1603909 (Migration)

1603909 (Migration) [2016] AATA 4180 (1 August 2016)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Khayyam Saeed Khan
CASE NUMBER:  1603909
DIBP REFERENCE(S):  BCC2015/2989603
MEMBER:Tony Caravella
DATE:1 August 2016
PLACE OF DECISION:  Perth
DECISION:The Tribunal affirms the decision not to grant the applicant a New Zealand Citizen (Family Relationship) (Temporary) (Class UP) Subclass 461 visa.

Statement made on 01 August 2016 at 10:44am

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 2 March 2016 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).
The visa applicant applied for the visa on 9 October 2015. The delegate refused to grant the visa on the basis that the delegate found the applicant does not meet the requirements prescribed in cl.461.213 of Schedule 2 to the Migration Regulations 1994 (the Regulations). In particular, the delegate found the applicant failed to satisfy the criteria in 3004 of Schedule 3 to the Regulations.
The delegate’s decision dated 2 March 2016, sets out a chronology of the applicant’s visa history starting with his first arrival in Australia as the holder of a Student (Subclass 572) visa on 02 April 2014. The delegate notes that the Student visa ceased on 12 September 2015.
On 22 March 2016, the applicant applied to this Tribunal for a review of the delegate’s decision. A copy of the delegate’s decision record accompanied the application for review.
On 4 July 2016, the Tribunal received two letters of character reference on behalf of the applicant. The first is from Kathy Burton who declares, amongst other things, that she has known the applicant for one year and three months. The other reference is from Annette Ellis who declares that she met the applicant through Shonna Burton (Ms Burton). Ms Burton married the applicant on 1 October 2015. Evidence of the registration of that marriage is found in a copy of a Marriage Certificate submitted to the Department and issued on 1 October 2015 by the Registrar of Births, Deaths and Marriages (WA).
The applicant appeared before the Tribunal on 8 July 2016 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Shonna Anne Burton (Ms Burton).
The applicant was represented in relation to the review by his registered migration agent.
After providing introductory comments as to the procedure of the hearing, the Tribunal invited the applicant to indicate what understanding he had of the reason why the application was refused. His response was that he believes it was refused because the Department was worried about his passport having expired. The Tribunal explained the delegate’s decision indicates something rather more than that. The Tribunal explained that the delegate found the applicant failed to satisfy schedule 3 criterion 3004 and explained the provisions prescribed in that criterion. The Tribunal also explained that on the evidence before it, it appeared that the applicant does not meet the requirement of Schedule 3 criterion 3004(f), in particular.
The applicant told the Tribunal that before his student visa expired, he had booked his IELTS test. He then said that he did not know at that time that his passport had expired.
The applicant told the Tribunal that he now has a current passport as he has renewed it. He said that he obtained his new passport on 5 October 2015.
Ms Burton told the Tribunal that she and the applicant met online in January 2015. They then met physically, or in person, a few days later. She said from there they formed a long term relationship which led to their marriage on 1 October 2015.
The Tribunal asked the applicant and Ms Burton whether they had lived together before marrying. They informed the Tribunal that they lived separately until they married. Ms Burton confirmed that the visa applicant resided in a rental property before they married. Ms Burton said she has her own property and that she lived there before they were married.
Ms Burton told the Tribunal that the applicant thought he would be able to attend and participate in the IELTS examination without having to present a current passport.
When asked to comment on the circumstances that gave rise to the applicant failing to hold a substantive visa, the applicant claimed the circumstances were beyond his control because he lost his job and he did not have any money to get his passport renewed. He said he used to work in construction but then lost the job. He said he is currently working part time in hospitality at an establishment called The Local Shack. He said he started work there about January 2016. He said he has a brother in Dublin and that brother sent the applicant some money so that he could go to Sydney to renew his passport.
Ms Burton said she was helping the applicant financially but she had her own mortgage payments to make and was therefore limited in the extent to which she could assist. She said there was also some delay in the applicant’s brother in Dublin sending the applicant money.
When asked to submit what, if any, relevant compelling circumstances exist in his case, the applicant replied by saying that he is in a relationship and that he loves his partner and that he wants to start a family with her. He said he is sorry for his visa expiring. He also said that he wants to give Ms Burton support. He said he has learned a lot from this process.
The visa applicant submitted to the Tribunal that he could not take Ms Burton to Pakistan. Ms Burton then said that she would not go back to New Zealand with the applicant. She said there are no jobs in New Zealand, and besides, she has purchased a house in Western Australia.
In relation to compelling circumstances, Ms Burton told the Tribunal that the applicant is part of her family. She said her nieces and nephews adore the applicant and they have a close network of family and friends. She added that the applicant has nothing to go back to in Pakistan. The applicant told the Tribunal that he is from Sind province in Pakistan. His parents passed away when he was 17 years of age. He has one brother in Dublin and 6 brothers in Pakistan.
