Belshaw (Migration)

[2023] AATA 1964

Belshaw (Migration) [2023] AATA 1964 (31 May 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Susan Ann BELSHAW

CASE NUMBER:  2116593

HOME AFFAIRS REFERENCE(S):          BCC2020/20247

MEMBER:Mireya Hyland

DATE:31 May 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 31 May 2023 at 1:29pm

CATCHWORDS
MIGRATION – New Zealand Citizen (Family Relationship) (Temporary) (Class UP) visa – Subclass 461 New Zealand Citizen Family Relationship (Temporary) – Schedule 3 criteria – no substantive visa for more than 12 months prior to lodgement of visa application – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 461.213; Schedule 3, Criterion 3002

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 3 November 2021 to refuse to grant the visa applicant, Susan Ann Belshaw, a New Zealand Citizen (Family Relationship) (Temporary) (Class UP) Subclass 461 visa under s.65 of the Migration Act 1958 (the Act).

2. Ms Belshaw applied for the visa on 24 January 2020 on the basis of her relationship with her sponsor, John Anthony Carney. 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 Ms Belshaw does not satisfy the requirements in cl.461.213 of the Regulations because she did not lodge her visa application within 12 months after the last day on which she held a substantive visa. Ms Belshaw lodged an application for review of the decision with the Tribunal on 13 November 2021 and the matter was constituted to the Tribunal on 6 April 2023. The delegate’s decision was provided to the Tribunal by Ms Belshaw with her review application.

3. Ms Belshaw appeared before the Tribunal on 10 May 2023 via Microsoft Teams video conference to give evidence and present arguments. The hearing was conducted in English. At the hearing the Tribunal put information to Ms Belshaw that it considered would, subject to her comments or response, be the reason, or part of the reason, for affirming the decision under review. It gave her an opportunity to comment on or respond to that information as well as request an adjournment. Ms Belshaw did not request an adjournment. The Tribunal has taken her comments and response into account in its decision. Where relevant the evidence given at the hearing is included in this decision. It is not necessarily set out in the order in which it was given.

4. The issue in the present case is whether Ms Belshaw meets cl.461.213 and, in particular, whether Public Interest Criterion (PIC) 3002 is satisfied. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. Ms Belshaw was born on 29 December 1968 and is 54 years of age. She is a citizen of the United Kingdom. On 24 August 2018, she entered Australia as the holder of a Visitor (Class TV) Subclass 651 e-Visitor visa granted on 14 March 2018 which ceased on 24 November 2018. Mr Carney was born on 7 November 1968 and is 54 years of age. He is a citizen of New Zealand and the holder of a Special Category (Temporary) (Class TY) Subclass 444 visa. He does not meet the definition in the Regulations for an Eligible New Zealand Citizen.

6. Ms Belshaw told the Tribunal that initially she and Mr Carney were given wrong advice by the Department of Home Affairs, and she applied for a partner visa believing that Mr Carney was an Eligible New Zealand Citizen. On 8 October 2018, she was granted a Bridging Visa A (Class WA) Subclass 010 visa (BVA) in association with that application which came into effect on 25 November 2018 after her e-Visitor visa ceased. Once Ms Belshaw withdrew her partner visa application because Mr Carney is not an Eligible New Zealand Citizen, and made her current visa application, she was granted a Bridging Visa C (Class WC) Subclass 030 visa on 28 January 2020. That bridging visa came into effect once her BVA had ceased on 3 March 2020.

7. It is a criterion for the grant of the visa that Ms Belshaw meet cl.461.213 at the time of the application. It states:

   461.213

   If the application is made in Australia: 

   (a)   at the time of application, the applicant held a substantive temporary visa other than a Subclass 403 (Temporary Work (International Relations)) visa in the Domestic Worker (Diplomatic or Consular) stream; 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.

   The meaning of substantive visa is found in r.1.03 and, relevantly, includes a visa other than a bridging visa.

8. On 24 January 2020, the time of application, Ms Belshaw was the holder of a BVA. Since a substantive visa is a visa other than a bridging visa, she was not the holder of a substantive temporary visa and does not meet cl.461.213(a) of the Regulations.

9. Because Ms Belshaw was not the holder of a substantive visa at the time of application, she is required to satisfy PIC3002 for the purposes of cl.461.213(b)(ii) of the Regulations. That clause will be satisfied if: ‘The application is validly made within 12 months after the relevant day (within the meaning of subclause 3001(2)).’

10. Relevantly, PIC 3001(2) prescribes that:

    3001

    …

    (2)For the purposes of subclause (1) and of clause 3002, the relevant day, in relation to an applicant, is:

    …

    (c)if the applicant:

    (i)    ceased to hold a substantive or criminal justice visa on or after 1 September 1994; or

    (ii)    entered Australia unlawfully on or after 1 September 1994;

    whichever is the later of:

    (iii)   the last day when the applicant held a substantive or criminal justice visa; or

    (iv)   the day when the applicant last entered Australia unlawfully; or

    …

    Ms Belshaw’s e-Visitor visa was her last substantive visa which ceased on 24 November 2018. Therefore, that is the relevant day for the purposes of PIC3002: PIC3001(2)(c)(i), (iii).

11. Pursuant to PIC3002, Ms Belshaw was required to validly make her visa application by 24 November 2019, being within 12 months after the relevant day in this case. The application was lodged on 24 January 2020. Therefore, it was not made within 12 months after the relevant day within the meaning of subclause 3001(2).

12. Given the above findings, Ms Belshaw does not satisfy PIC3002 and, therefore, cannot meet cl.461.213(b) of the Regulations.

13. Since Ms Belshaw does not meet either of the subclauses in cl.461.213, the Tribunal finds that the criteria for the grant of a Subclass 461 visa are not met.

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

    DECISION

15. 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