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

1. 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).

2. 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.

3. 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.

4. 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.

5. 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.

6. On 11 July 2022 the applicant provided:

   ·A statement confirming his Subclass 461 visa was due to expire on 2 July 2018. He claimed he lodged his ‘visa application and all required documents’ to the Department of Home Affairs on 28 June 2018 (five days before his visa was due to expire), which the department did not receive ‘until 3 months later on 14 August 2018’. In response to an invitation to comment as to why he did not hold a substantive visa at the time of application the applicant claimed he sought ‘help’ from a migration agent on 27 June 2018 to ‘fill up my visa application and checked everything was correct including the right address to send my application to in Sydney’. He claimed he paid for the visa application and sent it via Express Post on 28 June 2018, which would arrive on 29 June 2018.

   ·A Westpac Bank Statement showing payment of $110.00 on 27 June 2018 to a migration agent;

   ·A photograph of an Express Post envelope with postal number 63513092061068. The Tribunal notes the photograph did not depict the address the envelope was sent to on 28 June 2018 which is discussed further below;

   ·A photograph of an Express Post tracking sticker for postal number 63513092061068;

   ·A Wespac bank statement alleging payment of the visa (indecipherable);

   ·Screenshot of the applicant’s IMMI account showing payment of the visa on 27 June 2018 in the sum of $333.23;

   ·An EFPTOS receipt (indecipherable); and

   ·A copy of the delegate’s decision record.

7. On 18 July 2022 at 4:41am the applicant sent the following email.

   Attn … Apologies this part of the email wasn't send. My witness could not make Monday hearing.[1] Also attached is the original express post envelope that i send my application on. Please be advised its [sic] the right address in Sydney that all NEW ZEALAND FAMILY RELATIONSHIP VISA APPLICATION send do [sic]. It arrived before pr on the 2nd of July 2018 where my visa expired. Im [sic] sure they made a mistake.

   [1] At hearing the applicant identified the witness who ‘could not make it’ to the hearing as the migration agent who ‘helped’ him fill in his visa application. The applicant confirmed he wished to proceed with the hearing based on his own evidence and materials filed in support of the application for review.

8. Accompanied with the email was two photographs of an Express Post (returned and marked ‘invalid’) envelope with postal number 63513092061068. The envelope was date stamped 28 June 2018. The photographs depict the postal address section with thick correction fluid, overwritten with the address ‘GPO BOX 9984’. The postcode section depicts postcode 2000, overwritten with postcode 2001.

9. The applicant appeared before the Tribunal on 18 July 2022 to give evidence and present arguments.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

    The 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

11. (ii)  the applicant satisfies Schedule 3 criteria 3002, 3003, 3004 and 3005.

    The requirements of Schedule 3004 apply

    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. 

12. The issue in the present case is whether 3004(c) is met.

    Factors beyond an applicant’s control

13. 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.

14. 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.

15. The case of Su & Ors v Minister for Immigration & Anor [2007] FMCA 318 Smith FM, referring to the judgment of Mansfield J in Secretary, Department of Social Security v Secara & Ors (1998) 89 FCR 151, states at [17]:

    The first is that a test of whether something was beyond the control of a person requires a consideration of whether that person, in his or her own particular circumstances, might have been able to do something to prevent the relevant event occurring. The test is in that sense "subjective", rather than being directed at deciding what would have been beyond the control of an abstract or "reasonable" person. A second point, is that what is "beyond control" should be tested by considering whether the happening of the event was or was not within the control of the applicant in a practical or realistic sense.

16. In the case of Su[2], the court noted that the applicant could have kept himself informed of the expiry date on his visa in his passport and could have instructed his representative to do something about it. The court found that It was difficult to regard as ‘beyond control’ an event caused by forgetfulness or misunderstanding on the part of the person, where it was within the capacity of the person to appreciate what was needed and to perform an action which would have avoided the event occurring.

    [2] Su & Ors v Minister for Immigration & Anor [2007] FMCA 318

17. In Montero v MIBP [2014] FCCA 946 the applicant claimed that he met cl.3004(c) as he had submitted documents to his employer who prepared the application, repeatedly advised them of his visa expiry date, and that this was a type of visa application which required his employer’s assistance to lodge. The Tribunal did not accept it was beyond the applicant’s control to lodge the application within time himself and found that his decision to let the employer lodge the application was a choice made within his control, referring to Su v MIAC [2007] FMCA 318. The court found that the Tribunal made a jurisdictional error by misconstruing or misapplying cl.3004(c). Although the Tribunal referred to the exposition of the expression ‘beyond the control of a person’ in Su, it did not apply it. According to the court in Montero, the Tribunal failed to consider the fact that the applicant could not have applied for the visa without the cooperation of his employer; and that the applicant could not direct his employer to do what it had to do to enable him to apply before his Subclass 572 visa expired. In that regard cl.857.213(a) required that he must have been nominated by an employer for an appointment in the business of that employer.

