ZHAO (Migration)

[2022] AATA 1399

ZHAO (Migration) [2022] AATA 1399 (13 May 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Ping ZHAO

REPRESENTATIVE:  Mr Rui ZOU

CASE NUMBER:  2109446

HOME AFFAIRS REFERENCE(S):          BCC2021/452293

MEMBER:Nathan Goetz

DATE:13 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 13 May 2022 at 1:12pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – application made more than 28 days after last substantive visa held – condition on previous visa prohibiting grant of substantive visa while applicant remains in Australia – same condition waived for husband but notice of applicant’s waiver sent to wrong email address – no discretion to waive criterion or consider circumstances – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359A, 360(1), (2)(c), (3)
Migration Regulations 1994 (Cth), Schedule 2, cl 600.223, Schedule 3, criterion 3001, 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 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 applicant was represented in the review application by registered migration agent 1388065.

   BACKGROUND

3. The applicant identifies as a 61-year-old female citizen of China presently located in Australia.

4. The applicant last arrived in Australia on 31 December 2019 on a visitor visa that was granted on 9 February 2018. This visa ceased on 31 December 2020.

5. On 23 March 2021 the applicant applied for the visitor visa that is the subject of the review application. On 9 July 2021 the delegate refused to grant the visitor visa on the basis that the applicant did not satisfy Public Interest Criterion (PIC) 3001 of Schedule 3 of the Migration Regulations 1994 (Cth) (the Regulations). As a result of the applicant failing to satisfy PIC 3001, she failed to satisfy cl 600.223 of the Regulations.

6. On 26 July 2021 the applicant applied to the Tribunal for review of the refusal decision.

7. On 20 April 2022 the Tribunal wrote to the applicant under s 360(1) of the Act to invite her to appear at a Tribunal hearing scheduled for 2:00pm on 12 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. On 20 April 2022 the Tribunal wrote to the applicant under s 359A of the Act and asked her to comment on or respond to information that would be a reason or part of the reason for affirming the decision under review. The information and the applicant’s response are detailed later in this decision record. As the applicant commented/responded to the information, it meant that the Tribunal was required to continue to hold a Tribunal hearing as the exception to hold a Tribunal hearing contained in ss 360(2)(c), 360(3) was not enlivened. As will become clear in this decision record, this is regrettable given the futility of the merits of the review application.

9. On 12 May 2022 the applicant appeared at the Tribunal hearing by telephone. The Tribunal was satisfied that a telephone hearing was appropriate in the circumstances. The applicant’s daughter Ms Bo ZHO also attended the Tribunal hearing by telephone. The Tribunal hearing was conducted with the assistance of an interpreter in the English and Mandarin languages.

   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.

   3001

   (1)  The application is validly made within 28 days after the relevant day (within the meaning of subclause (2)).

   (2)  For the purposes of subclause (1) and of clause 3002, the relevant day, in relation to an applicant, is:

   (a)  if the applicant held an entry permit that was valid up to and including 31 August 1994 but has not subsequently been the holder of a substantive visa--1 September 1994; or

   (b) if the applicant became an illegal entrant before 1 September 1994 (whether or not clause 6002 in Schedule 6 of the Migration (1993) Regulations applied or section 195 of the Act applies) and has not, at any time on or after 1 September 1994, been the holder of a substantive visa--the day when the applicant last became an illegal entrant; or

   (c)  if the applicant:

   (i)  ceased to hold a substantive or criminal justice visa on or after 1 September 1994; or

   (ii)  entered Australia unlawfully on or after 1 September 1994;

   whichever is the later of:

   (iii)  the last day when the applicant held a substantive or criminal justice visa; or

   (iv)  the day when the applicant last entered Australia unlawfully; or

   (d)  if the last substantive visa held by the applicant was cancelled, and the Tribunal has made a decision to set aside and substitute the cancellation decision or the Minister's decision not to revoke the cancellation--the later of:

   (i)  the day when that last substantive visa ceased to be in effect; and

   (ii)  the day when the applicant is taken, under sections 368C, 368D and 379C of the Act, to have been notified of the Tribunal's decision.

   CONSIDERATION

10. In the paper-based visitor visa application form signed by the applicant on 15 March 2021, the applicant wrote that she did not currently hold an Australian visa. She provided the visa grant number of her last visitor visa. She identified that she was a visitor in Australia. She was asked the purpose of her stay in Australia and wrote it was to ‘stay with families during COVID-19 period and get back home when it is safe. My visa expired on 31 December 2020.’

11. The applicant also wrote that she had applied for a waiver of Condition 8503 that attached to her previous visitor visa. Condition 8503 is a condition which can be imposed on visas to prohibit an applicant being granted a substantive visa while the applicant remains in Australia. The Tribunal understands that such a condition was imposed on the applicant’s now expired visitor visa.

