Zhang (Migration)

[2021] AATA 4352

Zhang (Migration) [2021] AATA 4352 (8 October 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Zeyi Zhang
Miss Melissa Lu

CASE NUMBER:  1833465

DIBP REFERENCE(S):  BCC2017/2374245 BCC2018/5696385

MEMBER:Susan Trotter

DATE:8 October 2021

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision under review.

Statement made on 8 October 2021 at 3:48pm

CATCHWORDS
MIGRATION – Business Skills (Provisional) (Class EB) visa – Subclass 188 (Business Innovation and Investment (Provisional)) – members of family unit – separation from primary applicant husband and father and claim of family violence – husband withdrew application without wife’s knowledge – child’s developmental delay and education – request for postponement not granted – primary applicant not holder of relevant visa and secondary applicants not members of family unit – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 65, 363(1)(b)

Migration Regulations 1994 (Cth), Schedule 2, cl 188.311

CASES

Huo v MIMA [2002] FCA 617

Kaur v MIBP [2014] FCA 915

Manna v MIAC [2014] FMCA 28

MIAC v Li [2013] HCA 18

MIBP v Singh [2014] FCAFC 1

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 Immigration on 31 October 2018 to refuse to grant the visa applicant a Business Skills (Provisional) Subclass 188 visa under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visa on 4 July 2017 as secondary visa applicants in relation to the visa application of Fei Lu, the primary visa applicant for a Subclass 188 visa.

3. The delegate refused to grant the visas on the basis that cl.188.311 of Schedule 2 to the Migration Regulations 1994 (the Regulations) was not met as required for secondary visa applicants because the delegate was not satisfied that the applicants were each a member of the family unit of a person who holds a Subclass 188 visa granted on the basis of satisfying the primary criteria.

4. The applicants applied to the Tribunal on 14 November 2018 seeking review of the delegate’s decision.

5. On 23 July 2021, the Tribunal received an appointment of (a new) representative and authorised recipient form on behalf of the applicants together with a request to postpone the hearing on 9 August 2021. The request was made on the basis that the representative had only been appointed on 23 July 2021 and that further time was sought for the best interests of the applicant to assist her in understanding her rights and the legal process and to review and prepare the supporting documents and statements.

6. On 27 July 2021, the Tribunal responded to the applicants’ request for a postponement of the 9 August 2021 hearing declining to grant the requested postponement in circumstances where the issue for consideration at the hearing is narrow. The Tribunal indicated, however, that it would consider the adjournment request further if further details were provided, either prior to or at the commencement of the scheduled hearing, as to why the adjournment is sought.

7. The first-named applicant (the applicant) appeared by video before the Tribunal on 9 August 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

8. The applicants were represented by their registered migration agent.

9. At the commencement of the hearing, the Tribunal discussed the adjournment request with the applicants’ representative, including whether the adjournment was still sought and if so why. The applicants’ representative advised that everything had been communicated to the applicant prior to hearing, including that the Tribunal would have to make an unfavourable decision in relation to the application. The applicants’ representative did not pursue an adjournment.

10. The applicants’ representative told the Tribunal that she had made it clear to the applicant that she did not have good prospects of obtaining a favourable decision from the Tribunal, however, the applicant nonetheless wished to have her case presented to the Tribunal so that she had a clear understanding of her case.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. The applicants must satisfy the secondary criteria for the grant of the visa. One of those criteria is cl.188.311 of Schedule 2 to the Regulations which provides as follows;

    The applicant is a member of the family unit of a person who holds a Subclass 188 visa granted on the basis of satisfying the primary criteria for the grant of the visa (the primary applicant).

13. The applicant’s representative told the Tribunal that she had made it clear to the applicant that she did not have good prospects of obtaining a favourable decision from the Tribunal, however, the applicant nonetheless wished to have her case presented to the Tribunal so that she had a clear understanding of her case.

14. The Tribunal took into account the applicant’s statement dated 30 July 2021, which included as follows (unedited):

    My ex-husband Fei Lu (Ralph), … was the primary visa application. We appointed a migration agent in Melbourne to assist us prepare and lodge our visa application, the registered migration agent is …. and our communication was via his assistant ...(Jason). In the process of visa preparation, both of us have been in contact with Jason and we mainly communicated through WeChat.

