Zhao (Migration)

[2022] AATA 1282

Zhao (Migration) [2022] AATA 1282 (4 May 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Chongmin Zhao

REPRESENTATIVE:  Mr Niu Jin (MARN: 1682273)

CASE NUMBER:  2102979

HOME AFFAIRS REFERENCE:               BCC2020/2629355

MEMBER:Rosa Gagliardi

DATE:4 May 2022

PLACE OF DECISION:  Australian Capital Territory

DECISION:The Tribunal affirms the decision not to grant the visa applicant a Visitor (Class FA) visa.

Statement made on 04 May 2022 at 2:46pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – no substantive visa held at time of application – factors beyond applicant’s control – COVID-19 lockdowns, inability to work and emotional and mental health – compelling reasons for granting visa – cost of return flight and quarantine regulations in home country – country information – decision under review affirmed

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

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 2 March 2021 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 visa applicant applied for the visa on 6 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 (the Regulations). Relevantly to this case, they include cl.600.223, which requires that if the applicant was in Australia at the time of an application, and did not hold a substantive visa, the applicant satisfies Schedule 3 criteria 3001, 3002, 3003, 3004 and 3005.

4. Schedule 3 criterion 3004 requires that if the applicant ceased to hold a substantive visa on or after 1 September 1994, the Minister is satisfied that the applicant is not the holder of a substantive visa because of factors beyond their control; and there are compelling reasons for granting the visa.

5. The delegate refused to grant the visa on the basis that the visa applicant did not meet cl.600.223 because she did not hold a substantive visa at the time of the visa application and the delegate was not satisfied that this was due to factors beyond his control.  Nor were there any compelling reasons identified for the grant of the visa.

6. The applicant appeared before the Tribunal on 28 April 2022 to give evidence and present arguments. The Tribunal also received oral evidence from his friend, Ms Zhemin Xie.  The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

7. The applicant was represented in relation to the review.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in the present case is whether cl.600.223 is met.  As the applicant was in Australia and did not hold a substantive visa at the time of application, cl.600.223 requires that he satisfies Schedule 3 criterion 3004 (the Schedule 3 criteria is cumulative and therefore if one fails, all fail). 

   
   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.

   Criterion 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.

10. The applicant’s previous Visitor visa ceased on 1 November 2020.  This application was made on 6 November 2020.  Previous to his Visitor visa the applicant held a Working Holiday visa. 

    Factors beyond the applicant’s control

11. The applicant stated at hearing that emotionally and mentally he suffered during the lock down in Victoria and that his mental health was compromised and that he simply forgot about the expiry of his visa application.  All things being equal, the Tribunal considers that many persons were adversely affected during the ongoing lock downs in Victoria.  The applicant has not provided evidence of having sought treatment for his mental health, however, he gave realistic evidence at hearing that he spent his days waking, washing, eating and going to bed and was depressed.  He had not been able to undertake work in regional Australia as he had intended to do because of the 5 kilometres ban on travelling anywhere.   For some reason, he also appears not to have availed himself of the opportunity to speak to a mental health professional through the telehealth facility available during that time. 

12. The applicant’s close friend wrote in a statutory declaration dated 11 February (2022?) that she was aware that COVID-19 affected the applicant badly and that he followed the regulations to stay home and did not visit friends.  She also declared, among other things, “I could tell that he has become emotionally depressed, especially after he remembered the visa expiration date.  As a friend, I was so worried about him, and I could not image (sic) how much pressure he had been suffering during that time…Unfortunately, the international flight tickets are so expensive and domestic flights could be cancelled all of a sudden”. 

13. Despite the lack of medical evidence regarding the applicant’s state of mind during lock down and how it might have affected his ability to lodge his Visitor visa on time, the Tribunal is prepared to accept that the applicant’s reaction to the circumstances of a prolonged lockdown affected him in a way that affected his judgement.  While the Tribunal accepts that there might be factors beyond the applicant’s control for not having a substantive visa on lodgement of this application, the Tribunal is also required to be satisfied that there are compelling reasons for the grant of the visa.

    Are there compelling reasons for the grant of the visa?

