2219079 (Migration)

[2023] AATA 1348

2219079 (Migration) [2023] AATA 1348 (6 April 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mrs Joniada Murdocca

CASE NUMBER:  2219079

MEMBER:Mireya Hyland

DATE:6 April 2023

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the visa applicant a New Zealand Citizen (Family Relationship) (Temporary) (Class UP) Subclass 461 visa.

Statement made on 06 April 2023 at 1:56pm

CATCHWORDS
MIGRATION – New Zealand Citizen (Family Relationship) (Temporary) (Class UP) visa – Subclass 461 (New Zealand Citizen Family Relationship (Temporary)) – consent to decision without hearing – member of the family unit of a person other than an eligible New Zealand citizen – sponsor an eligible New Zealand citizen – applicant not holder of specified visa and not outside Australia at time of application – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 32, 65, 360)
Migration Regulations 1994 (Cth), rr 1.03, 5.15A; Schedule 2, cl 461.212
Social Security Act 1991 (Cth), s 7(2A)

CASE
Hasran v MIAC [2010] FCAFC 40

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

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 Home Affairs on 13 December 2022 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 11 July 2022 on the basis of her relationship with [her sponsor]. At the time of application, Class UP contained one subclass: 461 (New Zealand Citizen Family Relationship (Temporary)). The criteria for the grant of a Subclass 461 visa are set out in Part 461 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The delegate refused to grant the visa on the basis that [the visa applicant] does not satisfy the requirements in cl.461.212 of the Regulations because he was satisfied that [the sponsor] is an eligible New Zealand citizen. [The visa applicant] lodged an application for review of the decision with the Tribunal on 23 December 2022 and the matter was constituted to the Tribunal on 27 March 2023. The delegate’s decision was provided to the Tribunal by [the visa applicant] with her review application.

3. [The visa applicant] is represented in relation to the review by her solicitor, Mrs Joniada Murdocca.

4. On 17 March 2023, the Tribunal invited [the visa applicant] to appear before it to provide evidence and present arguments on the issues in her case. On 3 April 2023, Mrs Murdocca sent the Tribunal an email stating ‘I have instructions to the effect that the Applicant for review seeks for the matter to be determined “on the papers”.’ The Tribunal finds that this is consent by [the visa applicant] to the Tribunal deciding the review without a hearing. The Tribunal is satisfied that the necessary consent has been given under s.360(2)(b) of the Act and that, pursuant to s.360(3), [the visa applicant] is no longer entitled to appear before it to give evidence and present arguments relating to the issues in her case.[1] This matter has, therefore, been determined on the evidence available to the Tribunal, including information provided by [the visa applicant] to the Department of Home Affairs, that is in the delegate’s decision, and given to the Tribunal.

   [1] Hasran v MIAC [2010] FCAFC 40.

5. The issues in the present case are whether [the visa applicant] meets cl.461.212 and, in particular, whether [the sponsor] is an Eligible New Zealand Citizen. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. [The visa applicant] was born on [Date] and is [Age] years of age. She is a citizen of [Country]. [In] July 2022, she entered Australia as the holder of a Visitor (Class FA) Subclass 600 visa granted on 21 March 2022 and which ceased to be in effect on 3 October 2022. [The sponsor] was born on [Date] and is [Age] years of age. He is a citizen of New Zealand. He first entered Australia as the holder of a Special Category (Temporary) (Class TY) Subclass 444 visa [in] April 1996. He remains the holder of a Subclass 444 visa. On 19 May 2022, [the visa applicant] married [the sponsor] and, therefore, claims that at the time of the application on 11 July 2022 she was a member of his family unit.

7. It is a criterion for the grant of the visa that [the visa applicant] meet cl.461.212 at the time of the application. It states:

   (1)The applicant meets the requirements of subclause (2), (3) or (4).

   (2)An applicant meets the requirements of this subclause if the applicant is a member of the family unit of:

   (a)a person, other than an eligible New Zealand citizen, who is in Australia as the holder of a Subclass 444 (Special Category) visa; or

   (b)a person, other than an eligible New Zealand citizen, 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.

   (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).

   (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).

   For applications made on or after 1 July 2017, the definition of eligible New Zealand citizen is set out in r.1.03 of the Regulations and means ‘a New Zealand citizen who is a protected SCV holder within the meaning of Section 7 of the Social Security Act 1991.’ Relevantly, s.7(2A) of the Social Security Act 1991 (Cth) defines a protected SCV holder as a person who was in Australia on 26 February 2001 and was a special category visa holder on that day. What constitutes a special category visa is set out in s.32 of the Act and r.5.15A.

8. An applicant meets the requirements of subclause (2) of cl.461.212 if, at the time of application, he or she was a member of the family unit of a person, other than an eligible New Zealand citizen, who was in Australia as the holder of a Subclass 444 visa. [The sponsor] is a person who was in Australia as the holder of a Subclass 444 visa on 11 July 2022. However, he meets the requirements in s.7(2A) of the Social Security Act 1991 (Cth) for a person who is a protected SCV holder. On 16 November 1999, [the sponsor] was granted a special category visa and entered Australia. He did not depart Australia until 2 February 2003. He is a person who was in Australia on 26 February 2001 and was a special category visa holder on that day. Therefore, he is, and was at the time of application, an eligible New Zealand citizen as defined in the Regulations. Since [the visa applicant] claims that at the time of application she was a member of the family unit of a person who is, and was, an eligible New Zealand citizen she does not satisfy either of the criteria in cl.461.212(2).

9. An applicant meets the requirements of subclause (3) if, at the time of application, he or she was in Australia as the holder of a Subclass 461 visa or was not the holder of a substantive visa and the last substantive visa held was a Subclass 461 visa. [The visa applicant] was granted a Subclass 600 visa on 21 March 2022 which ceased on 3 October 2022. Therefore, on 11 July 2022 she was not the holder of a Subclass 461 visa but was the holder of a substantive visa. Consequently, she does not satisfy cl.461.212(3).

10. An applicant meets the requirements of subclause (4) if he or she was outside Australia at the time of application. [The visa applicant] arrived in Australia on 3 July 2022 and did not depart Australia until 25 January 2023. Therefore, on 11 July 2022 she was in Australia and does not satisfy cl.461.212(4).

11. Given the above findings, [the visa applicant] does not satisfy any of the alternate subclauses in cl.461.212 of the Regulations. The Tribunal finds that the criteria for the grant of a Subclass 461 visa are not met.

12. Accordingly, the decision under review must be affirmed.

13. Neither [the visa applicant] nor Mrs Murdocca have requested that the Tribunal refer the case to the Department of Home Affairs for consideration by the Minister pursuant to s.351 (which gives the Minister a discretion to substitute for a decision of the Tribunal another decision that is more favourable to the applicant if the Minister thinks that it is in the public interest).

    DECISION

14. The Tribunal affirms the decision not to grant the visa applicant a New Zealand Citizen (Family Relationship) (Temporary) (Class UP) Subclass 461 visa.

    Mireya Hyland
    Member