Ali (Migration)

[2023] AATA 2295

Ali (Migration) [2023] AATA 2295 (17 July 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Taimoor Ali

CASE NUMBER:  1935935

HOME AFFAIRS REFERENCE(S):          BCC2017/3472952

MEMBER:M. Edgoose

DATE:17 July 2023

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 461 visa:

·cl 461.212(2)(b) of Schedule 2 to the Regulations

·cl 461.221of Schedule 2 to the Regulations.

Statement made on 17 July 2023 at 10:09am

CATCHWORDS
MIGRATION – New Zealand Citizen (Family Relationship) (Temporary) (Class UP) visa – Subclass 461 (New Zealand Citizen Family Relationship (Temporary)) – member of family unit – credible oral evidence from applicant and sponsor – two young children, and other family members in Australia supportive of relationship and willing to help – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 461.212(1), (2)(b), 461.221

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 15 October 2019 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 (Cth) (the Act).

2. The visa applicant applied for the visa on 21 September 2017. The delegate refused to grant the visa on the basis that the applicant did not meet the requirements of cl 461.212 and cl 461.221 as the delegate was not satisfied that the applicant was a member of the unit of a New Zealand citizen as defined under the Regulations.  

3. The applicant appeared before the Tribunal via MS Teams on 17 July 2023 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Heena Lalani the sponsor and spouse of the visa applicant. 

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. At the time the visa applicant was made and at the time of this the decision the Tribunal must be satisfied that the applicant meets cl 461.212(2)(b) and cl 461.221.

   cl 461.212(2)(b) states:

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

   (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.

6. As the Tribunal is satisfied that the applicant meets the requirements of cl 461.212(2) he therefore meets the requirements of cl 461.212(1).

7. At hearing the sponsor told the Tribunal that she and the applicant intend to remain as a family unit when they are able relocate back to Australia. She further mentioned that she has a cousin, brother, a cousin’s sister and family friends living in Australia that are fully supportive of the relationship and who are willing to help with their two young children. The sponsor mentioned that she is currently unemployed having recently given birth to their second child but had previously been employed when living in Australia. The couple intended to live in the northern or south eastern suburbs on their return to Melbourne. The Tribunal found the sponsor to be a credible witness. Given this the Tribunal places significant weight on her oral evidence at hearing.

8. The applicant informed the Tribunal that he and his family would prefer to live in Australia as a family unit. Prior to departing Australia, he was worked as an Uber driver and has maintained this employment after relocating to New Zealand in 2022. He further mentioned that he has approximately NZD20,000 in the bank however the Tribunal notes that no evidence of this was submitted to the Tribunal. He told the Tribunal that if he was not granted the visa to return to Australia he would continue living in New Zealand with his wife and two young children. The Tribunal found the applicant to be a credible witness. Given this the Tribunal places significant weight on his oral evidence at hearing. 

9. The Tribunal is satisfied that the couple intend to return to Australia as soon as possible as a couple and family unit. Therefore, the Tribunal is satisfied that the sponsor will be accompanying the applicant to Australia and will, on entry, be the holder of a special category visa. Given this the Tribunal is satisfied that the visa applicant meets the requirements of cl 461.212(2)(b).

10. cl 461.221 states:

    The applicant continues to satisfy the criterion in subclause 461.212(1).

    In accordance with subclause 461.212 (1), you must meet the requirements of subclause (2), (3) or (4).

11. Given this the Tribunal is satisfied that the applicant meets the requirements of cl 461.212(2)(b). The Tribunal is therefore satisfied that the applicant meets the requirements of cl 461.221.

    DECISION

12. The Tribunal remits the application for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 461 visa:

    ·cl 461.212(2)(b) of Schedule 2 to the Regulations

    ·cl 461.221 of Schedule 2 to the Regulations.

    M. Edgoose
    Member