Baig (Migration)

[2018] AATA 3477

Baig (Migration) [2018] AATA 3477 (27 July 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Nargis Baig

CASE NUMBER:  1707608

DIBP REFERENCE(S):  BCC/2016/1746430 BCC2016/1746430

MEMBER:Meena Sripathy

DATE:27 July 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a New Zealand Citizen (Family Relationship) (Temporary) (Class UP) Subclass 461 visa, 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 27 July 2018 at 10:05am

CATCHWORDS
Migration – New Zealand Citizen (Family Relationship) (Temporary) (Class UP) visa – Subclass 461New Zealand Citizen Family Relationship (Temporary) – Schedule 3 criteria – External factors and compelling reasons – Full time care of child – Child’s significant disability – Reliance on husband – Short period without substantive visa – Decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 360
Migration Regulations 1994 (Cth), Schedule 2 cl 461.213, Schedule 3 Criteria 3004

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 22 March 2017 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 16 May 2016. The delegate refused to grant the visa on the basis that the visa applicant did not meet the requirements of Schedule 3 criteria 3004 and therefore did not satisfy cl 461.213.

3. In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the visa applicant on the basis of the material before it, pursuant to s.360(2)(a) of the Act.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The applicant arrived in Australia as the holder of a NZ Citizen (Family Relationship) Temporary Visa Class UP (Subclass 461) visa, granted 10 March 2011 and valid until 10 March 2016. 

6. She lodged a further application for a NZ Citizen (Family Relationship) Temporary Visa Class UP (Subclass 461) visa (the present application) on 16 May 2016, after the expiry of her previous visa.  In her application she provided information that she is a Pakistani national, her spouse is a New Zealand citizen and she has three children, born in 2006, 2011 and 2013.  She arrived in Australia on 21 April 2012. Evidence of her passport, birth certificate, spouse’s NZ passport and marriage certificate were provided with the application.

7. The issue in the present case is whether the applicant satisfies cl. 461.213, which requires that she meet the requirements of Schedule 3 criteria 3002, 3003, 3004, 3005.

8. On 2 June 2016 the Department wrote to her requesting a statement and any supporting evidence as to factors beyond her control that caused her to lodge her application outside the period of her previous substantive visa.

9. She provided a statement to the Department in response explaining that her husband was responsible for organising all the passports and documents and he misread the expiry date and thought it was 2018.  As soon as she realised she contacted the Department and submitted her application.  She explained that she is responsible for looking after their three young children.

10. The delegate was not satisfied, on the basis of the evidence and reasons provided, that there were any factors external to the applicant and over which she had any control to explain why she lodged her application after her substantive visa ceased nor that there were any compelling reasons relevant to the granting of the visa. On this basis the delegate was not satisfied that she met schedule 3, 3004 (c) and (d) and therefore cl. 461. 213 and her application was refused on 22 March 2017.

11. The applicant’s three minor children, Mahrukh, Shahzeb and Shereryar are all residing in Australia and holders of Subclass 444 visas.  The elder two children entered Australia at the same time as the applicant, on 21 April 2012 as holders of Subclass 461 visas, and were subsequently granted Subclass 444 visas. The youngest child was born in Australia in 2013 and was granted a Subclass 444 visa. The applicant’s spouse arrived in Australia in April 2011 and is the holder of a Subclass 444 visa.

12. Before the Tribunal, the following further information has been provided.  The applicant’s youngest child has been diagnosed with Autism Spectrum Disorder (ASD) Level 3 in March 2015.  The applicant is his primary carer, and he is wholly dependent on her for significant support for living skills on a daily basis. Her son receives ongoing support from community services in Australia and the applicant accompanies him to these sessions. Evidence of the child’s diagnosis and support received was provided in the form of letters from his doctor, NDIS Service Reports and a support letter from his Early Childhood Intervention Teacher/worker. The applicant’s representative submitted that the applicant’s son requires her full attention; her time and attention was entirely focussed on him and the family was under immense pressure and this is one of the reasons for the failure to lodge her application on time. It is submitted that the circumstances of her son’s disability was a factor beyond her control and his full time reliance and dependency on her, and hardship to him if she was required to depart Australia, are compelling reasons for granting the visa.  The representative submitted the applicant and her family, including three young children, would face significant hardship if required to return to Pakistan if the visa was refused. The child with the disability, in particular, would face significant hardship if required to leave Australia and is unlikely to be able to cope with the changes involved in being relocated. The applicant’s husband would also face hardship if separated from his family.  It is submitted that, apart from the late lodgement of the application, the applicant has complied with all visa conditions in the past and will comply in future.