    Ralph and I know each other in July 2015, started relationship and commenced cohabitation in November 2016. Got married in May 2017, and we have a daughter Melissa LU (born on 20 November 2017) …. After we got married, Ralph tended to be violence towards me when we argue. But I though people always be grumpy when they are angry, maybe he was not mature enough to control himself. As he apologized eventually every time, I forgave him and I thought as a family, it is very normal to have arguments. However, things, didn’t change too much. In November 2017, Ralph force me to have sex with him. At that time, I was almost 9 months pregnant. After that, I had a terrible pain all night, and Ralph did not take me to the hospital until I begged him several times. Eventually, I went into early labour.

    I was in matrimonial relationship with Ralph, I thought it is possible that he did not intentionally to do that, it is normal need of a man. It is forgivable as long as he treats me and the child well int eh future. However, after Melissa was born, Ralph never took care of me and our child. He left home early every day and played cards with friends and came back late. He told me he would ask his aunt to take care of me from China.

    Later, because Ralph was addicted to smoking marijuana, his mother asked him to stay in China for a while and help him with rehabilitation. In February 2018, Ralph just told me that he would like to go back to China and then left. I am still expecting him to come back to Australia afterwards. However, from then until October 2018, when I sent him messages with him, he rarely responded to me. He only occasionally responded to my messages when I mentioned Melissa’s physical condition.

    At the end of October 2018, I moved out of Fei Lu’s house because of I was worried about my safety as I live there alone. Ralph and I haven’t contacted each other at all since then. What he did to me at that time hurt me very much. Until now I will be scared and feel unsecured unsafe when any make talk to me. And sometimes I dare not even speak to them. Every time I think of that night, especially the night I was sleeping on the sofa with pain before my child was born, I still shivered and couldn’t help crying.

    On 11 November 2018, I occasionally checked my VEVO online … and I suddenly noticed that by bridge visa had an expire date. I felt strange because my bridging visa always shown indefinite after we lodge the visa application, so I tried to contact the agency and they told me that they had withdrawn the visa application according to Ralph’s request, and my visa had been refused. I was shocked, as I never receive any notification or message from Ralph’s request, and my visa had been refused. I was shocked, as I never receive any notification or message from Ralph, agent, or the Department of Home Affairs. I did not understand that why the agent did not confirm our relationship status or update our relationship status to the department, if they receive Ralph’s signed documents without my signature, they should confirm why I did not sign or withdraw my application. I am also one of the clients, and they represented my case. My visa refusal was because my agent did not give me any notification, I was deprived the right to know, which was very unfair to me.

    For my understanding, I should be notified separately about my visa process status, either by the immigration office, or agent. It there is a conflict of interest, the agent should advise me to appoint another migration agent to further assist me with my application. However, I did not receive any notification via phone call, email or message from agent or the department nearly half a month after my visa was finalised. I was not updated with any information about my visa status. I would have missed the refusal letter but that I checked my VEVO and went to the office asked for it.

    Later I learned from other registered migration agent that even my agent did not know our relationship status, they should clearly understand that withdrawal of a visa application by one applicant (such as the main applicant) does not constitute withdrawal of the visa applications of other applicants. Withdrawal form must be signed by each applicant. If only main application signed the withdrawal form, secondary applicant’s applicant will be continue processed and eventually be refused. Then, after receiving the form signed by Fei LU, why didn’t the agent confirm the reason I didn’t sign, or contact me? Why didn’t’ they give me the corresponding advice? Therefore, I believe that the negligence of the agent caused my visa refusal. If I knew about the form and Ralph’s withdrawal application, I could choose to withdraw my visa application or make other arrangement rather than get notification nearly half month after my visa has been finalised. I cannot this result and the irresponsible and unprofessional behaviour of the agent.

    I must emphasize that before I received the refusal letter, I did not know about the Form 1446. No one has ever sent me, by post, by email, or orally notified me that there is such a document. I didn’t know my ex-husband withdraw the application. I did not have any knowledge and ability to understand how our 188A application would proceed after my ex-husband left the country without agent assistance. In my opinion, we have lodgement acknowledgment letter and a bridging visa, if there is further notification sent to me, the application should be under normal processing.