12. The applicant wrote that she applied for Condition 8503 to be waived in the four weeks prior to the visitor visa expiring. She wrote that she did not receive notification that Condition 8503 had been waived because the notification letter was sent to the wrong email address. She noted that her husband Fuyu ZOU received a letter waiving Condition 8503 and that he had been granted a visitor visa on 3 March 2021. She claimed that if there was ‘no drama’ concerning the email address then she would have applied for the visitor visa in the same way her husband did. She asked for these circumstances to be considered. The applicant attached a letter from her daughter which repeated these circumstances.

13. On 10 May 2021 the delegate wrote to the applicant and invited her to comment on the fact that her last substantive visa ceased on 31 December 2020 and that there was no provision for her to be granted the visitor visa when she applied for that visa more than 28 days after that last substantive visa ceased.

14. On 14 May 2021 the applicant responded to this information by letter from her daughter. Included were various documents, most of which were irrelevant to addressing PIC 3001 and are unnecessary to detail. A letter submitted by the applicant’s daughter reiterated the circumstances which lead to the applicant applying for the visitor visa more than 28 days after the last visitor visa ceasing and went on to detail what the applicant’s daughter described as ‘compelling and compassionate reasons’ for the grant of the visa. Given the issue being considered by the Tribunal, it is unnecessary to detail those reasons.

15. On 20 April 2022 the Tribunal wrote to the applicant under s 359A of the Act and raised information that would be a reason or part of the reason for affirming the decision under review. In essence, it was a repeat of the information previously raised with the applicant by the delegate. There was simply no ability for the applicant to be granted the visitor visa because she could not meet PIC 3001 given the timing of the visitor visa application. The Tribunal notes that when the applicant applied to the Tribunal for review of the refusal decision, she had a registered migration agent acting for her. The Tribunal hoped that this information would put the migration agent on notice, if the agent was not on notice already, that the applicant could simply not meet the requirements of the visitor visa.

16. On 2 May 2022 the applicant responded to the information through the migration agent by way of a written statement attaching the email notification of the approval of the 8503 waiver application, a receipt for payment and application for a contributory parent visa application and a medical certificate. The submission wrote that there were ‘compelling and compassionate reasons’ for the grant of the visa.

17. The Tribunal was troubled by the response. It seemed to suggest that the agent did not understand the operation of PIC 3001 and was requesting that the Tribunal waive the PIC 3001 requirements, which it could not do.

18. On 3 May 2022 the Tribunal wrote to the applicant via the migration agent and asked for written submissions by 4pm on 4 May 2022 to demonstrate where PIC 3001 is permitted to be waived. The migration agent ignored this request. The Tribunal assumed the lack of response indicated that the applicant may not be continuing with the review application.

19. A subsequent telephone call to agent on 6 May 2022 from Tribunal staff to follow up the submission was met by the agent. The agent said that he relied upon the earlier submission dated 2 May 2022 and that the applicant was continuing with the review application. The Tribunal indicates its displeasure at the migration agent refusing to provide a written submission as directed by the Tribunal addressing a fundamental issue that relates to the grant of the visitor visa.

20. At the Tribunal hearing, the Tribunal repeated the essence of the s 359A letter and the fact that she could not be granted the visitor visa for those reasons. The applicant indicated she understood this but sought to explain the circumstances which led to the application being made after the 28-day period expired. She repeated the circumstances as outlined in the material submitted and submitted that this was unfair because the notification granting the waiver of Condition 8503 was not received within time.

    FINDINGS AND REASONS

21. The issue in the present case is whether the applicant meets PIC 3001 for the purpose of cl 600.223.

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

23. There is no ability to waive PIC 3001 for the purpose of cl 600.223. The circumstances which led up to the applicant no longer holding a visitor visa are irrelevant when the visitor visa application is made after 28 days have expired since the applicant’s last substantive visa ceased.

24. In the circumstances of this case, the applicant held a visitor visa which expired on 31 December 2020. A visitor visa is a substantive visa for the purpose of s 5 of the Act, because that section defines a substantive visa as a visa other than a bridging visa, criminal justice visa, or an enforcement visa.’

25. Regrettably for the applicant, there is no ability of the Tribunal to take into account the circumstances which led to the visitor visa application being made after the 28-day period following the expiration of her visitor visa ceased. While the applicant has the right to apply to the Tribunal for review of the refusal decision, the inevitability of outcome should have been considered before doing so to save the applicant the unnecessary cost of a review application that could bring her no relief.

26. The applicant does not satisfy PIC 3001 for the reasons discussed. As a result, she fails to satisfy cl 600.223. She cannot meet the requirements for the grant of the visitor visa.

    DECISION

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

    Nathan Goetz
    Member