Zuosong (Migration)

[2022] AATA 1858

Zuosong (Migration) [2022] AATA 1858 (23 May 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Peng Zuosong

CASE NUMBER:  2203384

HOME AFFAIRS REFERENCE(S):          BCC2021/915187

MEMBER:Linda Holub

DATE:23 May 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 23 May 2022 at 1:48pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – no substantive visa at the time of application – delay in online payment – close contact of confirmed COVID19 case – factors beyond the applicant’s control – impact of the COVID19 pandemic – decision under review affirmed        

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 600.223; 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 on 21 February 2022 to refuse to grant the applicant a Visitor (Class FA) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2.    The applicant applied for the visa on 19 January 2022. 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 delegate refused to grant the visa on the basis that the applicant did not meet cl 600.223 because having considered all available information the delegate found that the application for a Visitor (Tourist) (subclass 600) visa was lodged more than 28 days after the applicant last held a substantive visa. Therefore, the applicant does not meet Schedule 3 criteria 3001 of regulation 600.223(2) and on that basis the delegate found that the mandatory clause 600.223 has not been met by the applicant, and therefore the applicant is unable to meet the criteria for grant of a Visitor (Tourist) (subclass 600) visa.

4.    The applicant appeared before the Tribunal on 11 May 2022 to give evidence and present arguments. The Tribunal exercised its discretion to hold the hearing by telephone. The Tribunal determined it was reasonable to hold a hearing in this manner, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. No concerns were expressed by the applicant in regard to the hearing being conducted in this way nor was there any indication that he had any difficulty in understanding and responding to the questions being put. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

5.    The Tribunal also received oral evidence from the applicant’s son. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

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

CONSIDERATION OF CLAIMS AND EVIDENCE

1. Relevantly to this matter cl 600.223 requires the Tribunal to be satisfied that if the applicant was in Australia at the time of application and did not hold a substantive visa, 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 the applicant satisfies Schedule 3 criteria 3001, 3003, 3004 and 3005: cl 600.223(2).

2. In the present case, the applicant did not hold a substantive visa at the time of application and did not previously hold a Subclass 403 (Temporary Work (International Relations)) visa in the Domestic Worker (Diplomatic or Consular) stream. The issue in this case is whether the applicant satisfies Schedule criteria 3001, 3003, 3004 and 3005. These criteria are set out in the attachment to this decision.

Information available – Department’s file

9.    According to the Department’s Decision Record, the applicant lodged an application for a Visitor (Tourist) (subclass 600) visa on 21 January 2022. On that date, he held a bridging C (subclass 030) visa and was not holder of a substantive visa. The applicant last held a Visitor (Tourist) (subclass 600) which ceased on 20 December 2021.

1. The Department wrote to the applicant on 10 February 2022 a letter was sent via email inviting him to provide comment on the information that he did not hold a substantive visa within 28 days of lodging their application for a Visitor (Tourist) (subclass 600) visa.

2. The applicant was informed that there is no provision to grant a Visitor (Tourist) (subclass 600) visa to a person who applies for the visa more than 28 days after their last substantive visa ceased. A Visitor (Tourist) (subclass 600) visa therefore cannot be granted to a person in their circumstances.

3. On 16 February 2022 the applicant responded stating their local post office was closed during Christmas and New Year. They further stated they had to isolate due to a close contact before they could post the application on 16 January 2022.

4. The only additional submission provided to the Department is a copy of a pay slip in respect of the applicant’s son.

Evidence to the Tribunal

1. In a submission to the Tribunal the applicant made the following statements:

• on 21 December 2021, his son lodged the initial visa extension application via his immi account. The substantive visa ceased on 20 December 2021. The one-day delay is attributable to the BPay payment being delayed going through to the designated account.

• on 22 December 2021, his received an email informing him that the application was invalid and that a paper application must be submitted.

• on 16 January 2022, his son made the payment and mailed the paper application form to the designated Parramatta office. The reason for not doing this earlier was that he was identified as close contact of confirmed Covid case and the whole family (including the applicant) needed to self-isolate to ensure the best interest for the community and keep others safe and healthy.

• on 10 February 2022, his son received an email from the Department requesting clarification in relation to why the visa application was not made within 28 days after the substantive visa ceased to which he responded on 16 February 2022. On 21 February 2022 he was advised that the application was refused.

• he is 72 years old, and only has the one son who has been living in Sydney for 20 years. He has been visiting his son over the past 20 years and never had any issue with his visa and stay, he respects Australian values, culture and people.

• he has private health insurance to cover his entire stay in Australia to ensure he does not create any burden to the Australian community. During his stay his son provides all the necessary financial support.

• his son had his first baby girl on 1 September 2021, and the whole family hopes that he can spend more time with his granddaughter.

• the applicant cannot speak/read English, therefore he authorised his son to deal with anything on behalf of him during his stay in Australia. His son is currently working in a very demanding new job, plus the necessity to look after his parents and the new-born baby, as well as the Covid disruption, however he still managed to handle the visa application as per the Department’s request and he does understand why the application was refused.

• the reason of the visa application is to help his son’s family following the birth of their granddaughter who was born on September 2021. He is 72 and his wife is 68, and they find it very important to stay with the family during the Covid-19 pandemic. His wife has a valid visa, but he has to leave by himself if his application is refused. His son has provided all the financial support for his stay and he always respects and obeys Australian law.

• there may have been a delay in the transit of the application to the Parramatta office of the Department and payment may have been attributed to 21 January due to the Covid interruption. Evidence that the application fee was paid, and application sent via paper to Home Affairs Parramatta office on 16 January 2022 when the family came out of self-isolation was provided.

