Fakautoki (Migration) - [2022] AATA 3322

Fakautoki (Migration) [2022] AATA 3322 (23 August 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Dieta Fakautoki
CASE NUMBER:  2114541
HOME AFFAIRS REFERENCE(S):          BCC2018/3074866

MEMBER:Naomi Schmitz
DATE:23 August 2022
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision to refuse to grant the visa applicant a New Zealand Citizen (Family Relationship) (Temporary) (Class UP) Subclass 461 visa

Statement made on 23 August 2022 at 11:27am

CATCHWORDS
MIGRATION – New Zealand Citizen (Family Relationship) (Temporary) (Class UP) visa – Subclass 461 New Zealand Citizen Family Relationship (Temporary) – no substantial visa at the time of application – factors beyond the applicant’s control – compelling reasons – further visa application posted to incorrect address – relationship ceased – decision under review affirmed
LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 461.213; Schedule 3, Criterion 3004
CASES
Anani v MIMAC [2013] FCCA 1140
Liu v MIAC [2010] FMCA 60
McNamara v MIMIA [2004] FCA 1096
Montero v MIBP [2014] FCCA 946
Paduano v MIMIA (2005) 143 FCR 204
Plaintiff M64/2015 v MIBP [2015] HCA 50
Secretary, Department of Social Security v Secara & Ors (1998) 89 FCR 151
Su v MIAC [2007] FMCA 318
Waensila v MIBP [2016] FCAFC 32
statement of decision and reasons
application for review

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 1 October 2021 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).
The visa applicant applied for the visa on 14 August 2018. The applicant lodged the application for the visa on the basis of being a member of the family unit of a person who is in Australia as the holder of a Subclass 444 (Special category) visa, the applicant’s former spouse Motiana Francis Bernard.
The criteria for the Subclass 461 visa are set out in Part 461 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). Clause 461.213 requires that, inter alia, if the visa applicant lodges the application in Australia, and an applicant did not hold a substantive visa at that time, an applicant must satisfy each of criteria contained within Schedule 3, including criteria 3002, 3003, 3004 and 3005.
The delegate refused to grant the visa on the basis that the applicant did not meet cl.461.213 because the delegate was not satisfied that the applicant met the requirements of Schedule 3004. Relevantly in this case, the delegate was not satisfied that the visa applicant satisfied criteria 3004(c) that the applicant was not the holder of a substantive visa because of factors beyond the applicant’s control. The delegate did not consider criteria 3002, 3003 and 3005.
On 19 October 2021 the applicant applied to the Tribunal for a review of the refusal decision. The applicant provided the Tribunal with a copy of the delegate’s decision record.
On 11 July 2022 the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Fakautoki (Migration)

Details

AGLC: Fakautoki (Migration) [2022] AATA 3322
Case: [2022] AATA 3322
Decision Date: 23 August 2022

CaseChat Overview and Summary

This matter concerned an application for a Subclass 461 New Zealand Citizen Family Relationship (Temporary) visa by a New Zealand citizen. The applicant sought review of a decision affirming the refusal to grant the visa. The central dispute revolved around whether the applicant met the requirements of clause 461.213 of the Migration Regulations 1994, specifically concerning the holding of a substantive visa at the time of application or, alternatively, satisfying Schedule 3 criteria, including those relating to factors beyond the applicant's control.

The legal issues before the Tribunal were whether the applicant satisfied the criteria for the Subclass 461 visa, particularly clause 461.213(b)(ii) which requires an applicant who did not hold a substantive visa at the time of application to satisfy Schedule 3 criteria. This included determining whether the applicant could demonstrate that their failure to hold a substantive visa was due to factors beyond their control, as required by Schedule 3 criterion 3004(c). The Tribunal also considered whether there were compelling reasons for granting the visa and if the applicant had complied substantially with visa conditions, though the primary focus remained on criterion 3004(c).

The Tribunal reasoned that the applicant's failure to hold a substantive visa at the time of application was not due to factors beyond their control. The applicant had lodged their visa application with the Department of Home Affairs, but it was sent to an incorrect postal address, leading to its invalidation. The Tribunal found that the applicant had been notified of the correct lodgement address and had an email account linked to their immigration account, indicating they had the means to ensure the application was correctly lodged. Consequently, the Tribunal concluded that criterion 3004(c) was not met.

