2301525 (Migration)

[2023] AATA 2219

2301525 (Migration) [2023] AATA 2219 (28 June 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Ms Maria Jockel

CASE NUMBER:  2301525

MEMBER:Margie Bourke

DATE:28 June 2023

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 applicant meets the following criteria for a Subclass 461 New Zealand Citizen Family Relationship (Temporary) visa:

·Cl.461.213 of Schedule 2 to the Regulations.

Statement made on 28 June 2023 at 3:30pm

CATCHWORDS
MIGRATION – New Zealand Citizen (Family Relationship) (Temporary) (Class UP) visa – Subclass 461 (New Zealand Citizen Family Relationship (Temporary)) – not holder of substantive visa when application made – applied one day after previous visa ceased – factors beyond applicant’s control – serious untreated mental health condition and COVID pandemic and lockdowns – compelling reasons for grant of visa – significant reasons preventing applicant and husband from returning to home country – decision made without hearing necessary – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 360(2)(a)
Migration Regulations 1994 (Cth), Schedule 2, cl 461.213(b)(ii), Schedule 3, criterion 3004(c), (d)

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 20 January 2023 to refuse to grant the applicant a New Zealand Citizen (Family Relationship) (Temporary) (Class UP) visa under s.65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicant applied for the visa on 5 November 2021. The delegate refused to grant the visa as the applicant did not satisfy cl.461.213 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because the delegate found the applicant did not meet the requirements of Schedule 3004.

3. The Tribunal has considered the Department’s decision record dated 20 January 2023, the information available to the Department, and additional information provided to the Tribunal by the applicant including a submission dated 3 May 2023, medical report dated 6 April 2023, statutory declaration of the applicant dated 22 March 2023, statutory declaration of the applicant’s husband dated 22 March 2023 and other information in relation to maternal mental health during the global pandemic.

4. The Tribunal has determined that it can make a decision favourable to the applicant without proceeding to a hearing, based on the information available to it, pursuant to s.360(2)(a) of the Act.

5. The following are the written reasons that the Tribunal has concluded that the matter should be remitted back to the Department for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The main issue in this review is whether the visa applicant meets the requirements of Schedule 3004 for the purposes of cl.461.213. This subclause requires that if the application for the visa is made in Australia, (a) at the time of application, the applicant held a substantive temporary visa other than a subclass 403 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) (that is a subclass 403 visa); and (ii) the applicant satisfies Schedule 3 criteria 3002, 3003, 3004 and 3005.

7. The Tribunal is satisfied based on the information provided by the applicant and the information contained in the Department’s decision record, that the last substantive visa held by the applicant was a Subclass 461 New Zealand Citizen Family Relationship visa.

8. The Tribunal is satisfied that at the time of application for the visa which is the subject of this review, namely 5 November 2021, the applicant was not the holder of a substantive visa. The Tribunal is satisfied that the applicant’s last substantive visa, the subclass 461 visa, ceased on 4 November 2021, the day before the application for the visa was made.

9. The Tribunal is satisfied that the applicant does not meet the requirements of cl.461.213(a) as she was not told of a substantive visa at the time of application.

10. The Tribunal is satisfied that the applicant meets the requirements of cl.461.213(b)(i), as the last substantive visa held by the applicant was not a subclass 403 visa.

11. The requirements of cl.461.213(b)(ii) are that the applicant satisfies Schedule 3 criteria 3002, 3003, 3004 and 3005.

12. Schedule 3002: – requires that the application is validly made within 12 months after the relevant day (within the meaning of subclause 3001 (2)). The relevant day is the last day the applicant held a substantive visa, and the tribunal is satisfied the relevant day in this review is 4 November 2021. The Tribunal is satisfied that the application was validly made on 5 November 2021, that is the day after the relevant day and therefore was validly made within 12 months after the relevant day.

13. The Tribunal is therefore satisfied that the applicant meets the requirements of Schedule 3002.

14. Schedule 3003: – applies if (a) the applicant has not, on or after 1 September 1994 been the holder of a substantive visa and (b) the applicant was either (i) an illegal entrant; or (ii) the holder of an entry permit that was not valid beyond 31 August 1994. The Tribunal is satisfied that the applicant was the holder of a substantive visa after 1 September 1994, and was not an illegal entrant or the holder of an entry permit that was not valid beyond 31 August 1994.

15. The Tribunal is therefore satisfied that the requirements of Schedule 3003 do not apply to the applicant.

16. Schedule 3004: – requires that if the applicant satisfies subclauses (a) to (h) which the Tribunal will consider individually, in the following paragraphs.

17. Schedule 3004 requires that if the applicant either (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 visa; the Minister must be satisfied of the requirements of subclauses (c) through to (h). The Tribunal is satisfied that the applicant ceased to hold a substantive visa on 4 November 2021, and therefore the requirements of 3004(a) apply.