• as evidence Covid test results notification from Histopath on 18 and 30 December 2021 was provided.

Oral evidence at hearing

1. The applicant confirmed that his previous visa ceased on 20 December 2021. He stated that he received an email acknowledgement letter from the Department on 21 January 2021 stating it had received the application on 19 January and that his Bridging visa was granted on 21 January 2022.

2. The Tribunal explained to the applicant that the paper copy of the application and the express envelope in which it was sent were both date stamped by the Department on 20 January 2022 so it was unclear why an acknowledgment letter of 19 January would have been sent by the Department. When asked if it was in relation to the online application that was initially lodged, the applicant’s son responded it was not as that application was lodged on 21 December 2020.

3. The Tribunal explained that in this case it would go by the date stamp on the application and the envelope and rather than the date on the acknowledgement letter. The Tribunal explained to the applicant that irrespective of whether it utilised 19 or 21 January 2022 as the date of lodgement, the application was outside the 28 days.

4. The Tribunal explained that in order to satisfy criterion 3001 Schedule 3 the application for the visa must have been lodged within 28 days of the relevant day, which is the day he last held a substantive visa. The Tribunal again explained that regardless of whether 19 or 21 January is used, it was outside the 28 days in which the applicant last held a substantive visa. The Tribunal further explained that it has no power to exercise discretion in respect of criterion 3001.

5. In trying to help the applicant and his son understand that in relation to criterion 3001, it is a matter of fact as to whether or not the application was received by the Department within the 28 days the Tribunal again explained that it cannot take into account the circumstantial matters being raised. The Tribunal referred to the earlier evidence in which the applicant had previously acknowledged it was not lodged within 28 days of him holding a substantive visa.

6. The applicant’s son stated that 28-day requirement had never been mentioned to him before 10 February 2022 when it was referred to in correspondence from the Department. He told the Tribunal that during their isolation period they were unable to lodge earlier. He stated that Department made an error in their procedures which caused a delay in their application. He stated that he had written an email to the Department and asked what the requirements are and was not told about the time constraints. The Departmental office ‘Adam’ only told him to apply on paper. He only told them to lodge the application ASAP. He stated the email from the Department mislead him to take extra time to think about it. ‘Adam’ also provided an incorrect reference to the relevant clause He stated that if he had been aware of the timeframe, he would have taken the risk to despatch the paper application earlier despite being in Covid self-isolation.

7. Given the concerns expressed and the difficulty for the applicant and his son to accept the provisions of criterion 3001, of Schedule 3, the Tribunal again explained those provisions. The Tribunal explained that the application was lodged 28 days after the applicant last held a substantive visa and that it is the Tribunal’s role to apply the law to the relevant facts. In this case, the application either was or was not lodged within 28 days of the substantive visa ceased. The Tribunal again explained that irrespective of whether it uses 19 or 21 January 2022 the application was not lodged within that time period. The applicant stated they posted the application on 16 January. 2022. The Tribunal noted they had done so but explained that the date of posting is not the issue. The date of lodgement relates to the date the application is received by the Department not the date it was posted.

8. The applicant’s son asked what they should do. In response, the Tribunal told them that it is not appropriate for it to provide migration advice.

   
   
   

Does the applicant satisfy the relevant Schedule 3 criteria?

Criterion 3001

1. In order to satisfy criterion 3001, the application for the visa must have been lodged within 28 days of the relevant day. The ‘relevant day’ is defined in 3001(2), as set out in the attachment to this decision.

2. While the Tribunal accepts that it appears the acknowledgement sent to the applicant by the Department refers to the date of application as 19 January 2022, as noted above the application itself and the express envelope in which it was sent are both dated 20 January. The Tribunal accepts this and has utilised 19 January 2022.

3. As the visa application was not made within 28 days of the relevant day, the applicant does not satisfy criterion 3001.

4. For these reasons, the applicant does not satisfy criterion 3001 for the purposes of cl 600.223.

5. It follows that as the applicant does not satisfy the applicable criteria for the grant of a Subclass 600 visa, the decision under review must be affirmed.

DECISION

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

Linda Holub
Member

ATTACHMENT - Extract from Migration Regulations 1994

Schedule 3

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.

3003

If:

(a)the applicant has not, on or after 1 September 1994, been the holder of a substantive visa; and

(b)on 31 August 1994, the applicant was either:

(i)       an illegal entrant; or

(ii)      the holder of an entry permit that was not valid beyond 31 August 1994;

the Minister is satisfied that:

(c)the applicant last became an illegal entrant, or, in the case of a person referred to in subparagraph (b)(ii), last became a person in Australia without 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 the conditions that apply or applied to:

(i)       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

(ii)      any subsequent bridging visa; and

(f)the applicant would have been entitled to be granted an entry permit equivalent to a visa of the class applied for if the applicant had applied for the entry permit immediately before last becoming an illegal entrant or, in the case of a person referred to in subparagraph (b)(ii), if the applicant had applied for the entry permit on 31 August 1994; and

(g)the applicant intends to comply with any conditions subject to which the visa is granted; and

(h)the last entry permit (if any) held by the applicant was not granted 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.

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.

1. A visa or entry permit has not previously been granted to the applicant on the basis of the satisfaction of any of the criteria set out in:

   (a)this Schedule; or

   (b)Schedule 6 of the Migration (1993) Regulations; or

   (c)regulation 35AA or subregulation 42(1A) or (1C) of the Migration (1989) Regulations.