1513997 (Migration)

[2016] AATA 3985

1513997 (Migration) [2016] AATA 3985 (16 June 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Viliami Kokohu Vi

CASE NUMBER:  1513997

DIBP REFERENCE(S):  CLF2014/97408

MEMBER:Denise Connolly

DATE:16 June 2016

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 16 June 2016 at 9:52am

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 4 November 2014 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 applicant applied for the visa on 11 July 2014. The delegate refused to grant the visa on the basis that the applicant did not satisfy cl.461.213 because the applicant did not hold a substantive visa at the time of application and did not meet the Schedule 3 criteria 3004. The delegate was not satisfied the applicant was not the holder of a substantive visa because of factors beyond his control, or that there were compelling reasons for granting the visa.

3. The applicant appeared before the Tribunal on 26 May 2016 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s wife, Mrs Tafa Mosaati Vi.  

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

6. The applicant has provided to the Tribunal a copy of the delegate’s decision record. It records that the applicant last entered Australia as the holder of a Subclass 461 New Zealand Citizen Family Relationship (Temporary) visa on 29 July 2009 valid until 10 July 2014. He lodged the visa application the subject of this review on 11 July 2014. The applicant told the Tribunal at the hearing that he knows he did not hold a substantive visa at the time of application. Accordingly, the Tribunal finds that the applicant did not hold a substantive visa at the time of the application.

7. As the applicant did not hold a substantive visa at the time of application, he is required to meet the criteria in cl.461.213(b). This requires him to satisfy the Schedule 3 criteria 3002, 3003, 3004 and 3005. The delegate found that the applicant did not meet criterion 3004 of Schedule 3 which 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.

8. At the hearing the Tribunal discussed with the applicant the requirements of criterion 3004. It asked about the factors leading to the applicant not holding a substantive visa at the time of application. The applicant said that he asked his wife to do everything for his new visa. She sent the visa application by express post to the Department in the week that it was due. However it appears that it was not delivered to the Department’s address until 11 July 2014. The applicant’s wife did not keep the sticker on the envelope with the bar code, or any other evidence confirming the date she sent the visa application. She thinks she sent it on the Saturday before the applicant’s substantive visa expired.

9. The Tribunal asked the applicant why he relied on his wife to make sure his visa application had been made in time. He indicated that around the time they had 3 children and he was the breadwinner, and they were moving house. His wife found his passport and realised his visa was about to expire. He said that he didn’t know how to fill out the form and he was busy working to support the family so he relied on his wife.  Also he only earned $600 per week and this was not enough to support the family and pay for the visa application. He acknowledged that his wife receives Centrelink payments for their children but said their rent is $420 per week, and after rent and food there was not enough to pay for the visa application. The applicant said there is also a language problem because his wife is the only one who can read English.

10. With respect to compelling reasons the applicant told the Tribunal that he and his wife now have 5 children and another baby on the way. He fears for his family if he is not able to work to support them. He stated however that he has not worked since his last substantive visa expired. He stays at home and helps look after the children. His wife cannot cope with the children on her own. Their oldest is only 6 years old. He takes her to school which is about 30 minutes’ drive.

11. The applicant’s wife’s evidence was essentially consistent with that of the applicant. She confirmed that she posted the visa application and thinks she did it some days before his substantive visa expired but she did not keep receipts or any evidence confirming the date she posted the application.

    Does the applicant satisfy criterion 3004?

12. The Tribunal has considered all of the evidence in relation to the factors leading to the applicant not holding a substantive visa at the time of application. The applicant and his wife have suggested that the visa application was sent by express post some days before his substantive visa expired. However the applicant has not provided any documentary evidence that this was in fact the case. In the absence of evidence confirming that the applicant, or his wife, had actually sent by express post the visa application several days before the substantive visa expired, the Tribunal is not satisfied that this in fact occurred. It is not satisfied that there is reliable evidence confirming that the visa application was lodged with the Department after the applicant’s substantive visa expired because Australia Post was late in delivering an express post item.

13. The Tribunal accepts that the applicant was working around the time his substantive visa expired. It accepts that his English is not as good as his wife’s and that he cannot read in English. It accepts that the applicant’s household was busy at the time because the family was moving, although the applicant has not provided any documentary evidence confirming the actual date that the family moved. However it accepts that moving with 3 children would have been stressful and somewhat hectic. It accepts that it was not until the move that his wife found his passport and realised his substantive visa was about to expire. It acknowledges that the family may have been under some financial pressure because of the costs of housing and feeding a family. It does not accept however that these are factors beyond the applicant’s control. The Tribunal is of the view that the applicant’s circumstances are typical of many young families and do not mitigate his responsibility to ensure that he has lodged his visa application before his substantive visa expired. The Tribunal is not satisfied that these circumstances constitute factors beyond the applicant’s control to explain his failure to lodge his visa application prior to his substantive visa expiring.

14. In all the circumstances, the Tribunal is not satisfied that the applicant was not the holder of a substantive visa at the time of the application because of factors beyond his control. The applicant therefore does not meet criterion 3004(c).

15. 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.

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

17. The Tribunal acknowledges that the applicant’s wife may need his support to care for their young children and that this may be a compelling reason for granting the visa. However the applicant does not meet criterion 3004(c), a requirement in his case. It may be appropriate for the applicant to consider asking the Minister to intervene.

    DECISION

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

    Denise Connolly

    
    

    Member