    My daughter Melissa LU is enrolled in Keysborough community children’s centre, the teacher suggested me to take Melissa for Paediatric Development Assessment as she concerns there may be a developmental delay particularly in the areas of language/communication and social relationships …. The teacher suggested Melissa should continue her enrolment her in Australia as changing environment could negatively impact on her development. Melissa never speaks Mandarin, though my first language is Mandarin, I speaks English with Melissa at home. If Melissa go back to China, she need to start study Chinse from very beginning, for a child with development delay in language and communication, it take more time to learn and get used to another language. In this way, she will not be able to catch up with children of the same age, thus detrimental to her physical and mental development. The childcare centre teacher has experience working in the Chinese preschool education system. She believes that the Chinese preschool education system cannot meet Melissa’s special education needs.

    I have no property in China. My family (mother) lives in Japan. If I return to China, I cannot get any help. And I have been initiated legal proceedings against Ralph about Melissa’s custody. If Melissa and I leave Australia, this lawsuit may not be able to proceed for various reasons. Fei LU and his mother are well-connected and have a wide network and resources in China. In China’s judicial system, it is difficult to file a domestic violence case. In most cases, it is mediation with the family. As a victim of domestic violence, I cannot get the help I deserved in China, and because I have no assets in China, stable job and income, my custody of Melissa may be taken away.

    I was in a state of being notified of the whole thing and could only passively accept everything. I didn’t even receive any notice about the divorce, I knew about this nearly a year after the divorce order effect from the lawyer who represented my daughter’s support case … In the field of immigration practice, I did not have any knowledge. That’s why I appointed a professional migration agent to assist my visa application. However, I did not receive professional services.

    During the consultation with other agent, I learned that all registered migration agents in Australia need to abide by the code of conduct. According to the code, the registered migration agent should update their clients with the progress of each application, the results, and should notify the client in writing in time after receiving the decision. Both Fei LU and I are clients of the agent. When Fei LU withdrawn the visa application, I should have received a notice. However, the agent did not give me any notice about anything until I found out the result by myself. It was the negligence of the agent and caused my visa refusal. This is the main reason for my appeal.

    I hope you could consider my situation comprehensively, visa refusal losing my daughter’s custody, and my daughter’s physical and mental health could be negatively impacted, and her education needs cannot be meet under China’s education system.

15. The Tribunal discussed with the applicant at hearing its understanding and acknowledgment that there are a number of important and difficult background circumstances in relation to her application, including in relation to her daughter, the second-named applicant before the Tribunal. The Tribunal also discussed with the applicant that it is confined to reviewing the decision of the delegate and is bound to apply the law. The Tribunal noted that the applicant had provided a copy of the delegate’s decision when making her application to the Tribunal and that the delegate’s decision was refused on the basis that the applicants did not meet one of the necessary requirements that must be met for the visa to be granted. The Tribunal further noted that the requirement that needs to be met is that the applicants are each the member of the family unit of a person who holds a Subclass 188 visa that was granted to them as the primary visa applicant, and the delegate’s decision record shows that the primary visa applicant withdrew his application. The Tribunal noted from the applicant’s statement of 30 July 2021 that she was not aware of the primary visa applicant withdrawing his visa applicant but indicated that there was no discretion contained within the migration law that allowed the Tribunal to take into account discretionary matters relating to the applicants’ background circumstances and that the only matter the Tribunal could have to regard to is whether the applicants are each a member of the family unit of a person who holds a Subclass 188 visa having satisfied the primary visa criteria. The Tribunal noted that based upon the evidence the applicant had provided to the Tribunal, it seemed that the Tribunal would not be able to be satisfied that that requirement is met, for two reasons. Firstly, the primary visa applicant who applied for the Subclass 188 visa, with the applicant named as a secondary applicant in relation to the application, has withdrawn his application such that he is not the holder of a Subclass 188 visa. Secondly, even if the primary visa applicant were the holder a of Subclass 188 visa, which the evidence is that he is not, the applicant’s evidence is that she is no longer in a relationship with the primary visa applicant and is therefore no longer a member of his family unit. The Tribunal indicated that this would mean that the Tribunal would have no choice but to affirm the decision of the delegate.

