Choden (Migration)

[2023] AATA 937

Choden (Migration) [2023] AATA 937 (4 April 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Jigme Choden

CASE NUMBER:  2218374

HOME AFFAIRS REFERENCE(S):          BCC2022/4183294

MEMBER:Brygyda Maiden

DATE:4 April 2023

PLACE OF DECISION:  Melbourne

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

Statement made on 04 April 2023 at 5:44pm

CATCHWORDS
MIGRATION –New Zealand Citizen (Family Relationship) (Temporary) (Class UP) visa – Subclass 461 – applicant ceased to hold the substantive visa on 8 September 2021– visa application date was not within 12 months of the relevant day – decision under review affirmed

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 461.213, Schedule 3, 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 24 November 2022 to refuse to grant the 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 applicant, a Bhutan national, applied for the visa on 30 September 2022. The delegate refused to grant the visa on the basis that the delegate was not satisfied that the applicant met Schedule 3 criterion 3002 of the Migration Regulations 1994 (Cth) (“Regulations”).

3. The applicant sought review of the delegate’s decision on 13 December 2022 and attached a copy of the notification from the Department and the decision record.

4. The applicant appeared before the Tribunal on 4 April 2023 to give evidence and present arguments.  The Tribunal also received oral evidence from Mr Daval Morrison, the applicant’s partner.  The applicant was not represented in relation to the review.

5. For the following reasons the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in the present case is whether the applicant meets the Schedule 3 criteria 3002 of the Regulations for the purposes of clause 461.213 of Schedule 2 to the Regulations.

   THE RELEVANT LAW

7. Clause 461.213 requires that at the time of application, if the application is made in Australia:

   “(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.”

8. Schedule 3 criterion 3002 states that:

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

9. Subclause 3001(2) provides:

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

   (a)   if the applicant held an entry permit that was valid up to and including 31 August 1994 but has not subsequently been the holder of a substantive visa – 1 September 1994; or

   (b) if the applicant became an illegal entrant before 1 September 1994 (whether or not clause 6002 in Schedule 6 of the Migration (1993) Regulations applied or section 195 of the Act applies) and has not, at any time on or after 1 September 1994, been the holder of a substantive visa – the day when the applicant last became an illegal entrant; or

   (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

   (d)   if the last substantive visa held by the applicant was cancelled, and the Tribunal has made a decision to set aside and substitute the cancellation decision or the Minister’s decision not to revoke the cancellation – the later of:

   (i)the day when the last substantive visa ceased to be in effect; and

   (ii)the day when the applicant is taken under sections 368C, 368D and 379C of the Act, to have been notified of the Tribunal’s decision.”

   Does the applicant meet Schedule 3 criterion 3002?

10. At the hearing the applicant confirmed that the applicant’s substantive TU500 visa expired on 8 September 2021 and that the applicant lodged the 461 visa application on 30 September 2022.  

11. The Tribunal finds that having regard to the applicant’s evidence and the information contained in the delegate’s decision, that the applicant ceased to hold the substantive visa on 8 September 2021. The Tribunal finds that the relevant day is the last day when the applicant held a substantive visa and the “relevant day” within the meaning of criterion 3001(2)(c)(i) for the purposes of criterion 3002 is 8 September 2021.

12. At the hearing the applicant confirmed that she applied for the New Zealand Citizen (Family Relationship) (Temporary) (Class UP) Subclass 461 visa on 30 September 2022 which she agreed was not within 12 months of the relevant day being 8 September 2021. Therefore, the Tribunal is not satisfied that the applicant meets the Schedule 3 criterion 3002 or clause 461.213 of Schedule 2 to the Regulations.

13. The applicant told the Tribunal about the difficulties she experienced in 2021 including her grandmother passing away in July 2021.  She stated that her grandmother had been there for her when she was younger and her parents separated and that she was unable to attend her grandmother’s cremation as she was having surgery for an ectopic pregnancy.  The healing process had been difficult. The applicant also had issues obtaining divorce papers from her former husband. 

14. The applicant told the Tribunal that Mr Morison’s mother who had cancer passed away on 8 September 2022, which is consistent with the New Zealand death certificate submitted by the applicant.  Mr Morrison had travelled to New Zealand from 2 September 2022 and returned on 18 September 2022 (which is consistent with copies of airline tickets submitted by the applicant) as his mother was passing away.  The applicant claims to have issues with the agency she used in the preparation of the visa document as they were prolonging the process and they were assisting her whilst her whilst Mr Morrison was in New Zealand.

15. Mr Morrison also gave evidence to the Tribunal that the visa agency that the applicant was using stated that Mr Morrison had to be in Australia when the application was lodged, and the parties were told to lodge the application on Mr Morrison’s return from New Zealand.  By then the application was late, and Mr Morrison accepted that he and the applicant had no one to blame but themselves. The applicant did not submit any documents from the visa agency.

16. The Tribunal acknowledges this evidence but having found that the applicant does not meet one of the criteria for the grant of the visa, the Tribunal has no option but to affirm the decision under review.

    Conclusion

17. For the reasons set out above, the Tribunal finds that the applicant does not satisfy clause 461.213 of Schedule 2 of the Regulations.

    DECISION

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

    Brygyda Maiden
    Member