On the question of compliance with visa conditions, the applicant submitted that he completed a carpentry course and completed Certificate III qualifications in carpentry with Silver Trowel Trade Training Pty Ltd. He said he also completed an Information Technology course while on a student visa in Sydney. He said he completed that and that his attendance was good. He said his attendance was in the order of 90%-95%.
Ms Burton said that they booked their marriage four weeks before it took place. She said they telephoned the registry 6 weeks before the planned wedding date because they knew they had to give 4 weeks’ notice. She said there was no available booking until 1 October 2015. Ms Burton concluded by saying she believes the applicant deserves to stay in Australia.
The applicant told the Tribunal that he lodged his student visa application on 19 September 2015. That application was refused on 19 November 2015. He said that he therefore thought he held a student visa work permit allowing him to work up to 20 hours per week.
The applicant told the Tribunal that he is still waiting on a separate application for review made to the Tribunal in respect of the delegate’s decision to refuse a student visa. That refusal was where the delegate refused to grant the student visa because the applicant failed to submit the prescribed evidence to show the attainment of the necessary IELTS score.
The applicant concluded by saying that he has spent the last 6 years in Australia. He said he has paid taxes here. He said that Australia is his home.
The Tribunal drew the applicant’s attention to the Department’s records, and in particular to a Movement Details report where it shows that Condition 8101 (no work) applies in respect of a Subclass 030 Bridging visa granted to him on 10 September 2015. It expressed its concern that if this information were correct, then it would appear that he has not had work rights since 10 September 2015 and that any work performed in Australia since then, including his present employment with The Local Shack, would appear to be in breach of the relevant applicable visa condition 8101.
As the Movement Details report referred to in the preceding paragraph was dated 27 May 2016, the Tribunal adjourned the hearing to enable it to obtain a current report to confirm whether the no work Condition 8101 still applied. During the adjournment, a current Movement Details report dated 8 July 2016 was obtained. This report shows the same ‘no work’ visa condition applicable to the applicant’s Bridging subclass 030 visa. Upon resuming the hearing, the Tribunal put this information to the applicant. It invited him to liaise with the Department about this after the hearing and to provide comment in writing back to the Tribunal after the hearing.
Ms Burton assured the Tribunal that she and the applicant would immediately attend the offices of the Department to sort out the work rights issue.
On 8 July 2016, the Tribunal received an email from the applicant. In this, he claims that he lodged his student visa application on 10 September 2015 and was granted a Bridging visa A, 2 days before the expiry of the applicant’s old student visa. The applicant also writes:
I would also like to add to my statement on how my passport was expired. I miss read my years 2015 as 2016. I was also under the understanding that i was all booked in for my IELTS test on the 1st August 2015 and payment was taken from my account on 27th July 2015 with confirmation test all paid for. To then receive a call on 31st July 2015 to say they needed valid passport and then realised i had miss read the years and called my brother to ask for money to help with costs for me to get to sydney to update my passport. As my brother is in Ireland this took a few weeks to reach my account which i then had to wait for passport to arrive also. I have made a huge mistake have learnt a life lesson from this and im truly sorry.
On 8 July 2016, the Tribunal received a letter from the applicant’s migration agent in which it is stated the applicant attended the Department on 8 July 2016 “to validate my client’s work’s (sic.) conditions”. The letter goes on to state the applicant currently holds a Bridging visa A and that “His bridging visa C (with no work condition) currently sitting behind his current BVA and it will not take effect once the Department of Immigration and Border Protection has finalise (sic.) his lodged Student Visa.” The letter also states that the applicant’s case officer confirmed that the applicant can currently work for 20 hours a week.
On 11 July 2016, the Tribunal received a copy of an email from PIBT indicating that the applicant has a booking to undertake an IELTS test on Saturday, 1 August 2015 at the Edith Cowan University Joondalup Campus.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the applicant satisfies the criteria in Item 3004 of Schedule 3 to the Regulations for the purposes of cl.416.213(b)(ii) of Schedule 2 to the Regulations.
The relevant law in this case requires the Tribunal be satisfied that the applicant meets the requirements in criterion 3004. This is a requirement as a result of the operation of cl.461.213 of Schedule 2 to the Regulations which relevantly provides:
461.213
[461.213] If the application is made in Australia:
(a) at the time of application, the applicant held a substantive temporary visa other than:
(i) a Subclass 403 (Temporary Work (International Relations)) visa in the Domestic Worker (Diplomatic or Consular) stream; or
(ii) a Subclass 426 (Domestic Worker (Temporary) — Diplomatic or Consular) visa; or
(b) if the applicant did not hold a substantive visa at that time:
(i) the last substantive temporary visa held by the applicant was not a visa mentioned in paragraph (a); and
(ii) the applicant satisfies Schedule 3 criteria 3002, 3003, 3004 and 3005.