18. In Liu v MIAC [2010] FMCA 60 the applicant claimed that he did not hold a substantive visa because he misunderstood the duration of the initial visa due to factors beyond his control, being his lack of English, the complexity of the visa system, and the advice he received from the person who assisted him in applying for the initial visa. The Tribunal found these were not factors beyond the applicant’s control that led to him not having a substantive visa. In upholding the Tribunal’s decision, the court reiterated that the test for criterion 3004(c) is a subjective/objective test. First there must be an assessment of the facts to see whether the evidence demonstrates the applicant in his or her own particular circumstances might have been able to do something to prevent the relevant event occurring. Then, if that is satisfied, there must be an assessment of whether or not these facts were within the control of the applicant in a practical or realistic sense, measured objectively.

    Compelling reasons

19. The expression ‘compelling reasons’ is not specifically defined in the Act or Regulations; however, the reasons in question must force or drive the decision-maker irresistibly to some end.[3] While the word ‘compelling’ may include reasons which are forceful, involve moral necessity or are convincing, it does not, by itself, necessarily require an involuntary element involving circumstances beyond a person's control.[4] Circumstances which constitute ‘compelling reasons’ for not applying the Schedule 3 criteria can arise at any time, including after the visa application is made.[5] Whether a circumstance or reason is compelling is a question of fact for the Tribunal and requires a subjective assessment of all of the circumstances.[6]

    [3] Plaintiff M64/2015 v MIBP [2015] HCA 50 at [31].

    [4] Paduano v MIMIA (2005) 143 FCR 204 at [37]. Note certain regulations are worded, however, so as to specifically require such an ‘involuntary element’. For example, reg 2.05(4) requires 'compelling and compassionate circumstances … over which the person had no control’. In considering reg 2.05(4), the Court in Anani v MIMAC [2013] FCCA 1140 found that the delegate’s reference to policy to the effect that compelling circumstances generally referred to circumstances that were involuntary and characterised by necessity such that the visa holder was faced with a situation in which there was little or no alternative but to seek to remain in Australia did not establish a misstatement or misunderstanding of the law (at [33]).

    [5] Waensila v MIBP [2016] FCAFC 32

    [6] Anani v MIMAC [2013] FCCA 1140 at [34]. While the Court’s comments were made in relation to s 41(2A) and reg 2.05(4) in particular, they appear equally as applicable to where those terms appear elsewhere in the Act or Regulations. See also Whitlam J’s comments in McNamara v MIMIA [2004] FCA 1096 at [10].

    Is criterion 3004 met?

20. Criterion 3004 applies to applicants who ceased to hold a substantive or criminal justice visa on or after 1 September 1994, or who entered Australia unlawfully on or after that date and have not subsequently been granted a substantive visa.

21. It requires the Tribunal to 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 that applied to the last of any entry permits, substantive visas and subsequent bridging visas held by the applicant.

22. 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

23. 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.

24. 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.

25. 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.

26. 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

27. 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

28. The Tribunal notes that the applicant quoted some of the above letter in his statement to the Tribunal referred to in paragraph [6]. The Tribunal is satisfied that the applicant received and understood the contents of the letter which was also referred in the delegate’s decision record.

29. The applicant provided confusing and highly inconsistent evidence. At times the applicant  maintained he sent his first application to the correct GPO Box 9984 Sydney NSW 2001 address. At other times the applicant conceded that he had sent his first application to the incorrect address of Lee Street.

30. To try clarify the applicant’s evidence and assist the applicant, the Tribunal Member put to the applicant that previous email correspondence from the applicant to the department on 13 August 2018 at 10:55am[9] showed that the applicant admitted that he had sent his first visa application to the Lee Street address and had sought instructions as to what address he should send his second visa application to. The Tribunal Member put to the applicant that this undermined the applicant’s claims that he sent his first application to the correct address. The Tribunal Member read the applicant his own email which stated the following:

    [9] Applicant’s email responding to the Department’s 3 July 2018 letter

    Dear Juanita.
    I have received my application back today 13th of August 2018 deemed to be invalid as per reason i send it to your head office address 26 LEE STREET,SYDNEY rather than your GPO BOX 9984.
    Can you please respond if i have to print out a new form fill it out then send it to you GPO
    BOX 9984,SYDNEY.Or send the same form that I already fill out and send it to the above
    right address.
    I have read your letter attached to my returning application it was received by your office on the 3rd of July 2018 I have received it today the 13th of August 2018.My current visa was expired on the 2nd of July 2018.
    I have no contact from your office from when your office received my application until
    today i have listed my phone number and email address behind my application form.
    Can you please advise if i have to send the same application that has been already filled or do i have to fill up a new form and send it.
    Kind regards
    [Applicant – applicant’s mobile][10]

    [10] Email sent from applicant’s iPhone on 13 August 2018 at 10:55am

1. The Tribunal Member asked why the applicant would contact the Department to ask what the correct address was if he had sent his first visa application to the correct address. The applicant initially stated that as per his email he thought the Lee Street address was the correct address and appeared to concede he had sent this first application to the incorrect address and hence was not the holder of a substantive visa at the time of application. He subsequently recanted his evidence and maintained that he sent his application to the correct GPO box address.

