Zhong (Migration)

[2022] AATA 668

Zhong (Migration) [2022] AATA 668 (4 March 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Zhengwei Zhong

REPRESENTATIVE:  Mr Wei Chen (MARN: 9685750)

CASE NUMBER:  2106835

HOME AFFAIRS REFERENCE(S):          BCC2021/253450

MEMBER:Rachel Da Costa

DATE:4 March 2022

PLACE OF DECISION:  Sydney

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

Statement made on 04 March 2022 at 10:26am

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – no substantive visa at the date of application – impact of the COVID19 pandemic – travel restrictions – request for Ministerial intervention – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 65, 351
Migration Regulations 1994, Schedule 2 cl 600.223; Schedule 3, Criterion 3001

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. The visa applicant is a 26 year old female from China. She first arrived in Australia on a Student visa on 21 July 2016. She has held a series of visas since that time.

2. The visa applicant applied for the Visitor (Class FA) visa on 16 February 2021. On 21 May 2021, a delegate of the Minister for Home Affairs refused to grant the visa applicant a Visitor (Class FA) visa under s 65 of the Migration Act 1958 (Cth) (the Act). The delegate refused the application on the basis that the visa applicant did not meet cl 600.223 because the visa applicant did not meet Schedule 3 criteria 3001 in the Migration Regulations 1994 (Cth) (the Regulations).

3. On 22 May 2021, the applicant lodged an application for a review of the delegate’s decision. The applicant provided a copy of the delegate’s decision with her application for review.

4. On 9 September 2021, the applicant’s representative filed written submissions which attached various documents including:

   ·     submissions on why the applicant’s application for review should be given priority by the Tribunal and why Ministerial intervention should be granted;

   ·     documents confirming the applicant’s enrolment in her course;

   ·     copies of the applicant’s past Student visas and Bridging visas;

   ·     the applicant’s submission to the Department accompanying her Visitor visa application;

   ·     the biodata page of her passport;

   ·     her application form for a Visitor visa;

   ·     articles and reports about Covid-19 and difficulties experienced by overseas students in Australia during the Covid-19 pandemic;

   ·     report by Tim Watson-Munro, Consultant Psychologist, dated 19 July 2021 on the applicant’s mental state;

   ·     letter from the University of Tasmania dated 22 February 2021 confirming that the applicant is welcome to seek re-entry into her Bachelor of Business program;

   ·     Screenshots of messages relating to the applicant donating blood at the Australian Red Cross.

5. The applicant appeared before the Tribunal on 3 March 2022 to give evidence and present arguments via telephone.

6. The applicant was represented in relation to the review. The Tribunal was assisted in the hearing by an interpreter in the English and Mandarin languages.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE AND FINDINGS

8. 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.

9. The criteria for a Subclass 600 visa are set out in Part 600 of Schedule 2 to the Migration Regulations 1994 (Cth). Relevantly to this case, they include cl 600.223.

10. Clause 600.223 provides:

    (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.

11. The delegate refused the application on the basis that the applicant did not meet Schedule 3 criterion 3001.

12. Criterion 3001 provides:

    (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.

13. Therefore, the issue in this case is whether the applicant meets the requirements of criterion 3001.

    Background

14. The applicant was born in Shanghai, China. In China she has her mother, father, aunts and uncles.

15. Before she same to Australia, the applicant was studying in China. In Australia, she has been living in Hobart at studying at the University of Tasmania. Her parents support her financially. In Hobart, she currently lives alone.

    Visa history

16. The applicant first arrived in Australia on 21 July 2016 as the holder of a Student visa. Since then she has held two subsequent Student visas, the most recent of which ceased on 30 June 2020. She gave evidence that she found out this visa had ceased when she went to apply for a Tax File Number because she wanted to work on a cherry farm.

17. On 4 February 2021 she was granted a Bridging Visa E. On 16 February 2021, she applied for the Visitor visa that is the subject of this application for review.

