1605532 (Migration)

[2016] AATA 4101

1605532 (Migration) [2016] AATA 4101 (13 July 2016)

CORRIGENDUM

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Neal Ciaran Gildea

CASE NUMBER:  1605532

DIBP REFERENCE(S):  BCC2016/509726

MEMBER:Miriam Holmes

DATE OF DECISION:  13 July 2016

DATE CORRIGENDUM

SIGNED:25 May 2017

PLACE OF DECISION:  Melbourne

AMENDMENT:  The following corrections are made to the decision:

Replace paragraph 2 with the following paragraph;

2.The applicant applied for the visa on 2 February 2016. The delegate refused to grant the visa as the delegate was not satisfied that the applicant met cl.461.213 as the applicant did not meet the requirements in cl.3004.

In the decision record and statement of decision and reasons replace the phrase “PIC 3004” wherever appearing with “cl.3004.”

Miriam Holmes
Senior Member

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Neal Ciaran Gildea

CASE NUMBER:  1605532

DIBP REFERENCE(S):  BCC2016/509726

MEMBER:Miriam Holmes

DATE:13 July 2016

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a New Zealand Citizen (Family Relationship) (Temporary) (Class UP) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 461 New Zealand Citizen (Family Relationship) (Temporary) (Class UP) visa:

·That the applicant meets the requirement in PIC 3004 for the purposes of cl.461.213 of Schedule 2 to the Regulations

Statement made on 13 July 2016 at 2:32pm

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 April 2016 to refuse to grant the 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 2 February 2016. The delegate refused to grant the visa as the delegate was not satisfied that the applicant met cl.461.213 as the applicant did not meet the requirements in Public Interest Criterion 3004, hereafter referred to as PIC 3004.

3. The applicant appeared before the Tribunal on 13 July 2016 to give evidence and present arguments.

4. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The Act and the Regulations set out the qualification criteria that a person must establish at the time of the visa application and at the time of decision to be eligible to be granted a visa. A person who applies for a New Zealand Citizen (Family Relationship) (Temporary) (Class UP) visa must establish that they meet the requirements set out in Part 461 in Schedule 2 to the Regulations. The central issue in dispute in this case is whether the applicant meets the requirements in cl.461.213 as at the time of the visa application

6. As at the time of application the requirements in cl.461.213 were as follows:

   [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.

7. The Tribunal finds based on the oral evidence and the delegate’s decision record that as at the date of visa application on 2 February 2016 the applicant was not the holder of a substantive visa and therefore cl.461.213(a) does not apply but clause cl.461.213(b) does apply. 

8. The Tribunal is satisfied on the evidence available that the last substantive visa held by the applicant was a subclass 461 visa and therefore cl.461.213(b)(i) is met.

9. As noted above, the issue in this case is whether the applicant meets PIC 3004 for the purposes of cl.461.213(b)(ii).   

10. The Tribunal has attached a copy of PIC 3004 to this decision. The Tribunal considered each of the elements of PIC 3004 as follows.

11. Firstly, the Tribunal considered whether the applicant  ceased to hold a substantive or criminal justice visa on or after 1 September 1994 (PIC 3004(a) or entered Australia unlawfully on or after 1 September 1994 and has not subsequently been granted a substantive visa (PIC 3004(b)). The Tribunal made the following findings regarding the applicant’s migration history based on the delegate’s decision record and the applicant’s oral evidence.

12. On 1 July 2011 the applicant was granted a New Zealand citizen family relationship (temporary) (class UP) subclass 461 visa valid to 1 February 2016 on the basis of his relationship with Mrs Gildea, a New Zealand citizen who was in Australia and holding a subclass 444 visa. On 23 December 2015 the applicant departed Australia as the holder of a New Zealand citizen family relationship subclass 461 visa valid to 1 February 2016. On 30 December 2016 the applicant returned to Australia on his subclass 461 visa. On 1 February 2016 the applicant’s New Zealand citizen family relationship (temporary) (class UC) subclass 461 visa ceased. On 2 February 2016 the applicant lodged an application for a New Zealand citizen family relationship (temporary) (class you UP) subclass 461 visa on the basis of his continuing spouse relationship with Mrs Gildea who continued to be a New Zealand citizen in Australia holding a subclass 444 visa.

13. Therefore the Tribunal finds that the applicant ceased to hold a substantive visa on or after 1 September 1994 and therefore meets the requirement in PIC 3004 (a). The Tribunal is satisfied that PIC 3004 (b) is not applicable.

14. The Tribunal then had regard to whether it is satisfied that the applicant is not the holder of a substantive visa because of factors beyond the applicant's control (PIC 3004(c)).

