa applicants had purposely misled the Department regarding not departing prior to their Visitor visas ceasing. Prior to the hearing, the review applicant made a submission to the Tribunal in both matters, summarised as follows. In a statutory declaration the review applicant noted that as there were difficulties departing from Australia to China on 6 February 2020 prior to their Visitor visa ceasing. This was due to Covid. They applied for further onshore Visitor visas which were granted, valid to 20 August 2020. From May 2020 they continued to monitor flights daily as the visa applicants wished to return home, however, it was very difficult to secure any tickets due to Covid and the impact on travel. Due to Covid air tickets to China were limited and frequently cancelled. On occasion they were available, but they were about $10,000 per person and not reliable. Additionally, safety was their priority as the visa applicants were aged. On 24 June 2020, the review applicant finally secured departure tickets for the visa applicants on to 2 November 2020. Attached was a copy of the email confirming the purchase of the tickets to depart on 2 November 2020. There was a gap of around 70 days between the last day of their Visitor visas and their departure date. The visa applicants did not want further Visitor visas as they wanted to return home as soon they could. The review applicant explored the options via the Department’s website and noted that it stated that a Bridging Visa E “allows you to stay in Australia lawfully while you make arrangements to leave.” As his parents, the visa applicants, wanted to depart while waiting for their flights, he believed this was the suitable visa for them. On 20 August 2020, being the last day of their visitor visas he attempted to apply for Bridging Visa Es for the visa applicants but the message was that he must lodge these visas after the Visitor visas expired. Consequently, he submitted the applications for the Bridging E Visas at the earliest possible day being 21 August 2020 which is the earliest the system would allow it. On 25 August 2020, Bridging E Visas were granted to the visa applicants. These were valid until 25 November 2020. He did not ever believe that the four days between 21 August 2020 and 24 of August 2020 would make them unlawful or would be seen as overstaying because he did everything he could for them to stay legal in Australia. He submitted that had the Bridging E visas been granted to them on 21 August 2020 they would not have been unlawful. An earlier flight became available on 28 October 2020, so the visa applicants departed on that date.

Evidence

Evidence Before The Court

At the hearing held on 14 April 2025 the Tribunal outlined the requirements of PIC 4020 including the waiver provisions and advised the applicant that the issue before the Tribunal is whether there is evidence that the visa applicants have given or caused to be given false or misleading information in a material particular. It raised the adverse information. The applicant reiterated the evidence as outlined in the above submissions. CONSIDERATION OF CLAIMS AND EVIDENCE The issue in this review is whether the visa applicants meet Public Interest Criterion 4020 (PIC 4020) as required by cl 600.213(1) for the grant of the visas. Broadly speaking, this requires that:·there is no evidence that the applicant has given, or caused to be given, to the Minister, an officer, the Tribunal, a relevant assessing authority, or Medical officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to the application for the visa or a visa that the applicant held in the 12 months before the application was made: PIC 4020(1); and·the applicant and each member of the family unit has not been refused a visa because of a failure to satisfy PIC 4020(1) during the period starting 3 years before the application was made and ending when the visa is granted or refused, unless the applicant was under 18 at the time the application for the refused visa was made: PIC 4020(2) and (2AA); and·the applicant satisfies the Minister as to his or her identity: PIC 4020(2A); and·neither the applicant nor any family unit member has been refused a visa because of a failure to satisfy PIC 4020(2A) during the period starting 10 years before the application was made and ending when the visa is granted or refused, unless the applicant was under 18 at the time the application for the refused visa was made: PIC 4020(2B) and (2BA). The requirements in PIC 4020(1) and (2) can be waived if there are certain compelling or compassionate reasons justifying the granting of the visa: PIC 4020(4). However, this waiver does not apply to the identity requirements in PIC 4020(2A) and (2B). PIC 4020 is extracted in the attachment to this decision.Has the applicant given, or caused to be given a bogus document, or information that is false or misleading in material particular? The term ‘information that is false or misleading in a material particular’ is defined in PIC 4020(5) and the term ‘bogus document’ is defined in s 5(1) of the Act (see the attachment to this decision). In contrast to the definition of ‘information that is false or misleading in a material particular’ in PIC 4020(5), the reference in the definition of bogus document to a document that was obtained because of a ‘false or misleading’ statement has no requirement that it be relevant to a criterion for the grant of the visa: Arora v MIBP [2016] FCAFC 35; Batra v MIAC [2013] FCA 274. The requirement in PIC 4020(1) not to provide a bogus document, or false or misleading information, applies whether or not the Minister became aware of the bogus document or information that is false or misleading in a material particular because of information given by the applicant: PIC 4020(3). It also applies whether or not the document or information was provided by the applicant knowingly or unwittingly.

Decision

Reasons for decision

On the basis of the above, the visa applicants satisfy PIC 4020 for the purposes of cl 600.213(1).DECISION The Tribunal sets aside the decisions under review and remits the applications for Visitor (Class FA) visas with an order that the visa applicants meet the following criteria for a Subclass 600 (Visitor) visa:·Public Interest Criterion 4020 for the purposes of cl 600.213(1) of Schedule 2 to the Regulations.Date(s) of hearing: 14 April 2025Representative for the Applicants: Ms Tianran LiuATTACHMENTMigration Regulations 1994Schedule 44020(1) There is no evidence before the Minister that the applicant has given, or caused to be given, to the Minister, an officer, the Tribunal during the review of a Part 5 reviewable decision, a relevant assessing authority or a Medical Officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to:(a)the application for the visa; or(b)a visa that the applicant held in the period of 12 months before the application was made.(2)The Minister is satisfied that during the period:(a)starting 3 years before the application was made; and(b)ending when the Minister makes a decision to grant or refuse to grant the visa;the applicant and each member of the family unit of the applicant has not been refused a visa because of a failure to satisfy the criteria in subclause (1).(2AA)However, subclause (2) does not apply to the applicant if, at the time the application for the refused visa was made, the applicant was under 18.(2A)The applicant satisfies the Minister as to the applicant’s identity.(2B)The Minister is satisfied that during the period:(a)starting 10 years before the application was made; and(b)ending when the Minister makes a decision to grant or refuse to grant the visa;neither the applicant, nor any member of the family unit of the applicant, has been refused a visa because of a failure to satisfy the criteria in subclause (2A).(2BA)However, subclause (2B) does not apply to the applicant if, at the time the application for the refused visa was made, the applicant was under 18.(3)To avoid doubt, subclauses (1) and (2) apply whether or not the Minister became aware of the bogus document or information that is false or misleading in a material particular because of information given by the applicant.(4)The Minister may waive the requirements of any or all of paragraphs (1)(a) or (b) and subclause (2) if satisfied that:(a)compelling circumstances that affect the interests of Australia; or(b)compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen;justify the granting of the visa.(5)In this clause:information that is false or misleading in a material particular means information that is:(a)false or misleading at the time it is given; and(b)relevant to any of the criteria the Minister may consider when making a decision on an application, whether or not the decision is made because of that information.…

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.