Zhang (Migration)

[2022] AATA 2932

Zhang (Migration) [2022] AATA 2932 (18 August 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Li Zhang

REPRESENTATIVE:  Mr Edward Rimmington (MARN: 1688177)

CASE NUMBER:  2102764

HOME AFFAIRS REFERENCE(S):          BCC2020/2718084

MEMBER:Jennifer Cripps Watts

DATE:18 August 2022

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Visitor (Class FA) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 600 (Visitor) (Class FA) visa:

·Public Interest Criterion 3004 for the purposes of cl.600.223(2) of Schedule 2 to the Regulations.

Statement made on 18 August 2022 at 2:31pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – application made after last substantive visa ceased – factor beyond applicant’s control – department’s delay in processing application for waiver of condition of last visitor visa – reasonable attempts made to make application in time – compelling reasons for grant of visa – support to family members in difficult personal circumstances – application for parent visa in progress – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 600.223(2)(b), Schedule 3, criterion 3004(c), (d), Schedule 8, condition 8503

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 15 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 25 November 2020. 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, which requires the visa applicant to hold a substantive visa at the time of application or, if not, to meet specified Schedule 3 criteria.

4. The delegate refused to grant the visa on the basis that the visa applicant did not hold a substantive visa at the time of application and Schedule 3 3004 criteria was not satisfied.

5. The applicant appeared before the Tribunal on 26 May 2022 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s daughter-in-law. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

6. The applicant’s representative attended the Tribunal hearing.

7. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in this case is whether cl 600.223 of Schedule 2 to the Regulations is met:

   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.  

9. The applicant last held a substantive subclass FA600 visa that ceased on 19 November 2020.  The visa application that is the subject of this review was made on 25 November 2020.  When the visa application was made, the applicant provided the reason for their stay as relating to COVID-19.  The last substantive visa the applicant held was not a subclass 403 visa. 

10. The visa application was made while the applicant did not hold a substantive visa and she is therefore required to meet Schedule 3 criteria: cl.600.223(2)(b).  Clause 600.223(2)(a) is not applicable in this case.

11. When her visa application was being assessed, the applicant was invited by the Department to provide reasons why she did not hold a substantive visa when the application was made.  The applicant claimed, essentially, that it was due to factors beyond her control relating to a request for waiver of condition 8503, and that there were compelling reasons why her visa should be granted relating to personal family circumstances.  The reasons given to the Department were not accepted, and the visa was refused.  The applicant applied to the Tribunal for review of the decision.

12. The applicant was invited to attend a scheduled hearing at the Tribunal to give oral evidence, and to submit any additional documentary evidence in support of her application.  The applicant provided additional documentary evidence.  In addition, the applicant and her daughter-in-law attended the Tribunal hearing and gave oral evidence in support of the application.

13. The applicant has a son and daughter-in-law with a young family who live in Australia, and she is currently waiting for a parent visa application to be processed.  The applicant applied for waiver of condition 8503 relating to her last substantive visa.  The applicant gave evidence that while she still held her last substantive subclass 600 visa, with the assistance of her son and daughter-in-law, they called the Department on 26 October 2021, 12 November 2021 and 19 November 2021 and that (at some point) the person they spoke to at the Department informed them the applicant should apply for a bridging visa.  Condition 8503 of Schedule 8 to the Regulations, a bridging visa condition in this case, imposes the following restriction:

    8503

    The holder will not, after entering Australia, be entitled to be granted a substantive visa, other than a protection visa, while the holder remains in Australia.

14. On 19 November 2021, the applicant’s last substantive (visitor) visa ceased.  On 23 November 2021, the applicant was granted the waiver of condition 8503 that she had applied for, by which time she held a bridging visa.  While the applicant held that bridging visa, on 25 November 2021 an application was made for the subclass 600 visa that is the subject of this review; the application was made six days after her last substantive visa ceased.  

15. The Tribunal has considered the following matters relating to whether the applicant meets cl.600.223(b):

    ·the applicant is not the holder of a substantive visa because of factors beyond her control:  3004(c)

    ·there are compelling reasons for granting the visa:  3004(d)

    ·the applicant has complied substantially with the conditions applicable to the last of any substantive visas and any subsequent bridging visa held by the applicant:  3004(e)

    ·the applicant would have been able to be granted the visa if the applicant had applied on the day she last held a substantive or criminal justice visa:  3004(f)

    ·the applicant intends to comply with any conditions of the visa – criterion 3004(g); and

    ·the last visa or entry permit held (if any) 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 – criterion 3004(h).

    Criterion 3004(c)

16. The applicant was seeking, essentially, to extend her time in Australia during the COVID-19 pandemic for a few months to help her son and daughter-in-law look after their young children. 

17. Before the applicant could be granted another visitor visa, she had to first apply for waiver of condition 8503, have the condition waived, and then make the visitor visa application.  This needed to be done no later than 19 November 2021.  However, the waiver was not granted and notified until 23 November 2021.  The Tribunal is satisfied that reasonable attempts were made by the applicant to prepare to make the visa application before her last substantive visa ceased, but that there were delays in processing her condition 8503 waiver request.  The delay, between 26 October 2021, when the waiver request was made, and 23 November 2021, when the waiver was granted, meant that the applicant’s substantive visa had already ceased, four days earlier.  Without the condition 8503 waiver, the applicant was not entitled to be granted another visitor visa. 

18. The Tribunal is not persuaded that the applicant received ‘unsatisfactory advice’ from the Department, as it has been submitted.  However, the Tribunal is satisfied that the applicant applied for the condition 8503 waiver on 26 October 2021 planning, if the waiver was granted, to lodge the visa application before her last substantive visa ceased on 19 November 2021.  It was not unreasonable for the applicant to think that the request would be processed within the three or so weeks before her substantive visa ceased and is satisfied that the applicant applied for the waiver in a timely fashion.  The waiver was granted, but not until 23 November 2021.  As the waiver was granted, it is difficult to see how anything other than a delay in processing the request was the reason the granting of the waiver came four days too late for the applicant to make the visa application that is the subject of this review while she still held a substantive visa. 

19. The Tribunal is satisfied that there were factors beyond the applicant’s control and that she meets the requirements of 3004(c).

    Criterion 3004(d)

20. The applicant claims there are compelling circumstances relating to her family that the visa should be granted.  The applicant has a son who is an Australian permanent resident and grandchildren who are Australian citizens.  Her son’s wife had just had their second child and was suffering from post-natal depression.  The applicant was providing support to her son and his family in difficult circumstances.  Evidence was given that her son’s marriage may have broken down and that he has moved out of the family home, creating a greater than usual need for the applicant’s assistance with her son’s young children.

21. On the basis of the applicant’s family circumstances, where the applicant is providing emotional support and care to her son, his wife and the applicant’s young grandchildren, the Tribunal is satisfied there are compelling circumstances for granting the visa and that the applicant meets 3004(d).

    Criterion 3004(e)

22. There is no information before the Tribunal to indicate that the applicant has not complied with the conditions applicable to any substantive or bridging visas she has held or holds.

23. The Tribunal is satisfied the applicant meets 3004(e).

    Criterion 3004(f)

24. The circumstances of this applicant, on the basis of the information provided and available to the Tribunal, are that if the applicant had been notified, before 19 November 2021, that the 8503 waiver had been granted, she would have been able to be granted the visa if she had applied for it before 20 November 2021.

25. The Tribunal is satisfied the applicant meets 3004(f).

    Criterion 3004(g)

26. The applicant has made trips in and out of Australia on several occasions.  There is no information before the Tribunal that the applicant has been non-compliant with any visa conditions in the past and there is no reason to think that she does not intend to comply with any visa conditions imposed on her relating to the grant of a visitor visa.

27. The Tribunal is satisfied the applicant meets 3004(g)

    Criterion 3004(h)

28. There was a ‘no further stay’, condition 8503, that attached to the applicant’s last substantive visa.  On 26 October 2021 the applicant applied for waiver of the condition and, on 23 November 2021, the waiver was granted.  The Tribunal has already made a finding that the delay in the applicant receiving notification of the grant of the waiver, four days after her previous visitor visa ceased, was beyond her control. 

29. The Tribunal is satisfied that the applicant effectively, given the delay in processing the waiver request and subsequent granting of it, that the applicant meets 3004(h).

    Conclusion

    For the above reasons, the Tribunal is satisfied that the applicant meets the requirements of Schedule 3 criterion 3004.

    Accordingly, the Tribunal is satisfied that the applicant meets the requirements of cl.600.223.

    DECISION

30. The Tribunal remits the application for a Visitor (Class FA) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 600 (Visitor) (Class FA) visa: Public Interest Criterion 3004 for the purposes of cl.600.223(2) of Schedule 2 to the Regulations.

    Jennifer Cripps Watts
    Senior Member

    
    

    ATTACHMENT A

    SCHEDULE 3 - ADDITIONAL CRITERIA APPLICABLE TO UNLAWFUL NON-CITIZENS AND CERTAIN BRIDGING VISA HOLDERS

    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.