18. On 20 April 2021, the Department wrote to the applicant and invited her to comment on information that showed she did not hold a substantive visa within 28 days of lodging her application for a Visitor visa. The applicant’s migration agent responded on 22 April 2021 and indicated that the applicant accepted she did not meet criterion 3001, that the visa application should be refused and the applicant will exercise her right to appeal to the Tribunal and subsequently access Ministerial Intervention.  

    Does the applicant meet the requirements of cl 600.223?

19. Even though the applicant has conceded that she does not meet the criteria for the grant of a Visitor visa, the Tribunal has considered this question in any event.

20. The applicant gave evidence that she was in Tasmania, Australia at the time she applied for her Visitor visa on 16 February 2021 and that her previous Visitor visa ceased on 30 June 2020. Records of the Department of Home Affairs confirm this.

21. Therefore, the Tribunal finds that the applicant was in Australia at the time of application, and did not hold a substantive visa and the last substantive visa she held was not a Subclass 403 (Temporary Work (International Relations)) visa in the Domestic Worker (Diplomatic or Consular) stream. On that basis, the applicant must satisfy Schedule 3 criteria 3001 to be eligible for the visa.

    Does the applicant meet criterion 3001?

22. Criterion 3001 requires that the visa application must have been made within 28 days after the relevant day. The relevant day is defined in criterion 3001(2) as 28 days from the date the applicant last held a substantive visa.

23. The evidence before the Tribunal is that the applicant’s last substantive visa ceased on 7 August 2020 and she lodged her application for a Visitor visa (which is the subject of this application for review) on 16 February 2021. Therefore, her application was not lodged within 28 days of the relevant day.

24. On this basis, the applicant does not meet criterion 3001, which means she cannot meet the criteria in cl 600.223.

    Conclusion

25. For the above reasons the Tribunal is not satisfied that the applicant meets the requirements of cl 600.223.

    Request for Ministerial Intervention

26. As noted above, the applicant indicated to the Department that the reason she applied for a Visitor visa and lodged an application for review with the Tribunal was to give her the ability to apply for Ministerial intervention.

27. The applicant has requested that the Tribunal refer the case to the Department for consideration by the Minister pursuant to s 351 which gives the Minister a discretion to substitute for a decision of the Tribunal another decision that is more favourable to the applicant, if the Minister thinks that it is in the public interest to do so.

28. The applicant submits that her situation involves unique or exceptional circumstances and is suitable for Ministerial intervention for the following reasons:

    ·     The Covid-19 situation and associated restrictions have caused serious psychological impacts on international students like the applicant who are already under significant pressure and isolation due to being away from home;

    ·     The applicant was already struggling with her studies before Covid-19 but since online classes commenced she felt isolated and unsupported and struggled even more;

    ·     Had Covid-19 and the shift to online learning not occurred, the applicant would not have faced these issues and she would have been able to manage her situation and her visa obligations;

    ·     The applicant is suffering from depression and her mental state will be harmed if she is made to return to China without completing her studies;

    ·     There are ongoing risks and difficulties associated with travel to China due to the Covid-19 situation;

    ·     She has always complied with her visa conditions in the past;

    ·     Her university would welcome her making a new application for re-entry into her course;

    ·     She wants to be able to stay in Australia and complete her course.

29. As mentioned in paragraph 4 above, the applicant has provided submissions and supporting documents relating to her situation and gave oral evidence in the Tribunal hearing in support of her request.

30. The Tribunal has considered the applicant’s evidence and submissions in support of her request. The Tribunal notes that the Minister’s guidelines refer to types of unique or exceptional circumstances including compassionate circumstances regarding your age, health or psychological state that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship; and that a person cannot be returned to their country of citizenship or usual residence due to circumstances beyond their control.

31. The Tribunal has considered the applicant’s case and the ministerial guidelines relating to the discretionary power set out in the Department’s Procedures Advice Manual (PAM3) and has decided not to refer the matter to the Department.

    DECISION

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

    Rachel Da Costa
    Member