14. The Tribunal has referred to the dictionary for the ordinary meaning of compelling.  In the Merriam-Webster dictionary synonyms for the term compelling include: convincing, forceful, strong and persuasive.[1]  In the Cambridge English dictionary, related words to compelling have been listed as, among other things: driving, life-altering, powerfully, forcibly, unshakeable, piercing.[2]  In other words, the reasons for the grant of the visa must be forceful, such that the Tribunal is compelled to find that there are powerful reasons for the grant of the visa.

    [1] Compelling Definition & Meaning - Merriam-Webster, accessed on 2 May 2022.

    [2] accessed on 2 May 2022.

15. The applicant gave several reasons he considers are compelling for the grant of the visa:

    A)   He will have to undergo 4 weeks of quarantine on return to China and he is fearful of going through that experience again;

    B)   China is also experiencing unprecedented lockdowns as the government reacts to increasing cases of COVID-19.  His hometown of Harbin City is now in lock-down;

    C)   The flights to China are extremely expensive and he would rather spend his money on restaurants and undertaking tourist activities in Australia;

    D)   He wants to compete in a marathon on the Gold Coast in July 2022; and

    E)   He has so much luggage he cannot catch a domestic flight to Sydney to board a flight to China as he has excess baggage and that would be expensive.  He also is not permitted to post things which he is unable to take on the plane according to government regulations.

16. The applicant has not presented any verifiable information to indicate that as he suggested, the applicant would need to quarantine for two weeks on his first port of call in China, and then another two weeks on arrival in his home city.  The Tribunal’s research shows that there are restrictions for inbound travellers to China and that border restrictions are tight, however.[3]  The travel restrictions imposed on inbound travellers are listed as follows:

    1.    You must take a first nucleic acid test 7 days before boarding.

    2.    Fill out a Personal Health Monitoring Form.

    3.    Within 48 hours before departure, take a second and third nucleic acid test. 

    4.    Submit three negative nucleic acid test certificates, Personal Health monitoring Form, and Letter of Commitment on COVID-19 Vaccination on the China Health Declaration Certificate website.

    5.    If the result is negative, you will get a Health Declaration Form (HDF) Certificate of Health Declaration Code (HDC) from the website within 12 hours.[4]

    [3] China Travel.com, “China Travel Restrictions 2022”, Updated 7 March 2022, accessed on 2 May 2022”. 

    [4] Ibid.

17. The Tribunal agrees that these restrictions impose inconvenience to returning travellers but whether they constitute compelling reasons for the grant of the visa is another matter.  In the first instance, it seems that some form of restrictions are imposed on travellers entering many foreign countries in relation to testing for COVID-19 prior to departure.  The Tribunal also understands there may be a cost associated with undertaking such tests, but again, the Tribunal is not persuaded that COVID-19 testing costs are compelling reasons for granting the visa. 

18. Moreover, the restrictions in terms of testing and so forth are likely to continue into the future for some time.  There is little to indicate from the country information that such restrictions will not continue into 2022 in terms of returning to China.[5]  As such, it would mean the applicant maintain an ongoing presence in Australia, contrary to the purpose of a Visitor visa which requires an applicant to have a genuine intention to stay in Australia only temporarily.  The Tribunal considers it noteworthy that the applicant could have departed Australia once the borders had opened here and the pandemic had appeared to settle in China, albeit the Tribunal acknowledges this was a narrow window of opportunity.

    [5] Ibid.

19. In terms of the applicant’s claims that overall, he will have to quarantine for four weeks on arrival in China broken up into two sets of fortnights: two weeks on arrival at first port of call and then a further two weeks at final destination, little supporting evidence has been submitted that this is the case.  The country information before the Tribunal indicates that Beijing requires 14 days’ centralized quarantine at a designated site and 7 days’ home quarantine, plus 7 days’ community health monitoring.[6]  In Shanghai where the pandemic has hit particularly hard the requirement is 14 days of centralised quarantine at a designated site, plus 7 days’ home quarantine.[7]  In terms of Harbin City the Tribunal notes that it is designated a “high risk area” [8], even though it is not clear that the applicant would have to quarantine in the layover city and then in Harbin itself again for another two weeks.  Most likely he would have to quarantine at home also after any quarantine in a lay over city or within Harbin itself.

    [6] Ibid.

    [7] Ibid.

    [8] accessed on 3 May 2022. 

