1503471 (Migration)

[2015] AATA 3004

1503471 (Migration) [2015] AATA 3004 (2 July 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Sharada MUTUKULLA

CASE NUMBER:  1503471

DIBP REFERENCE(S):  CLF2014/26199

MEMBER:Hugh Sanderson

DATE:2 July 2015

PLACE OF DECISION:  Sydney

DECISION:The tribunal affirms the decision not to grant the applicant a New Zealand Citizen (Family Relationship) (Temporary) (Class UP) visa.

Statement made on 02 July 2015 at 11:16am

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 6 March 2015 to refuse to grant the visa applicant a New Zealand Citizen (Family Relationship) (Temporary) (Class UP) Subclass 461 visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 19 February 2014. The delegate refused to grant the visa on the basis that the applicant did not satisfy cl.461.213. The delegate made this finding of the basis that the applicant did not haold a substantive visa at the date of the application and did not meet the Schedule 3 criteria 3004. This finding was based on the fact that the delegate was not satisfied that the applicant was not the holder of a substantive visa because of factors beyond her control or that there are compelling reasons for granting the visa.

   Background

3. The applicant is a citizen of India. She is the wife of Parashuram Mutukulla who she married on 29 November, 2001. Her husband was born in India and became a citizen of New Zealand on 4 September, 2007. Her parents and three siblings continue to live in India. She has two children aged 11 and 5 years old.  They are both New Zealand citizens.

4. The applicant first arrived in Australia on 9 November, 2008 holding a subclass 461 New Zealand Citizen (Family Relationship) visa. This visa expired on 16 October, 2013. She has not held another substantive visa since then. The family have lived primarily in Australia since 2008.

5. Since arriving in Australia the applicant has travelled overseas to India on the following occasions:

   ·From 25 March, 2009 to 22 June, 2009 (2 months and 28 days);

   ·From 3 February, 2010 to 10 November, 2010 (9 months and 7 days); and

   ·From 7 November, 2012 to 29 January, 2013 (2 months and 22 days).

6. The applicant’s husband has travelled overseas over the same period on the following occasions:

   ·From 16 February, 2009 to 16 May, 2009 (3 months);

   ·From 11 December, 2010 to 31 December, 2010 (20 days);

   ·From 22 November, 2011 to 18 December, 2011 (27 days); and

   ·From 7 November, 2012 to 18 December, 2012 (1 month and 11 days).

7. As at the time of the filing of the current application the applicant had not held a substantive visa for more than four months it did not appear that the applicant met criterion 3004 of the Schedule 3 criteria. The department invited the applicant to provide information why she was not the holder of a substantive visa because of factors beyond her control and any compelling reasons for granting the visa.

8. The applicant responded by making the following claims:

   ·She believed the visa was valid until 16 October, 2014 and not 16 October, 2013;

   ·She and a husband have two daughters, one 3 years old and one a year 3 student and her children had been sick;

   ·She is a housewife and is supported by her husband who works part-time;

   ·Her husband was looking for full-time work which was stressful; and

   ·All the circumstances led her to forget to apply for the visa in time.

9. The delegate who considered the application was not satisfied that the above reasons provided by the applicant constituted factors beyond her control. The delegate was not satisfied that there were compelling reasons to grant the visa. Accordingly, the application was refused.

   The hearing

10. The applicant appeared before the tribunal on 2 June, 2015 to give evidence and present arguments. The tribunal also received oral evidence from the applicant’s husband. The tribunal hearing was conducted with the assistance of an interpreter in the Telugu and English languages.

11. The applicant confirmed that when she had left Australia after arriving in 2008 she had returned to India for various family reasons. She said that she usually stayed with her parents or with her husband’s family. She said that all her immediate family have the continuing right to live in New Zealand.