In the circumstances of this case, the applicant’s last substantive visa, a Student TU Subclass 572 visa, ceased on 12 September 2015. Therefore, at the time of application for the Subclass 461 visa, that is on 9 October 2015, the applicant did not hold a substantive visa. At that time, the applicant in fact held a Bridging Subclass 010 visa. Therefore, by the operation of cl.461.213(b)(ii) of Schedule 2, the applicant is required to satisfy, amongst other things, Schedule 3 criterion 3004.
Criterion 3004 of Schedule 3 to the Regulations provides:
3004
[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.
With respect to paragraph 3004(f), the Tribunal must be satisfied that 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. As previously stated, and not disputed by the applicant, the last day the applicant held the substantive Subclass 572 visa was on 12/09/2015. He applied for a Subclass 461 visa for which the relevant primary criteria which is to be met at the time of application is as follows:
461.2 Primary criteria
Note    All applicants must meet the primary criteria.
461.21 Criteria to be satisfied at time of application
461.211
[461.211]   The applicant is not a New Zealand citizen.
461.212
[461.212] (1) The applicant meets the requirements of subclause (2), (3) or (4).
[461.212] (2) An applicant meets the requirements of this subclause if the applicant is a member of the family unit of:
(a) a person who is in Australia as the holder of a Subclass 444 (Special Category) visa; or
(b) a person who:
(i) is outside Australia; and
(ii) will be accompanying the applicant to Australia; and
(iii) will, on entry, be the holder of a special category visa.
[s5 of the Migration Act defines enter, enter Australia, entered, and entry , leave Australia and remain in Australia - see also s4 (object of the Act) and s6 (effect of limited meaning of certain expressions) - LEGEND note]
[461.212] (3)       An applicant meets the requirements of this subclause if the applicant:
(a)      either:
(i)      is in Australia as the holder of a Subclass 461 (New Zealand Citizen Family Relationship (Temporary)) visa; or
(ii)      is not the holder of a substantive visa and the last substantive visa held by the applicant was a Subclass 461 visa; and
(b)      is no longer a member of the family unit of the person in relation to whom the applicant was granted a Subclass 461 visa; and
(c)       has not become a member of the family unit of another person (whether or not the applicant is still a member of the family unit of that other person).
[461.212] (4)       An applicant meets the requirements of this subclause if the applicant:
(a)      is outside Australia; and
(b)      either:
(i) the applicant was lawfully present in Australia as the holder of a Subclass 461 visa for a period of, or periods that total, not less than 2 years in the period of 5 years immediately before the application for the visa; or
(ii) the Minister is satisfied that the applicant:
(A) has substantial business, cultural, employment or personal ties with Australia which are of benefit to Australia; and
(B) has not been absent from Australia for a continuous period of 5 years or more immediately before the application for the visa, unless there are compelling reasons for the absence; and
(c)      on last departure from Australia was a holder of a Subclass 461 visa; and
(d)      is no longer a member of the family unit of the person in relation to whom the applicant was granted a Subclass 461 visa; and
(e)      has not become a member of the family unit of another person (whether or not the applicant is still a member of the family unit of that other person).
[s5 of the Migration Act defines enter, enter Australia, entered, and entry , leave Australia and remain in Australia - see also s4 (object of the Act) and s6 (effect of limited meaning of certain expressions) - LEGEND note]
Subsection 5(1) of the Act provides ‘member of the family unit’ of a person has the meaning given by the regulations made for the purposes of this definition. Regulation 1.03 provides ‘member of the family unit’ has the meaning set out in reg 1.12 which relevantly and for the purposes of the present application defines the term as follows:
(1) For the definition of member of the family unit in subsection 5(1) of the Act, and subject to subregulations (2), (2A), (6) and (7), a person is a member of the family unit of another person (in this subregulation called the family head) if the person is:
(a) a spouse or de facto partner of the family head; or
(b) a dependent child of the family head or of a spouse or de facto partner of the family head; or
(c) a dependent child of a dependent child of the family head or of a spouse or de facto partner of the family head; or
(e) a relative of the family head or of a spouse or de facto partner of the family head who:
(i) does not have a spouse or de facto partner; and
(ii) is usually resident in the family head's household; and
(iii) is dependent on the family head.
The term ‘defacto partner’ is defined in s.5CB of the Act as follows:
De facto partners
(1) For the purposes of this Act, a person is the de facto partner of another person (whether of the same sex or a different sex) if, under subsection (2), the person is in a de facto relationship with the other person.
De facto relationship
(2) For the purposes of subsection (1), a person is in a de facto relationship with another person if they are not in a married relationship (for the purposes of section 5F) with each other but:
(a) they have a mutual commitment to a shared life to the exclusion of all others; and
(b) the relationship between them is genuine and continuing; and
(c) they:
(i) live together; or
(ii) do not live separately and apart on a permanent basis; and
(d) they are not related by family (see subsection (4)).
(3) The regulations may make provision in relation to the determination of whether one or more of the conditions in paragraphs (2)(a), (b), (c) and (d) exist. The regulations may make different provision in relation to the determination for different purposes whether one or more of those conditions exist.