15. In relation to PIC 3004(c), the Tribunal notes that the delegate had regard to the policy as set out in the Procedure Advice Manual and was not satisfied that the applicant was not the holder of a substantive visa because of factors beyond the applicant’s control. The delegate did not accept that the breakdown in communication and work and travel commitments of the applicant were circumstances beyond his control such that they caused him to lodge his visa application for a subclass 461 visa after his substantive visa had ceased.

16. The Tribunal had regard to the policy and notes that it states in part as follows:

    14 Applicant’s circumstances must have been beyond their control

    14.1 Two separate considerations

    Criteria 3003(c) and 3004(c) require the decision-maker to be satisfied that the applicant became an illegal entrant or a person without a substantive visa because of factors beyond the applicant’s control.

    Two requirements must be satisfied:

    • there must be factors that caused the applicant to become an illegal entrant or a person without a substantive visa and
    • those factors must have been beyond the applicant’s control.

    The element of causation is important. It is not sufficient that factors beyond the control of the applicant existed. Those factors must have caused the applicant to become an illegal entrant or a person without a substantive visa.

    14.2 Meaning of ‘beyond the applicant’s control’

    The phrase ‘factors beyond the applicant’s control’ is to be given its natural meaning and considered against all relevant circumstances of the applicant.

    The test is whether the applicant became a person to whom 3003 or 3004 applies because of circumstances that were “external” to the applicant and over which they had no control.

    Some circumstances may clearly meet the test, for example where a serious accident or illness renders the applicant incapable of making an application.

    Other situations will be more difficult to assess, for example where an applicant claims to have:

    • been unaware that they were an illegal entrant or without a substantive visa or
    • misunderstood the period during which their visa was in effect or
    • misunderstood the conditions attached to their visa.

    Claims by an applicant that they were unaware they were an illegal entrant, or without a substantive visa, should be considered on a case by case basis. The mere fact that an applicant makes such a claim would not, on its own, constitute a circumstance beyond their control. In some instances, an applicant’s lack of awareness may, however, be attributable to a circumstance over which the applicant had no control, for example, when the applicant’s visa was not correctly evidenced and the visa ceased on a date earlier than the date specified on the visa label.

    Similarly, claimed misunderstandings relating to when a visa is in effect or to the conditions attached to a visa should be considered on a case by case basis. It is reasonable to assume that a visa holder is aware of the period covered by the visa and the conditions attached to the visa unless there is evidence to the contrary. An example of when there would be evidence to the contrary is when file records indicate that incorrect advice was given by the department.

    14.3 Claims of incorrect departmental advice

    ….

    14.4 Invalid applications

    ...

    14.5 Migration agent inaction

    Cases arise where an applicant advises that their agent or lawyer was responsible for not making the application prior to their substantive visa ceasing.

    Under law, the actions of the applicant’s agent or lawyer are taken to be those of the applicant. Failure by an agent or lawyer to act in their client’s best interests may be grounds for the client to take legal action, but would not normally be grounds for finding that the applicant became an illegal entrant, or a person in Australia without a substantive visa, due to factors beyond their control. Again, these types of cases need to be considered on their facts. If a migration agent has been deregistered, it may be reasonable to find that negligent action by the agent that has affected the applicant was a circumstance beyond the applicant’s control.

17. The Tribunal observes that whilst it may be guided by policy it is not bound to follow it.[1] The Courts have held that the PAM3 guidelines constitute no more than an administrative advisory guide to decision makers in relation to the application of the Act and Regulations and that they are incapable of being elevated into legally necessary or relevant considerations. The Tribunal notes there is judicial authority to the effect that the policy guidelines in PAM3 cannot go beyond the wording of the legislation, even where they are favourable to an applicant.[2]

    [1]     See Brennan, J. in Re Drake (No. 2) (1978-1980) 2 ALD 634

    [2]     See Chow v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1429, Lobo v Minister for Immigration & Multicultural & Indigenous Affairs[2003] FCAFC 168;

18. In assessing this case the Tribunal notes that the visa application was lodged only one day late. The applicant’s subclass 461 visa was granted in 2011 and was in force until 1 February 2016 and the applicant completed the application form on 1 February 2016 and sent it by courier with the relevant documents on 1 February 2016. The visa application was received by the Department on 2 February 2016, and therefore his visa application was made the next day on 2 February 2016. This is not a case of an inordinate delay for any extended period, and the reasons for the delay in lodging the visa should be assessed in this context.

19. The applicant states there are a number of circumstances which combined to result in the one-day delay in submitting his visa application. Firstly, there was a breakdown in communication between himself, his employer and his migration agent. The applicant states that originally when his family moved to Australia from New Zealand in 2011 it was because he had been promoted by his employer, DHL, and transferred to Australia take up the more senior role of Branch Manager in Canberra, overseeing a service centre and two mailing centres at DFAT and ANU.  The visa application at that time was coordinated by the migration agent engaged by his employer. The migration agent was based in Australia and made all the arrangements for the visa and recommended he apply for a subclass 461 visa.

20. In September /October 2015, after speaking with HR staff at DHL about his visa, the HR staff referred him to the migration agent that had been engaged the purposes of granting the first sc461 visa.  The applicant spoke with the migration agent about his migration options after the expiry of his sc 461 visa. He discussed in detail with the agent the possibility of applying for a permanent visa, what the costs and advantages in holding a permanent visa would be. The agent explained to him the benefits of a permanent visa in relation to Medicare benefits and HECS benefits. He subsequently spoke with the HR  Department of DHL about the upcoming expiry of his substantive 461 visa and whether they would support a permanent visa application and whether they would meet the costs of such a visa application. The HR staff did not give him a response immediately but indicated they would need to consider the issue and get back to him.

21. At around the same time the applicant contact the Department of Immigration and requested advice in relation to applying for another subclass 461 visa. He wanted to understand from the Department the processing timelines for a sc461 visa and when he would be best to make a visa application. In making this inquiry the applicant was mindful that his visa was due to expire in February and that he planned to return to New Zealand for Christmas and his workplace had foreshadowed an overseas training opportunity in January 2016. The applicant was advised by the immigration helpdesk to wait until January 2016 to apply for a renewal of his subclass 461 visa in his particular circumstances given that he was due to travel in November and December 2015 and his passport may be required for the visa application process.

22. In late November 2015 the HR Department advised the applicant that the employer would not support and meet the costs associated with a permanent visa application.

23. The applicant then discussed with his wife about whether they would pay for the costs associated with a permanent visa application and whether there was any benefits in pursuing that visa option for him at the that time. After various discussions they decided that he would pursue the sc461 visa option. However, it was December 2015 and his wife and children were travelling to New Zealand mid December and he later travelled to New Zealand on 23 December 2015 to spend Christmas with his family and he needed his passport.  

24. He spoke with the HR Department about whether his employer would meet the costs associated with the sc461 visa application. The HR Department said they would get back to him. At this stage, the applicant understood that the migration agent would be responsible for making the visa application on his behalf, as had occurred in relation to the previous visa application and so he took no action to progress making a visa application and awaited the advice of his employer.

25. During January 2016 the applicant was carrying a heavy workload and did not have any response from his employer regarding the payment of the costs. The employer had indicated that the applicant would travel overseas to Singapore in late January to attend a course which commenced at the end of January 2016. This was to enhance the applicant’s career development. However, over the course of the month, with other developments at work, he did not attend the overseas training. The applicant instead travelled to Sydney for a week in January, as there had been a major budget issue, pertaining to the operations of a regional office, which had only just come to light and had major budget ramifications for the business operations. As the applicant was the sales manager for Victoria, and a senior manager, he was involved in those budget discussions. This trip to Sydney was required by his employer and was outside of the applicant’s control. At the same time, the applicant was involved in recruitment and working with a new change in various management positions in the business. Again these substantial changes in his workplace were matters outside his control. At the end of the month in January 2016 the applicant was required to prepare the end of month reports for his employer which he states are very involved and which required substantial work, again these reporting requirements were outside the applicant’s control. 

26. The applicant also explained that he was also dealing with a demanding private matter in the period October 2015 – January 2016. The applicant and his wife purchased new land in early 2015 and in August 2015 they engaged a second builder (after problems with the first builder) to build a new family home. The construction commenced and throughout this period he was regularly liaising with the builder about the home construction. This construction of the home continued in January 2016 – and he was trying to manage that as well as his work commitments. The Tribunal accepts that the consultation and communication with the builder was an ongoing matter and outside the control of the applicant, as he was responding to the builder and others regarding the construction requirements.

27. By the end of January 2016 the applicant had not received any advice from the HR staff about whether the employer would meet the costs of the sc461 visa and he had not any contact from the agent.  On 1 February 2016 the applicant realised the visa was about to expire and that he needed to take action urgently. He therefore completed a visa application on 1 February 2016 and arranged an urgent courier to submit the visa application and accompanying paperwork the following day on 2 February 2016.

28. After having regard to all of the circumstances above, the Tribunal is satisfied that the applicant is not the holder of a substantive visa because of factors beyond the applicant's control. In reaching this conclusion the Tribunal took into consideration that the visa application was submitted one day late. In the preceding period the applicant was relying on his employer to arrange and meet the costs of his visa application as had occurred previously. As at January 2016, the HR staff did not respond to his request for advice and the agent did not take any action to progress the visa application, these were matters outside his control. Understandably, given his previous experience in the circumstances, the applicant considered that his employer would meet the costs and arrange the visa application. In relation to the timing of the visa application being made, the applicant relied on the advice from the Department that he should apply in January 2016 and given his trip to New Zealand for family reasons, the Tribunal considers it was appropriate to accept this advice. However, over January 2016 the applicant was faced with various challenges form work and his builder which were outside his control. He was required to unexpectedly travel to Sydney to deal with significant budgetary issues, he was also recruiting staff, working with new managers and had end of month reporting requirements. The Tribunal accepts that his workload was significant in this period as a State Manager and that the work demands were matters outside of his control and were work requirements which he had to comply with. In addition, he was liaising with his builder regarding the new family home, and the Tribunal accepts that the process of building a new home is a very stressful period requiring substantial time and decision-making and that he had to respond to the builder’s enquiries as needed by the builder, which was outside his control and involves decision-making related to substantial sums of money. Therefore the Tribunal is satisfied that the requirement in PIC 3004(c) is met.

1. The next issue the Tribunal considered is whether there are compelling reasons for granting the visa (PIC 3004(d)).  The Tribunal is satisfied that there are compelling reasons for the grant of the visa and the requirement in PIC 3004(d) is met. The applicant, his wife and his two young children have been settled in Australia since 2011. The applicant’s eldest son attends primary school in Australia. The applicant’s wife is expecting their third child.  The applicant’s wife and children have visas to remain in Australia and wish to continue to reside in Australia. Further the applicant has been employed in Australia since 2011 and is currently a full-time employee of DHL in a senior position. The Tribunal considers there are compelling reasons to enable the applicant to remain in Australia to stay with his family and to financially support his family who are now settled in Australia.

2. There is no evidence before the Tribunal that the applicant has breached any previous or existing conditions imposed on the applicant’s previous subclass 461 visa or the bridging visa granted on 3 February 2016. The applicant has given evidence that he has complied fully with the conditions of his previous subclass 461 visa and his current bridging visa. On the evidence available, the Tribunal is satisfied that the applicant has complied substantially with the conditions that apply or applied to the last of substantive visa 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 any subsequent bridging visa. The Tribunal is satisfied that the requirement in PIC 3004(e) is met.

3. The Tribunal is satisfied on the evidence available 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.  In reaching this conclusion, the Tribunal took into consideration the delegate’s assessment that the applicant meets the requirement in PIC 3002, 3003 and 3005, that the applicant is the spouse of the holder of a person with a subclass 444 visa who is in Australia at the time of application and has given evidence that he continues to be the spouse of this person, that he intends to comply with conditions as set out in his submission to the Department received on 16 March 2016, that the applicant has previously complied with the conditions that applied to the last substantive visa and subsequent bridging visa and he has previously satisfied the other public interest criteria and there is no evidence before the Tribunal to indicate there has been any relevant change in relation to these criteria. The Tribunal notes that Mrs Gildea attended the Tribunal hearing in support of her husband. Therefore the Tribunal is satisfied on the evidence available that the applicant meets the requirements in PIC 3004(f).   

4. The Tribunal is satisfied based on the submissions made by the applicant to the Department and received on 16 March 2016 and the applicant’s evidence to the Tribunal that the applicant intends to comply with any conditions subject to which the visa is granted. Therefore, the Tribunal is satisfied that PIC 3004(g) is met.

5. In relation to the last requirement in PIC 3004(h) that  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. The Tribunal finds this requirement is met as the applicant was not the holder of a transitional (temporary) visa with the relevant restriction.

6. The Tribunal is satisfied that the requirements in PIC 3004 are met.

7. The appropriate course is to remit the visa application for the Minister’s delegate to consider whether the applicant meets the remaining criteria to be eligible for the grant of the visa.

   DECISION

8. The Tribunal remits the application for a New Zealand Citizen (Family Relationship) (Temporary) (Class UP) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 461 New Zealand Citizen (Family Relationship) (Temporary) (Class UP) visa:

   -    That the applicant meets the requirement in PIC 3004 for the purposes of cl.461.213 of Schedule 2 to the Regulations.

   Miriam Holmes
   Senior Member

   
   

   Attachment

   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.