Zhu (Migration)

[2022] AATA 1289

Zhu (Migration) [2022] AATA 1289 (5 May 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Sijia ZHU

REPRESENTATIVE:  Mr Rhys STRANG

CASE NUMBER:  2111907

HOME AFFAIRS REFERENCE(S):          BCC2021/1337570

MEMBER:Nathan Goetz

DATE:5 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 05 May 2022 at 1:50pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – application made more than 28 days after last substantive visa held – remittal of refusal of second working holiday visa does not equate to holding substantive visa – no response to tribunal’s invitation to comment – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 57, 65, 359A, 360(2), (3), 363A
Migration Regulations 1994 (Cth), Schedule 2, cl 600.223(2)(b), Schedule 3, criterion 3001

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).

2. The applicant was represented in the review application by Mr Rhys Strang who was identified as an Australian legal practitioner.

   BACKGROUND

3. The applicant identifies as a 30-year-old female citizen of China presently located in Australia.

4. The applicant first arrived in Australia on 24 March 2018 holding a US-462 visa. This is a ‘work and holiday visa’ and was granted offshore on 10 November 2017. That visa ceased on 24 March 2019.

5. On 1 March 2019 the applicant was granted a bridging visa which ceased on 3 June 2019. On 3 June 2019 the applicant was granted another bridging visa. She departed Australia on 13 June 2019 and returned to Australia on 27 June 2019 holding the bridging visa.

6. On 25 June 2021 the applicant applied for the visitor visa that is the subject of the review application. On 30 June 2021 the applicant was granted another bridging visa that remains in place to date. This bridging visa came into effect when the bridging visa granted on 3 June 2019 expired on 3 August 2021.

7. On 25 August 2021 the delegate refused to grant the applicant 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 (‘the Regulations’) as required by cl 600.223 of Schedule 2 of the Regulations.

8. On 7 September 2021 the applicant applied to the Tribunal for review of the decision to refuse to grant the visitor visa.

9. On 20 April 2022 the Tribunal wrote to the applicant for two reasons.

10. The first reason was to invite the applicant under s 360 of the Act to appear at a Tribunal hearing scheduled for 9:30am on 12 May 2022 to 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 a Tribunal hearing because the Tribunal was unable to make a decision favourable to the applicant on the basis of the material it had.

11. The second reason was to invite the applicant under s 359A of the Act to comment on or respond to information that would be a reason or part of the reason to affirm the decision under review. The information is detailed later in this decision record. The letter advised the applicant of the consequence of a failure to comment on or respond to the information by 4 May 2022, namely that the Tribunal hearing would be cancelled, and the Tribunal would make a decision on the review application without taking any steps to allow or enable the applicant to appear at a Tribunal hearing.

12. The applicant did not comment on or respond to the information by the prescribed timeframe. Accordingly, the Tribunal hearing was cancelled, and the Tribunal has made a decision on the review application without holding a Tribunal hearing. There is no ability to hold a Tribunal hearing when the applicant has not responded to information raised under s 359A of the Act: ss 360(2), (3), 363A of the Act.

    CRITERIA FOR THE VISITOR VISA

    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.

    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.

    CONSIDERATION

13. The applicant’s paper-based visitor visa application form was signed by the applicant on 24 June 2021 and was completed with the assistance of her current legal representative.

14. The applicant declared she was presently located in Australia and wished to extend her stay in Australia until 24 June 2021. Her reasons for requesting a further stay in Australia was ‘unable to source flight to China.’ She declared that she held a current Australian visa and that her legal status in Australia was ‘other – BVA.’ The applicant declared her purpose of stay in Australia was ‘the applicant successfully reviewed a 462 visa refusal but the visa cannot be granted due to the time taken to conduct the review.’

15. Attached to the visitor visa application form were various documents and a written submission. None of the documents or submission are relevant to the issue being considered by the Tribunal and do not require to be detailed in the review application.

16. On 12 July 2021 the delegate wrote to the applicant under s 57 of the Act and detailed that ‘Department records indicate that the last substantive visa you held ceased on 24 March 2019. There is no provision to grant a Tourist stream (subclass 600) visa to a person who applies for the visa more than 28 days after their last substantive visa ceased.

17. As you were the holder of a bridging B visa and did not hold a substantive visa within 28 days of your visa lodgement, you may not meet Schedule 3 criterion 3001. A visitor (subclass 600) visa therefore cannot be granted to a person in your circumstances.’

18. The delegate invited the applicant to comment on this information within a prescribed timeframe. On 2 August 2021 the applicant responded by way of submission from her legal representative.

19. The submission contended that the ‘effect (of Schedule 3001, 3003 and 3004) is that in the applicant is afforded an opportunity to explain how they either became an illegal non-citizen or a person not holding a substantive visa as a result of reasons beyond their control and that compelling circumstances exist for the grant of the visa. This is what we intended to do now.’

20. The submission detailed that the applicant applied for a second subclass 462 visa on 1 March 2019 which was refused by the Department on 20 December 2019. The applicant applied to the Tribunal for review of the refusal decision and the Tribunal remitted the matter for reconsideration to the Department on 14 April 2021. After the case was remitted the applicant received notification that the second subclass 462 visa was unable to be granted due to ‘operation of law’ and the applicant was afforded a period of 60 days to either withdraw the visa application, leave Australia, or apply for another visa.

21. The submission then sought to summarise the ‘circumstances beyond the visa applicant’s control’ to explain why the applicant did not hold a substantive visa at the time she applied for the visitor visa on 25 June 2021. For reasons that will be apparent from this decision record, the ‘circumstances beyond the applicant’s control’ as summarised in the submission are unnecessary to detail in this decision record.

22. On 20 April 2020 the Tribunal raised with the applicant information that would be a reason or part of the reason for affirming the decision under review. The letter detailed the following:

    The particulars of the information are:

    Department records indicate that you last held a substantive visa (that is, a visitor visa) which expired on 24 March 2019.

    On 25 June 2021 you applied for a visitor visa.

    Schedule 3001(1) requires that you make a valid visa application within 28 days after the existing visitor visa expired, meaning that you needed to make a valid visitor visa application by 21 February 2021. As you did not make a valid visitor visa application by that date, it appears that you would not satisfy Schedule 3001(1). This means that you would not meet Schedule 3001.

    If you did not meet Schedule 3001, then you would not satisfy cl 600.223(2)(b) and would not meet the criteria for a grant of the visitor visa.

    This information is relevant to the review because it relates to your eligibility to meet the criteria for a grant of the visitor visa.

    If we rely on this information in making our decision, we may affirm the decision under review.

    You are invited to give comments on or respond to the above information in writing.

23. As detailed previously, the applicant did not comment on or respond to this information.

    FINDINGS AND REASONS

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

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

26. A ‘substantive visa’ is defined in the Act to mean a visa other than a ‘bridging visa, criminal justice visa, or enforcement visa.’ Therefore, the last substantive visa held by the applicant was the working holiday visa that she was granted on 10 November 2017 and ceased on 24 March 2019.

27. The fact that the applicant remitted the applicant’s second working holiday visa application on 14 April 2021 to the department for reconsideration does not equate to the applicant holding a substantive visa.

28. The written submission provided to the Department is misplaced as to the operation of PIC 3001 and 3004.

29. PIC 3001 provides a regime that requires the applicant to lodge a valid visa application within 28 days of the applicant ceasing to hold a substantive visa.

30. PIC 3004 provides a regime that where an applicant has lodged a valid visa application within 28 days of the applicant’s substantive visa ceasing, the applicant is required to demonstrate that the reason for not lodging the visa application while the applicant held the substantive visa was due to circumstance beyond the applicant’s control, among other things.

31. Clause 600.223 requires the applicant to satisfy PIC 3001, among others.

32. In the circumstances of the present review application, the applicant lodged the visitor visa application on 25 June 2021, which was some 824 days after her last substantive visa ceased.

33. Therefore, the applicant cannot satisfy PIC 3001 because the applicant did not lodge the visitor visa within 28 days of her substantive visa ceasing. As the applicant cannot satisfy PIC 3001, it follows that the applicant cannot satisfy cl 600.223.

    DECISION

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

    Nathan Goetz
    Member