    Does the applicant meet Schedule 3 criteria 3004?

13. The criteria for the grant of a Subclass 461 visa provides that an applicant in Australia who is not the holder of a substantive visa at the time of application must meet the following criteria in Schedule 3 to the Regulations: 3002, 3003, 3004 and 3005: cl 461.213(b)(ii).

14. It is not in dispute that the applicant did not have a substantive visa at the time of application. The Tribunal accepts that the last substantive visa she held was a Subclass 461 visa, and she meets cl.461.213(b)(i). No issue was identified by the Department, and the Tribunal is satisfied that the applicant meets criterion 3002, and that criteria 3003 and 3005 do not apply to her circumstances. These criteria are set out in the attachment to this decision.

15. The issue in the present case is whether she satisfies Schedule 3 criterion 3004.

16. Criterion 3004 of Schedule 3 requires that the Minister be satisfied that the applicant is not the holder of a substantive visa because of factors beyond his or her control, that there are compelling reasons for granting the visa, and that the applicant has complied substantially with the conditions applicable to the last of any substantive visas and any subsequent bridging visa held by the applicant. In addition, the Minister must be satisfied that the applicant would have been able to be granted the visa if the applicant had applied on the day he or she last held a substantive or criminal justice visa; or would have satisfied the criteria when he or she last entered Australia unlawfully; that the applicant intends to comply with any conditions of the visa; and the last visa or entry permit held (if any) 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.

17. The Tribunal has carefully considered the evidence and arguments submitted on behalf of the applicant now before it.  It accepts that the applicant entered Australia as the holder of a Subclass 461 visa that was valid until 10 March 2016 and that she did not lodge the present application until 16 May 2016.  Therefore she was not the holder of a substantive visa at the time of application. She explained to the Department that her husband was responsible for arranging her visa and he misread the expiry date. Before the Tribunal further explanation and information about the family’s circumstances has been provided.  Specifically and relevantly, information was provided about the circumstances of their child having a significant disability and the pressures imposed on the applicant and the family as a result of this.  Considering this additional information and evidence now before it, the Tribunal accepts that the applicant’s reliance on her husband to attend to the matter of her visa was not unreasonable in the circumstances and that, in these circumstances, the late lodgement of the applicant was due to factors beyond her control.

18. It is also satisfied, having regard to all of the information now before it, that there are compelling reasons for granting the visa.  In reaching this conclusion the Tribunal has taken the following matters into consideration: that all of the members of her immediate family are residing in Australia and the holders of Subclass 444 visas, her youngest son’s disability and his reliance on her for care and support; and the relatively short period that she was without a substantive visa (less than 3 months).  There is no information before the Tribunal to indicate that the applicant did not comply with the conditions of her last substantive visa, and it is submitted to the Tribunal that she has complied.  On this basis the Tribunal is satisfied that she has complied substantially with the visa conditions in the past and that she intends to do so in future. 

19. On the basis of the above findings the Tribunal is satisfied that the applicant meets the requirements of Schedule 3 criterion 3004. Therefore the applicant meets cl.461.213.

20. Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 461 visa.

    DECISION

21. The Tribunal remits the application for a New Zealand Citizen (Family Relationship) (Temporary) (Class UP) Subclass 461 visa, 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.

    Meena Sripathy
    Member

    
    

    ATTACHMENT - Extract from Migration Regulations 1994

    Schedule 3

    3002  

    The application is validly made within 12 months after the relevant day (within the meaning of subclause 3001(2)).

    3003

    If:

    (a)the applicant has not, on or after 1 September 1994, been the holder of a substantive visa; and

    (b)on 31 August 1994, 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 Minister is satisfied that:

    (c)the applicant last became an illegal entrant, or, in the case of a person referred to in subparagraph (b)(ii), last became a person in Australia without 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 the conditions that apply or applied to:

    (i)       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

    (ii)      any subsequent bridging visa; and

    (f)the applicant would have been entitled to be granted an entry permit equivalent to a visa of the class applied for if the applicant had applied for the entry permit immediately before last becoming an illegal entrant or, in the case of a person referred to in subparagraph (b)(ii), if the applicant had applied for the entry permit on 31 August 1994; and

    (g)the applicant intends to comply with any conditions subject to which the visa is granted; and

    (h)the last entry permit (if any) held by the applicant was not granted 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.

    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.

    3005  

    A visa or entry permit has not previously been granted to the applicant on the basis of the satisfaction of any of the 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.

    Note:      Section 10 of the Act provides that a child who was born in the migration zone and was a non-citizen when he or she was born shall be taken to have entered Australia when he or she was born.