Chi (Migration) [2020] AATA 3927 (20 July 2020)

Last Updated: 7 October 2020

Chi (Migration) [2020] AATA 3927 (20 July 2020)

DECISION RECORD

DIVISION: Migration & Refugee Division

REVIEW APPLICANT: Mr LiangBo Chi

VISA APPLICANT: Mrs MeiQiong Lin

CASE NUMBER: 1819852

DIBP REFERENCE(S): BCC2018/1711591

MEMBER: Ian Garnham

DATE: 20 July 2020

PLACE OF DECISION: Melbourne

DECISION: The Tribunal remits the application for a Visitor (Class FA) visa for reconsideration, with the direction that the applicant meets the following criteria for a subclass 600 (Visitor) visa:

• Public Interest Criterion 4013 for the purposes of cl.600.213 of Schedule 2 to the Regulations

Statement made on 20 July 2020 at 8:26am

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – subclass 600 (Visa) – Tourist stream – incorrect information – failed to declare the 2017 visa refusal –application made less than three years after the cancellation of the previous visa – a neglectful error rather than an intentional one – compassionate or compelling circumstances–decision under review remitted

LEGISLATION

Migration Act 1958, ss 65, 116

Migration Regulations 1994, Schedule 2, cl 600.213, Schedule 4

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 Immigration on 14 June 2018 to refuse to grant the visa applicant a Visitor (Class FA) subclass 600 visa under s.65 of the Migration Act 1958 (the Act).
2. The visa applicant applied for the visa on 18 April 2018.
3. The Departmental (Department of Home Affairs (DHA)) delegate refused to grant the visa on the basis that the visa applicant did not meet a mandatory requirement of the visa criteria.
4. This matter was heard together with a review of the visa applicant’s husband’s decision to refuse his tourist visa.^[1]
5. The review applicant (who is the husband of the visa applicant’s daughter) appeared before the tribunal on 20 September 2019 to give evidence and present arguments. The Tribunal also received oral evidence from; the visa applicant and her husband by conference telephone, their daughter, Mrs Fangyan Zheng (the review applicant's wife) also provided evidence.
6. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
7. The review applicant was represented in relation to the review by his registered migration agent. The representative attended the tribunal hearing.
8. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in the present case is whether the visa applicant meets Public Interest Criterion 4013 for the purposes of her Tourist visa application.

The Legislation and Consideration:

10. The delegate found that the visa applicant did not meet subclause 600.213(a) of Schedule 2 of the Migration Regulations 1994 (the Regulations). It requires, among other things, that the applicant meets Public Interest Criteria (PIC) 4013 of Schedule 4 of the Regulations.
11. It states:

4013 (1) If the applicant is affected by a risk factor mentioned in subclause (1A), (2), (2A) or (3):

(a) the application is made more than 3 years after the cancellation of the visa or the determination of the Minister, as the case may be, referred to in the subclause that relates to the applicant; or

(b) the Minister is satisfied that, in the particular case:

(i) compelling circumstances that affect the interests of Australia; or

(ii) compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen;

justify the granting of the visa within 3 years after the cancellation or determination.

(1A) A person is affected by a risk factor if a visa previously held by the person was cancelled:

(a) under section 109, paragraph 116(1)(d), subsection 116(1AA) or (1AB) or section 133A of the Act; or

(b) under section 128 of the Act because the Minister was satisfied that the ground mentioned in paragraph 116(1)(d) of the Act applied to the person; or

(c) under section 133C of the Act because the Minister was satisfied that the ground mentioned in paragraph 116(1)(d) or subsection 116(1AA) or (1AB) of the Act applied to the person.

(2) A person is affected by a risk factor if a visa previously held by the person was cancelled under section 116, 128 or 133C of the Act:

(a) because the person was found by Immigration to have worked without authority; or

(b) if the visa was of a subclass specified in Part 2 of this Schedule--because the person did not comply with a condition specified in that Part in relation to that subclass; or

(c) if the visa was a Subclass 773 (Border) visa and, at the time of grant of the visa, the person was apparently eligible for a substantive visa of a subclass specified in Part 2 of this Schedule--because the person did not comply with a condition specified in that Part in relation to that subclass of substantive visa; or

(ca) because the person held a student visa and the Minister was satisfied that a ground mentioned in paragraph 116(1)(fa) of the Act applied to the person; or

(d) because the Minister was satisfied that a ground prescribed by paragraph 2.43(1)(ea), (i), (ia) , (j), (k), (ka), (kb), (kc), (m), (o), (oa), (ob), (s) or (t) applied to the person.