12. The tribunal invited the applicant to set out what factors it was that led to the applicant not having a substantive visa at the time of the application. She said that she and a husband thought that the visa did not expire until October 2014. She said that they really didn’t concentrate on it and it was a mistake. She said that they applied for the visa when they did because they were looking through her passport for another reason and saw that the visa had expired.

13. The applicant said that her husband was concentrating on his work at Officeworks and her two daughters were having problems after they returned from India in January 2013. She said that her youngest daughter had lost a lot of weight while she was in India because of her fussy eating and her eldest daughter was being bullied at school. She said that due to all these distractions she and her husband forgot to apply for the visa in time.

14. The applicant had no other reason for why she did not hold a substantive visa at the time of the application.

15. The applicant’s husband gave consistent evidence to that given by the applicant. He said that when the visa was granted they thought it was a five-year visa which was why they thought that it did not expire until October 2014. The tribunal noted that the applicant’s original visa was granted on 17 October, 2008 and so the five-year visa expired on 16 October, 2013. The applicant’s husband agreed with this and said that it was just a mistake. He said that they realised in January 2014 that the visa had expired and then it took them some time to obtain the necessary documents to file in support of the application.

16. For the following reasons, the tribunal has concluded that the decision under review should be affirmed.

    CONSIDERATION OF CLAIMS AND EVIDENCE

17. The issue in the present case is whether the applicant held a substantive visa at the time of the application and, if she did not, whether she meets the Schedule 3 criteria.

18. The applicant was granted a subclass 461 New Zealand Citizen Family Relationship (Temporary) visa on 17 October, 2008. This is a five-year visa and expired on 16 October, 2013. The current application was not filed until 19 February, 2014, more than four months after the visa had expired. Accordingly, the tribunal finds that the applicant did not hold a substantive visa at the time of the application.

19. As the applicant did not hold a substantive visa at the time of the application, she is required to meet the criteria in cl.461.213(b). This requires her to satisfy the Schedule 3 criteria 3002, 3003, 3004 and 3005. The department based their findings on the fact that the applicant did not meet the criteria in 3004 of Schedule 3.

20. Criterion 3004 of Schedule 3 states as follows:

    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.

21. The basis of the department’s decision was that the applicant did not satisfy criterion 3004(c) as the delegate was not satisfied the reasons why the applicant was not the holder of a substantive visa at the time of the application were because of factors beyond her control. It is noted that an additional criteria in 3004(d) is that there are compelling reasons for granting the visa and, therefore, the issue of compelling reasons for granting the visa are a separate issue and not relevant when considering the factors beyond the applicant’s control as to why she did not hold a substantive visa at the time of the application.

22. The acknowledged reason why the applicant did not hold a substantive visa at the time of the application was that it was a mistake and she simply forgot to file the application prior to her existing visa expiring on 16 October, 2013. She acknowledged that when the visa was granted to her she was aware that it was a five year visa. For an unknown reason she, and her husband, believed that the visa did not expire until October 2014, six years after it was first granted. There is no evidence before the tribunal that the applicant, or her husband, were misled at any time by the department or any other person as to the time when her original subclass 461 visa expired.

23. The tribunal has taken into account the circumstances of the applicant and her family at the time before the visa expired. The description of the pressures on that family, including work and financial pressures on the husband and difficulties in the lives of their children, are typical of almost all family circumstances. The tribunal is not satisfied that they constitute factors beyond the applicant’s control to explain the failure of her to apply for the current visa prior to her previous visa expiring.

24. In all the circumstances, the tribunal is not satisfied that the visa applicant was not the holder of a substantive visa at the time of the application because of factors beyond her control. Accordingly, the tribunal finds the applicant does not satisfy criterion 3004 of Schedule 3 and therefore does not meet the criteria in cl.461.213.

25. As the applicant does not meet the criteria in cl.461.213 the decision to refuse the application must be affirmed.

    DECISION

26. The tribunal affirms the decision not to grant the applicant a New Zealand Citizen (Family Relationship) (Temporary) (Class UP) visa.

    Hugh Sanderson
    Member