The evidence given by the applicant is that he met Ms Burton online in January 2015 and that they then met physically a few days after that. The Tribunal accepts that evidence. The evidence which the Tribunal also accepts is that the applicant and Ms Burton formed a relationship which progressed to the point where they married on 1 October 2015. The Tribunal considered and accepts the written evidence of Kathy Burton and Annette Ellis who declare as to the development and existence of a relationship between the applicant and Ms Burton. The Tribunal accepts the Marriage Certificate which they submitted to the Department is reliable proof that their marriage was registered on 1 October 2015. Their evidence is also that until their marriage on that date, they lived in separate accommodation. The applicant lived in his rented accommodation, and Mr Burton lived in the home which she purchased. The Tribunal finds on the evidence before it that at the time the applicant last held a substantive visa, they did not live together and they lived separately and apart on a permanent basis and therefore did not satisfy s.5CB(2)(c) of the Act. Based on the evidence before the Tribunal, and having regard to the definition of ‘member of the family unit’ in r.1.12(1) above, and the definition of ‘de facto partner’ in s.5CB of the Act, the Tribunal finds that at the time when the applicant’s last held a substantive visa, that is on 12 September 2015, the applicant was not a member of the family unit of Ms Burton. Further, the Tribunal finds that at the time when the applicant last held his substantive visa, that is on 12 September 2015, the applicant was not the defacto partner of Ms Burton.
It follows from the preceding paragraph that the Tribunal finds that the applicant would not 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 he last held his last substantive visa. For these reasons, the Tribunal finds the applicant does not satisfy Schedule 3 criterion 3004(f)(i)
It follows from the Tribunal’s findings in the preceding paragraph, that the applicant therefore fails to satisfy the requirement prescribed in Schedule 3 criterion 3004(f) and therefore fails to satisfy 3004 generally. Consequently, the applicant cannot satisfy cl.416.213(b)(ii).
As all the constituent elements of Schedule 3 criterion 3004 must be met, the failure to meet 3004(f) means the applicant fails to meet 3004 generally. That is the case even if the applicant were to satisfy the other elements of 3004. It is therefore not necessary for the Tribunal consider the other elements of 3004. Nor is it necessary for this Tribunal to consider the applicant’s submissions on the question of his refused student visa, his efforts to secure the relevant IELTS results, and whether he has work rights or not. The review of the decision by the delegate to refuse the student visa is a separate matter and will be determined in due course by the Tribunal constituted for that matter.
In the circumstances of this case, and for the reasons set out above, the Tribunal finds the applicant fails to meet a mandatory requirement, namely cl.461.213 of Schedule 2 to the Regulations which must be satisfied at the time of application for the visa application which is the subject of this review. The Tribunal must therefore affirm the decision under review.
DECISION
The Tribunal affirms the decision not to grant the applicant a New Zealand Citizen (Family Relationship) (Temporary) (Class UP) Subclass 461 visa.
Tony Caravella
Member

[2016] AATA 4180

1 August 2016

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction