Zhang (Migration)

[2022] AATA 1636

Zhang (Migration) [2022] AATA 1636 (12 May 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Qiulin ZHANG

CASE NUMBER:  2104407

HOME AFFAIRS REFERENCE(S):          BCC2021/30576

MEMBER:Nathan Goetz

DATE:12 May 2022

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to refuse to grant the applicant a Visitor (Class FA) Subclass 600 visa

Statement made on 12 May 2022 at 1:38pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – no substantive visa at the time of application – factors beyond the applicant’s control – compelling reasons – family illness – impact of the COVID-19 pandemic – decision under review affirmed  

LEGISLATION

Migration Act 1958, ss 5, 65, 359, 360
Migration Regulations 1994, Schedule 2, cl 600.223; Schedule 3 Criterion 3004

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 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).

   BACKGROUND

2. The applicant identifies as 71-year-old female citizen of China presently located in Australia.

3. The applicant last arrived in Australia on 16 May 2019 on a visitor visa that was granted on 25 June 2014. This visa ceased on 16 May 2020.  The applicant was granted another visitor visa on 22 July 2020 which ceased on 16 November 2020.

4. On 19 November 2021 the applicant applied for the visitor visa that is the subject of the review application. On 23 March 2021 the delegate refused to grant the visitor visa on the basis that the applicant did not satisfy Public Interest Criterion (‘PIC’) 3004(c) of Schedule 3 of the Migration Regulations 1994 (Cth) (‘the Regulations’). As a result of failing to satisfy PIC 3004(c), the applicant failed to satisfy PIC 3004 in its entirety. As a result of failing to satisfy PIC 3004, the applicant failed to satisfy cl 600.223 of Schedule 2 of the Regulations.

5. On 8 April 2021 the applicant applied to the Tribunal to review the refusal decision.

6. On 19 April 2022 the Tribunal wrote to the applicant for two reasons.

7. The first reason was to invite the applicant under s 360(1) of the Act to appear at a Tribunal hearing scheduled for 11:00am on 10 May 2022 so she could give evidence and present arguments relating to the issues arising in relation to the decision under review. The Tribunal was required to invite the applicant to appear at a Tribunal hearing because the Tribunal was unable to make a decision favourable to the applicant on the basis of the material it had.

8. The second reason was to invite the applicant under s 359(2) of the Act to provide the Tribunal with information. The information requested and the applicant’s response is detailed later in this decision record.

9. On 10 May 2022 the applicant appeared at the Tribunal by telephone. The Tribunal determined that a telephone hearing was appropriate in the circumstances. The Tribunal hearing was conducted with the assistance of an interpreter in the English and Mandarin languages.

10. The applicant requested that the Tribunal take oral evidence from her husband Mr Yong XIE, who was identified as being the holder of a visa that granted him permanent residency in Australia.

11. In the ‘Response to hearing invitation’ form, the evidence Mr XIE proposed to give was ‘oral support for (the applicant’s) AX-109 visa application, the best reason for her to stay in Australia with all her direct family members.’ The Tribunal did not accede to the request to take oral evidence from Mr XIE because his proposed evidence was irrelevant to whether the applicant satisfied PIC 3004(c).

12. The applicant also requested that the Tribunal take oral evidence from her daughter Ms Xin Xin XIE. As the evidence demonstrated that Ms XIE was the person responsible for lodging the applicant’s visitor visas, the Tribunal acceded to this request.

    CRITERIA FOR THE VISITOR VISA

    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.

    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.

    CONSIDERATION

13. The Department received the applicant’s paper-based visitor visa application on 19 November 2020.

14. In the application form, the applicant indicated that she wished to extend her stay in Australia until 15 November 2021. She declared that she did not presently hold an Australian visa and that she had no legal status in Australia. She detailed that her visitor visa expired on 16 November 2020. She wished to visit her family as her husband, daughter and son-in-law all live in Australia, and that she will help her daughter and son-in-law to take care of their children so they can work. She indicated she had overstayed her previous visa.

15. When asked to detail the circumstances concerning her overstaying her visa, the applicant wrote that she was one day late applying for a new visitor visa. She wrote that the main reason for missing the deadline was because the applicant’s granddaughter in Australia was sick from 4 November 2020, and this triggered asthma. The applicant’s daughter was busy caring for the child. The child was also requested to have a test for COVID-19 on 6 November 2020. The child also broke her left hand on 7 November 2020.

16. The applicant’s daughter was the person responsible for lodging the visitor visa application and was busy caring for her daughter and working full time. The grandchild was taken to the Children’s Hospital Emergency Department on 9 November 2020 for a plaster cast.

17. Attached to the visitor visa application were several documents, including text messages concerning the hospital visit, COVID-19 test. None of the other attached documents are relevant to the issue being considered by the Tribunal and are unnecessary to repeat.

18. On 4 March 2021, the delegate wrote to the applicant and requested more information. The information requested was information to demonstrate that there were factors beyond the applicant’s control which prevented her from lodging a visa while holding a substantive visa and information to demonstrate that there were compelling reasons for the grant of the visa.

19. The applicant responded to this request via a letter from her daughter. Regarding the factors beyond the applicant’s control which led to the applicant applying for the visitor visa after her existing visitor visa ceased, the applicant’s daughter wrote that she started to apply for the visitor visa online on 27 October 2020 and she planned to lodge all the documents as soon as she could. She was working on the visitor visa application online and uploaded the last file at 0:10am on 17 November 2020. She was told that she could not complete the application online as it is overdue.

20. In the letter the applicant’s daughter essentially repeated what was contained in the visitor visa application form, namely that her daughter had been sick and injured. The letter details the applicant’s daughter balancing her full-time work as an accountant against taking care of her child and having to leave work on occasions to take her child for medical assistance. She noted that she returns home late at night from work and requires her mother’s help taking care of two young children, as both she and her husband work.

21. She detailed various times she logged into the ImmiAccount prior to 17 November 2020 to continue with the application and attached screenshots to demonstrate that she had done so. She claimed that her child’s sickness prevented her from lodging the visitor visa application within time, as did the fact that she was required to print documents and upload them.

22. The applicant’s daughter summarised that her daughter’s illnesses badly delayed making the visitor visa application before the applicant’s existing visitor visa expired.

23. The applicant attached several documents to corroborate what she had written. They are unnecessary to repeat in detail.

24. The applicant’s daughter then went on to detail the compelling reasons to grant the visitor visa. It is unnecessary to detail the response because the delegate did not refuse to grant the visitor visa on the basis that the applicant did not satisfy PIC 3004(d), and that is not an issue being considered by the Tribunal.

25. As noted previously, the Tribunal wrote to the applicant to request information. The information requested was whether the applicant applied for the visitor visa granted on 22 July 2020 in electronic or hardcopy form. The applicant responded through her daughter and advised that the application was lodged electronically.

26. The applicant provided the Tribunal with several documents prior to the Tribunal hearing, including a written statement which identified the factors that were beyond the applicant’s control which led to her not being the holder of a substantive visa. In that written statement, the applicant’s daughter raised for the first time that the COVID-19 pandemic and the risk to the applicant’s health from the pandemic was a ‘factor beyond her control.’ At the Tribunal hearing, the Tribunal queried why this written statement only cited the pandemic as a factor beyond the applicant’s control, and did not repeat the reasons previously claimed. The applicant’s daughter told the Tribunal this was because that reason was previously raised and she assumed the Tribunal would be aware of those reasons. The pandemic was a ‘new reason.’ The Tribunal accepts that explanation.

27. At the Tribunal hearing, the applicant confirmed that her daughter was responsible for lodging the visa applications on her behalf. The Tribunal therefore took oral evidence from the applicant’s daughter. It was consistent with the evidence the applicant’s daughter provided in the response to the delegate’s letter, and in the written evidence submitted to the Tribunal prior to the Tribunal hearing.

28. Subsequent to the Tribunal hearing, the applicant re-submitted the various documents concerning the medical conditions of her granddaughter, as well as a copy of the online visitor visa application that was unable to be lodged before the expiration of the existing visitor visa on 16 November 2022.

    FINDINGS AND REASONS

29. The Tribunal has considered all the evidence it has. The issue in the present case is whether the applicant is not the holder of a substantive visa because of factors beyond the applicant’s control as required by PIC 3004(c). If the applicant does not satisfy PIC 3004(c), she fails to satisfy PIC 3004 in its entirety. If she fails to satisfy PIC 3004 in its entirety, she fails to satisfy cl 600.223.

30. The evidence is that the applicant last held a substantive visa that expired on 16 November 2020. This is because a ‘substantive visa’ includes a visitor visa, as s 5 of the Act defines a substantive visa to be a visa other than a ‘bridging visa, criminal justice visa, or enforcement visa.’ The evidence is that the applicant made a valid visitor visa application on 19 November 2020, when the Department received the valid visa application.