16. The applicant indicated her understanding of the matters the Tribunal had discussed and agreed that all matters noted by the Tribunal were true but that the withdrawal of the visa application happened without her knowledge such that she hoped the Tribunal could take that into account. The Tribunal again repeated that even though the primary visa applicant withdrew his visa application without the applicant’s knowledge, that was not a matter the Tribunal could take into account in considering whether the applicants meet the required criterion in issue. The applicants’ representative confirmed that she had discussed all of the matters canvassed with the applicant.

17. The applicant stated that the delegate’s decision was made in 2018 and at that time she was not divorced from the primary visa applicant. The Tribunal advised that the law requires consideration of whether she is a member of the family unit now at the time of decision and, in any event, the evidence is still that the primary visa applicant is not the holder of a Subclass 188 visa. The Tribunal indicated that based upon the evidence before it, that a favourable decision could not be made.

18. The Tribunal asked the applicants’ representative if there were any further matters in relation to which she sought to address the Tribunal. The applicants’ representative did not seek to address any further matters. The Tribunal indicated that given the narrow issue before the Tribunal, it had declined to adjourn prior to the scheduled hearing as requested. The Tribunal further indicated that if an adjournment request was maintained the Tribunal would continue to refuse to adjourn as all of the evidence in relation to the narrow issue before the Tribunal was already before the Tribunal.

19. In considering whether it would be appropriate to adjourn the application for review prior to the hearing as requested or at the hearing (although an adjournment was not further pursued by the applicants at hearing), the Tribunal took into account the decisions in Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617 and Manna v Minister for Immigration and Citizenship [2014] FMCA 28, where the Courts have held that the Tribunal is not required to indefinitely defer its decision-making processes. It has also had regard to the decision in Minister for Immigration and Citizenship v Li [2013] HCA 18 regarding the reasonableness of any request for an adjournment, and the Full Federal Court decision in Minister for Immigration and Border Protection v Singh [2014] FCAFC 1 which considered this issue, as well as the decision in Kaur v Minister for Immigration and Border Protection [2014] FCA 915 where analogous issues were discussed.

20. The Tribunal has taken into account all of the matters raised by applicant however, in the circumstances, the Tribunal does not consider there is any merit in adjourning this matter in circumstances where in relation to the central issue arising in the application for review, the evidence is that the relevant criterion is not, and cannot, be met. Accordingly, the Tribunal decided not to exercise its discretion under s.363(1)(b) of the Act to adjourn the review.

21. The Tribunal also noted that a potential witness was arranged to give evidence to the Tribunal and that in the hearing response provided to the Tribunal by the applicants, it is indicated that the evidence it is proposed the witness would give is in relation to the education needs of the applicant’s daughter. However, the Tribunal stated that given that evidence was not relevant to the sole issue before it, it would not be necessary to hear from the witness.

1. The Tribunal took a break towards the end of the hearing to enable the applicant to confer with her representative. Upon resumption of the hearing, the applicant sought to discuss her rights in relation to whether the Department of Home Affairs denied natural justice to her or whether previous migration agent had. The applicants’ representative stated that the applicant wanted to know whether it is normal procedure for the Department of Home Affairs to not send out a notification officially to the applicant before it refused her visa application. The Tribunal indicated to the applicant that it is a matter for her to seek whatever advice she may wish to seek but that it is not the role of the Tribunal, nor does the Tribunal have power, to either conduct an enquiry in relation to the conduct of the Department or to provide advice either in relation to the Department’s conduct or the applicants’ former migration agent’s actions. The Tribunal again repeated that the only relevant issue before the Tribunal in relation to the application is whether the applicants meet the requirement to each be a member of the family unit of a person who holds as a Subclass 188 visa as primary visa applicant.

2. The evidence before the Tribunal is that the primary visa applicant, at the time of this decision, is not the holder of a Subclass 188 visa. It follows that on the evidence before it, the Tribunal finds that the applicants are not each members of the family unit of a person who holds a Subclass 188 visa. Therefore, the applicants do not satisfy the requirement in cl.188.311 for the grant of visas as secondary applicants.

3. There is also no evidence before the Tribunal, and the applicants have not claimed, that they satisfy the primary criteria for the grant of the Subclass 188 visa.

4. For the reasons above, the applicants do not satisfy the criteria for the grant of the visa.

   DECISION

5. The Tribunal affirms the decision under review.

   Susan Trotter
   Member