18. Schedule 3004 (c) requires that the applicant is not the holder of a substantive visa because of factors beyond the applicant’s control. The Tribunal is satisfied based on the evidence before it, including the medical report dated 6 April 2023 from [Dr A] that at the time of application the applicant was suffering from an untreated major depressive disorder, postpartum depression after the birth of her child born in [Month, Year] and unresolved grief after the death of her father in 2018. The Tribunal is also satisfied that the applicant’s capacity to lodge the application for the visa and provide the documents requested in support of the application prior to the expiry of her substantive visa on 4 November 2021 were impacted by the global pandemic, the extensive lockdown periods in Melbourne and the delays in processing provision of documents and in postal services. The Tribunal accepts that there is a connection based on studies in relation to maternal mental health during the pandemic, that the global pandemic directly affected the mental health of women with newborn babies (“Maternal mental health during a pandemic”, A rapid evidence review of Covid-19’s impact, Centre for Mental Health, The Tribunal is satisfied that the applicant was not the holder of a substantive visa at the time of application due to her untreated and serious mental health condition, and the impact of the global pandemic on the Melbourne community and provision of services. The Tribunal is satisfied that the applicant was not the holder of a substantive visa at the time of application because of factors beyond the applicant’s control. The Tribunal is satisfied that the applicant meets the requirements of Schedule 3004(c).

19. Schedule 3004 (d) requires that there are compelling reasons for the grant of the visa. The Tribunal is satisfied that there are compelling reasons for the grant of the visa, including the diagnosis that the applicant was suffering from an untreated major depressive disorder, including unresolved grief and postpartum depression, that the applicant is married with a young child, that the applicant has resided in Australia for 12 years since 2011, and that there are significant persecution reasons preventing the applicant and her husband from returning to their [home country]. The Tribunal is satisfied that the applicant meets the requirements of Schedule 3004(d).

20. Schedule 3004 (e) requires that 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 visa is 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. The Tribunal is satisfied that excluding the fact that the applicant’s last substantive visa ceased the day before she lodged the application for the visa which is the subject of this review, there is no evidence before the Tribunal that the applicant has not substantially complied with the conditions that applied to the last substantive visa she held, or any subsequent bridging visa. The Tribunal is satisfied that the applicant meets the requirements of Schedule 3004(e)(ii)(A) and (B).

21. Schedule 3004 (f) requires the applicant meets 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 the visa of the class applied for on the day when the applicant last entered Australia unlawfully. The requirements of paragraph (a) apply to the applicant, and the Tribunal is satisfied that the applicant would have been entitled to be granted a visa of the class applied for (Subclass 461 visa) if the applicant had applied for the visa on the day when the applicant last held a substantive visa, namely 4 November 2021. The Tribunal is satisfied that the applicant meets the requirements of Schedule 3004(f)(i).

22. Schedule 3004 (g) requires that the applicant intends to comply with any conditions subject to which the visa is granted. Based on the statutory declaration of the applicant, the Tribunal is satisfied that the applicant intends to comply with any conditions to which the visa would be subject. The Tribunal is satisfied that the applicant meets the requirements of Schedule 3004(g).

23. Schedule 3004 (h) requires 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 further entry permit, while the holder remained in Australia. The Tribunal is satisfied that the last visa held by the applicant was not a transitional (temporary) visa. Therefore the requirements of Schedule 3004(h) do not apply to the applicant.

24. For all the above reasons the Tribunal is satisfied that the applicant meets the requirements of Schedule 3004.

25. Schedule 3005: – requires that a visa or entry permit has not previously been granted to the applicant on the basis of satisfaction of any criteria set out in (a) this Schedule; or (b) Schedule 6 of the Migration (1993) Regulations; or (c) regulation 35AA or subregulation 42(1A) or (1C) of the Migration (1989) Regulations. There is no evidence before the Tribunal that the applicant has previously been granted a visa or entry permit on the basis of the satisfaction of the listed criteria.

26. The Tribunal is therefore satisfied that the requirements of the Schedule 3005 do not apply to the applicant.

27. As the Tribunal has found that the applicant satisfies Schedule 3002, 3003, 3004 and 3005, or that they do not apply to the applicant, and for these reasons the Tribunal is satisfied that the applicant meets the requirements of cl.461.213(b)(ii).

28. The Tribunal is therefore satisfied that the applicant meets the requirements of cl.461.213(b)(i) and(ii), and therefore the applicant meets the requirements of cl.461.213(b).

29. Accordingly the Tribunal is satisfied the applicant meets the requirements of cl.461.213

30. Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for the visa.

    DECISION

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

    ·Cl.461.213 of Schedule 2 to the Regulations.

    Margie Bourke

    
    

    Member