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

    The COVID-19 pandemic, risk to the applicant’s health, and family in Australia

32. The pandemic and the risk to the health of the applicant are obviously not matters that the applicant has any control over. However, the issue is not whether the applicant cannot return to China because of factors beyond her control, or reasons why she cannot or should not return to China at this stage. The issue is whether she applicant did not hold a substantive visa at the time she lodged the visitor visa application due to factors beyond her control.

33. The Tribunal does not accept that the COVID-19 pandemic and the associated risk to the applicant’s health is a factor beyond the applicant’s control which caused her to not hold a substantive visa at the time she lodged the visitor visa on 19 February 2021.

34. There is no evidence that the applicant suffered COVID-19 on 16 November 2020 and that illness made her incapable of lodging the visitor visa application during the currency of her existing visitor visa.

35. The fact that the visa application refusal may require the applicant to return to China and be separated from her family in Australia (including her husband who is in Australia as the holder of a visa which grants him permanent residence, is irrelevant to PIC 3004(c). The fact that the applicant may, as a result of a visitor visa refusal, be barred from applying for certain substantive visas while onshore is also irrelevant to PIC 3004(c).

    The medical issues and care of the applicant’s granddaughter, and busy life of the applicant’s daughter

36. The Tribunal acknowledges that the applicant’s granddaughter has had medical problems as outlined in the documentation provided. The Tribunal readily accepts that when a child is sick, the personal and professional lives of the child’s parents can be interrupted, requiring time off work, and prioritising the care of a child above most, if not all, things. The Tribunal has sympathy for the applicant and her family.

37. However, the applicant’s daughter’s evidence is that she was in the processing of lodging the visitor visa application on the night of 16 November 2020. She was continuing to work on the visa application when midnight occurred, rendering it impossible to lodge the visitor visa application form online because the existing visitor visa ceased. The Tribunal accepts the applicant’s daughter’s evidence as a truthful account of what she did.

38. The applicant’s daughter’s evidence is that she was working on the visitor visa application from 27 October 2020. She has provided evidence that she accessed the online ImmiAccount on numerous occasions to work on the visitor visa application. The Tribunal accepts the applicant’s daughter’s evidence as a truthful account of what she did.

39. However, the Tribunal does not accept that there were factors beyond the applicant’s control which led her to lodge a visitor visa application after the expiration of her existing visitor visa. The applicant was not incapacitated or hospitalised rendering her incapable of giving instructions to lodge the visitor visa application. The applicant’s daughter was able to work full time and provide care to her child. She was able to work on the visitor visa application online during various times between 27 October 2020 when she started working on the visitor visa application and was working on the visitor visa application on the night of 16 November 2020.

40. The Tribunal attributes the failure by the applicant, or more accurately described, by the applicant’s daughter on behalf of the applicant, to be due to poor time management concerning her various responsibilities as a parent, worker, and person responsible for lodging her mother’s visitor visa application. This is evident by the fact that the applicant’s daughter was working on the visitor visa application until midnight on 16 November 2020.

41. In the Tribunal’s assessment, the applicant simply ran out of time to lodge the visitor visa during the currency of the existing visitor visa grant. That is not a ‘factor beyond the applicant’s control’ because it was the responsibility of the applicant to ensure that her visitor visa application was made while she held an existing visitor visa.

42. At its core, the issue is that the applicant did not hold a substantive visa at the time the applicant applied for the visitor visa because the applicant’s daughter was continuing to work on the application until passed midnight on 16 November 2020. The Tribunal does not accept that this is a factor beyond the applicant’s control.

43. Where the applicant has elected to have a person lodge the visa application on her behalf (in essence, as an agent), then it is the responsibility of that person to ensure that the applicant lodges a visa in accordance with the relevant laws and regulations. Here, the applicant’s daughter has not done so because she ran out of time to lodge the application. The time taken by the applicant’s daughter to adequately prepare the visitor visa application is a factor entirely within her control.

44. The Tribunal is not satisfied that the applicant meets PIC 3004(c). As a result of failing to meet PIC 3004(c), the applicant fails to meet PIC 3004 in its entirety. As a result of failing to meet PIC 3004 in its entirety, the applicant fails to meet cl 600.223.

    DECISION

45. The Tribunal affirms the decision to refuse to grant the applicant a Visitor (Class FA) Subclass 600 visa.

    Nathan Goetz
    Member