(2A) A person is affected by a risk factor if a visa previously held by the person was cancelled under section 137J of the Act.

(3) A person is affected by a risk factor if a visa previously held by the person was cancelled because the Minister was satisfied that a ground mentioned in paragraph 116(1)(e) of the Act applied to the person.

12. In this case, the visa applicant is affected by the risk factor described at subparagraph 4013(1A)(a) because a previous Tourist visa was cancelled pursuant to paragraph 116(1)(d) of the Act. This means it was cancelled because incorrect information was given by the holder; which was of a type that would have caused the visa to be cancelled if the visa applicant had been onshore.

(1) Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that:

..........................................................................

(d) if its holder has not entered Australia or has so entered but has not been immigration cleared — it would be liable to be cancelled under Subdivision C (incorrect information given by holder) if its holder had so entered and been immigration cleared; or

......................................................................

13. At the hearing and in the submissions the representative has explained that he prepared Tourist visa applications for the visa applicant in 2017 and 2018, prior to this visa application being lodged. The 2017 application was refused and the 2018 application was granted to the visa applicant on 12/03/2018. It was then cancelled on 15/03/2018 because the visa applicant failed to declare the 2017 visa refusal in the Visa history section of the application form. The role of the representative in the error or omission that caused the cancellation is discussed in more detail below.
14. Regardless of how the error occurred PIC 4013(1)(a) applies because this visa application was made on 18 April 2018 which is less than three years after the cancellation of the previous visa that occurred on 15 March 2018.
15. In this case, PIC 4013(1)(b)(ii) may apply if the Minister is satisfied there are; ...compassionate or compelling circumstances that affect the interests of an Australian citizen, ...permanent resident or eligible New Zealand citizen; and the circumstances justify granting the visa within the 3 year period.

Are there compassionate or compelling circumstances ?:

16. The delegate requested that the visa applicant provide compassionate and compelling circumstances but was not satisfied that the information that was provided justified ...the waiver of PIC 4013 and the grant of the visa.
17. The various submissions in this matter have all been prepared by the representative. In them he has always stated that he was responsible for the error occurring. In the final submission^[2] he reiterates this and provides information to support his argument that it was a neglectful error rather than an intentional one.
18. In simple terms, the representative prepared the visitor visa application forms for both the visa applicant and her husband; and forgot to include the visa applicant’s 2017 refusal. He now feels personally responsible that the visa applicant and her husband cannot visit their daughter and grandchildren in Australia. The representative has acted for the applicants for some time and his regret and guilt is exacerbated by the now needy circumstances of the applicants.
19. The review applicant is a permanent resident and his wife is an Australian citizen. Their 9yo and 5yo children are also Australian citizens. In the submission it was stated that the children are disappointed and had been expecting their grandparents to visit. Furthermore, the young children’s lives will be enhanced if they are able to spend some time with their maternal grandparents each year. In addition, the youngest child has been identified with delayed speech and development and attends an Early Childhood Intervention Centre. Her Occupational Therapist provided a letter dated 18/09/18 that stated that she believed the child and her mother would benefit from family-based support her parents would provide on a visit.^[3]
20. The review applicant’s wife has required mental health care treatment. Her psychologist and social worker have stressed the importance of family support to her recovery. They said her parents could provide support and diversion from her child-care role and allow her to focus on improving her health.^[4]
21. In 2019 the visa applicant underwent further surgery and chemotherapy for secondary cancer. Updated health records were provided to the tribunal.^[5] The medical reports and the family sentiment indicate that the visa applicant may have limited opportunities when she is well enough to travel to Australia for a short visit. All four of the visa applicant’s children have made statements hoping that their mother will be given an opportunity to fulfil a dream and get to visit her daughter and grandchildren, with her husband, in Australia.^[6]
22. At the hearing the visa applicant said that she just wants to come to Australia with her husband to visit her daughter and her grandchildren.
23. I am satisfied that the above circumstances are both compassionate and compelling. I am also satisfied they justify the granting of the visa.

DECISION

The Tribunal remits the application for a Visitor (Class FA) visa for reconsideration, with the direction that the applicant meets the following criteria for a subclass 600 (Visitor) visa:

• Public Interest Criterion 4013 for the purposes of cl.600.213 of Schedule 2 to the Regulations

Ian Garnham
Member

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^[1] 1819850 – 20 July 2020
^[2] At FF: 108-109 (AAT)
^[3] At F: 198 (AAT - 1819850)
^[4] At F: 102 (AAT)
^[5] At FF: 105–107 (AAT)
^[6] At FF: 52, 54, 64, 70,