20. The Tribunal appreciates that the applicant has a fear of quarantine and the isolation caused, however, he will be in his home country and will have family to support him via electronic communication during any period of quarantine.  The Tribunal also considers that the applicant has had ample opportunity now, particularly as he has a migration agent to guide him, to seek assistance from a mental health professional to deal with any concerns about quarantine and feeling isolated.  The applicant has shown little commitment to date to deal with this issue in a meaningful way. 

21. The Tribunal also acknowledges that any quarantine periods will have to be funded by the applicant.  The Tribunal is unaware as to how the applicant has been able to afford to stay in Australia without working, given he claims he could not undertake specified regional work, and given that he was not permitted to work on a Visitor visa.  This would indicate to the Tribunal that the applicant has had access to funds for an ongoing period and in that light, the Tribunal is not satisfied that the applicant, being in quarantine and not working for some 3 to 4 weeks, depending on the rules in Harbin City, will suffer significant hardship financially.  Nor is the applicant claiming that this will be the case.  The Tribunal has assessed whether an expectation of being in quarantine for up to four weeks (some of which might be at home), constitutes compelling reasons for the grant of the visa, but the Tribunal is not persuaded that this is the case.  The situation in China regarding COVID restrictions, including the need to quarantine may continue indefinitely.  The requirements imposed by China are quite strict, but the Tribunal is not satisfied that they are so harsh as to be compelling reasons for the grant of the visa.

22. The Tribunal also appreciates that Harbin may be in lockdown and that the applicant wants to be able to move around freely as he currently does in Australia.  Nonetheless, the applicant has not taken the opportunity while in Australia to seek medical assistance to build his resilience to face this situation.  Furthermore, the applicant in China will return to his family and his large social circle which the applicant claimed he was eager to do. 

23. While no doubt the applicant would like to avoid a situation where he will be in lockdown for some period in Harbin City, the fact he will be with his family and not isolated in a foreign country leads the Tribunal to find that the current lockdowns in China do not constitute compelling reasons for the grant of the visa.

24. The Tribunal also appreciates that the applicant may have a fear of contracting the virus either on the way to Harbin City on the plane or post his arrival.  Nonetheless, the applicant did say that he had had the benefit of two vaccines in Australia and most airlines ensure the wearing of masks on flights to mitigate the risk of being infected. 

25. The applicant has also cited that there are few flights out of Australia and that those that do depart the country all have to go through Shanghai where he would have to quarantine.  He also stated that the cost would be prohibitive.  The Tribunal has had regard to the publicly available information and as put to him at hearing, it appears that not all flights go through Shanghai.  Indeed, the Tribunal found Xiemen Airlines fly though Gunagzhou or Xiamen.[9]  Other information also shows that flights out of Sydney to Harbin with a departure date of 1 June 2022, can be obtained for AUD1,162. [10]

    [9] accessed on 3 May 2022.

    [10] accessed on 4 May 2022.

26. Having assessed the evidence the Tribunal is not satisfied that the applicant has made his case that he will suffer significant hardship in returning to China at this time and that there are compelling reasons for the grant of the visa on the basis of the cost of his airfare or that COVID is prevalent in China.

27. In terms of the applicant’s claims that he needs to leave from Melbourne rather than from Sydney to take back all his luggage, and that excess luggage will be very costly flying domestically, the Tribunal does not consider that there is anything “piercing” or “life-altering” or “powerful” about this matter to lead the Tribunal to be satisfied that there are compelling reasons for the grant of the visa.  While the applicant might experience inconvenience and may have to sell some of his goods, the Tribunal does not consider that his circumstances in this regard are compelling.

28. The Tribunal has also considered the applicant’s claims he wants to remain in Australia until July 2022 to participate in a marathon at the Gold Coast.  While the Tribunal acknowledges this to be a worthwhile aspiration, the Tribunal does not find that of itself this is a compelling reason for the grant of the visa.  While it may be a preference of the applicant to partake in such an event, there is nothing to indicate that not being able to participate will cause significant hardship to him.

29. The Tribunal has assessed the applicant’s claims individually and cumulatively but overall is not satisfied that there are compelling reasons for the grant of the visa.  As such, the applicant does not meet criteria 3004(d) and cannot meet the requirements of cl.600.223.

    DECISION  

30. The Tribunal affirms the decision not to grant the visa applicant a Visitor (Class FA) visa.

    Rosa Gagliardi
    Member