As the Tribunal found that the applicant did not satisfy the requirement that the failure to hold a substantive visa was due to factors beyond their control, it was not necessary to consider the other Schedule 3 criteria, such as compelling reasons for granting the visa. Accordingly, the Tribunal affirmed the decision to refuse to grant the applicant the Subclass 461 visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCEThe requirements of cl.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 requirements of Schedule 3004 applyIf 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. The issue in the present case is whether 3004(c) is met. Factors beyond an applicant’s control Criteria 3004(c) requires the decision-maker to be satisfied that the applicant was not the holder of a substantive visa due to factors beyond the applicant’s control. The Tribunal has had regard to various intermediate appellate court authorities regarding the interpretation of this provision including the decision in Su v MIAC [2007] FMCA 318; Liu v MIAC [2010] FMCA 60; and Montero v MIBP [2014] FCCA 946.

Decision

Reasons for decision

In the circumstances the Tribunal finds that the failure to hold a substantive visa was not, in any sense, because of factors beyond the applicant’s control – see criteria 3004(c). Having made this finding, the Tribunal is not required to consider criteria 3004(d) concerning compelling reasons for granting the visa. The applicant does not satisfy clause 461.213.decision The Tribunal affirms the decision to refuse to grant the applicant a New Zealand Citizen (Family Relationship) (Temporary) (Class UP) Subclass 461 visa.Naomi SchmitzMember

Ratio Decidendi

Legal Principle Established

In addition, the Tribunal must be satisfied that: the applicant would have satisfied the criteria, or would have been entitled to be granted the visa on the day he or she last entered Australia unlawfully or last held a substantive or criminal justice visa; the applicant intends to comply with any conditions of the visa; and, 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.CONSIDERATION OF CLAIMS AND FINDINGS The Tribunal has the Department’s file relating to the applicant and has considered its contents. The Tribunal has noted the following background information upon which the delegate’s decision was based. The applicant last arrived in Australia on 12 July 2017 as the holder of a New Zealand Citizen (Family Relationship) (Temporary) (Class UP) Subclass 461 visa which was valid until 2 July 2018. The applicant lodged an application for a temporary visa, a New Zealand Citizen Family Relationship (Temporary) Visa (Class UP461) on 14 August 2018. At hearing the applicant gave evidence that his last substantive visa was a New Zealand Citizen (Family Relationship) (Temporary) (Class UP) Subclass 461 visa which expired on 2 July 2018. He confirmed he has previously held three Subclass 676 Visitor visas. The Tribunal Member asked the applicant whether he had an IMMI, Visa Entitlement Verification Online (VEVO) account or registered email account with the immigration department. The applicant confirmed he had an email account which he used to keep in contact with the Department. Documents submitted by the applicant show this email address is linked to the applicant’s IMMI account. At hearing the applicant gave evidence that he submitted his original visa application on 28 June 2018 via Express Post, postal number 63513092061068. He claimed he paid for the visa on 27 June 2018 and used a migration agent to ‘help’ fill in the application and in support provided a Westpac bank statement. The application was received by the Department on 29 June 2018. The applicant thereafter attempted to argue that he did not need to satisfy criterion 3004 as he was the holder of a substantive visa at the time of application. As outlined in the delegate’s decision record, the application received by the Department on 29 June 2018 was not a valid application, as it was sent to the incorrect postal address, namely 26 Lee Street Sydney 2000, rather than the New Zealand Family Relationship visa application Department of Home Affairs GPO Box 9984 Sydney NSW 2001. Therefore the application was invalidated on 3 July 2018 and the applicant was notified of this decision on the same date.[7][7] Delegate’s decision record At hearing the Tribunal Member referred to the delegate’s decision record and explained this to the applicant. The Tribunal Member also referred to the notification of invalid application letter dated 3 July 2018 sent to the applicant and shared her Microsoft Teams screen to show the applicant he had sent his first application to the incorrect address. The letter read as follows:[8]Your application for a New Zealand Family Relationship Temporary visa (UP461) is invalid because it did not meet Item 1214BA(3)(a) of Schedule 1 of the Migration Regulations which explained ‘as of 20 February 2017 461 visa applications can only be lodged at the Sydney office of the department of Home Affairs posted to the New Zealand Family Relationship visa application Department of Home Affairs GPO Box 9984 Sydney NSW 2001. [8] Notification of invalid application dated 3 July 2018 from the Department to the applicant