2. The Tribunal Member put to the applicant that when his visa application was refused the first time, that he did not attempt to argue to the Department that he had sent his visa application to the correct address. To the contrary the applicant accepted that he had sent his application to the wrong address. The applicant agreed that he did not previously argue his first application was valid.

3. The Tribunal Member also put to the applicant that if the applicant thought that his first visa application was correctly lodged then why did the applicant lodge a second visa application on 14 August 2018. The applicant stated that he thought that he had ‘probably made a mistake’ in relation to his first application and therefore re-sent his original application in another envelope and lodged a second application.

4. The Tribunal Member noted on the morning of the hearing the Tribunal received a photograph of an Express Post envelope referred to in paragraph [8] above. The photograph depicts an envelope with correction fluid over the address section, with a new address of GPO Box 9984 Sydney NSW. In the postcode section depicts an original postcode of 2000 overwritten with postcode 2001.

5. During the hearing the Tribunal Member put to the applicant that it looked like the applicant had applied correction fluid over the original address (Lee Street) and inserted a new address (GPO Box) to make it look like the applicant had sent his first application to the correct address. The applicant was given the opportunity to respond. The applicant stated ‘it was in the box’. The Tribunal Member stated that this did not answer the Tribunal’s question that it appeared the applicant had manufactured evidence to support that he had sent his original application to the correct address. The applicant was given multiple opportunities to respond but was highly evasive. The Tribunal Member also asked why the photograph had been provided so late, noting it was the first time any photograph bearing the envelope address had been supplied. The applicant stated that he could not sleep before the hearing and had looked in his garage and found the envelope in a box. He suggested the conditions in his garage had made the envelope look like he had put correction fluid on the address section.

6. The Tribunal has considered the totality of the evidence, in particular the applicant’s viva voce evidence at hearing and materials filed in support of the application for review, however, does not accept the applicant’s oral assertion that he validly lodged his visa application on 28 June 2018 and was therefore the holder of a substantive visa at the time of application. There is an overwhelming body of evidence and communications which shows that the applicant’s original visa application submitted on 28 June 2018 was invalid, as it was sent to the incorrect ‘Lee Street’ address. The applicant gave highly inconsistent evidence, at times conceding his first application was invalid, to recanting his evidence and claiming he sent his first application to the correct GPO Box address. The Tribunal did not find the applicant a credible or reliable witness. This is further supported by the department’s letter dated 3 July 2018 where it notified the applicant that his original application was invalid.[11] It is further supported by the applicant’s email to the department dated 13 August 2018 where he admitted he sent his first application to the incorrect ‘Lee Street’ address and sought instructions as to how and where he should send his second application. His evidence is also significantly undermined by the fact that he submitted a second application which is incongruent with a visa applicant who believed their first application to be validly lodged.

   [11] Referred to in the delegate’s decision record

7. The Tribunal further does not accept that the Express Post envelope sent on 28 June 2018 (depicted in the photograph sent on the morning of the hearing) contained the GPO Box postal address. The Tribunal Member has reviewed the photograph carefully and in the Tribunal’s view it clearly appears that correction fluid has been applied to the envelope’s address and replaced with the correct GPO Box to attempt to give the impression that the applicant sent his original application to the correct address. This is further supported by the postcode, which shows 2000 underneath (consistent with the incorrect Lee Street address), with 2001 written on top (the correct GPO Box address). The Tribunal finds it curious to the extreme as to why the applicant would provide the photograph at such short notice and notes all previous photographic evidence only showed tracking numbers rather than addresses. In the Tribunal’s view the applicant has manufactured the evidence in a last minute attempt to bolster his argument that he validly lodged his first application and was the holder of a substantive visa at the time of application, which the Tribunal does not accept. The Tribunal further rejects the applicant’s evidence that his garage conditions caused the envelop to deteriorate to such an extent that it caused the appearance of correction fluid in the address section. It is also inconsistent with other parts of the envelope which remain intact. Overall, the Tribunal found the applicant to be an untruthful and unreliable witness. The Tribunal also found the applicant’s photographic evidence highly misleading. The Tribunal rejects applicant’s evidence that he validly lodged his application whilst the holder of a substantive visa and therefore he must satisfy criterion 3004.

8. Based on the information available to the Tribunal, the Tribunal is satisfied that the applicant was in Australia at the time of application and did not hold a substantive visa. Therefore the requirements of cl.461.213(b)(ii) apply to the applicant. The last substantive visa the applicant held was not a subclass 403 visa. Therefore the applicant meets the requirements of cl.461.213(b)(i). It is for this reason that the application for the visa made by the applicant engages criterion 3004.

9. In the delegate’s decision record dated 1 October 2021, the delegate found that the applicant did not meet criterion 3004(c), which requires that the applicant was not the holder of a substantive visa at the time of application because of factors beyond the applicant’s control.

10. The Tribunal Member asked the applicant how not holding a substantive visa at the time of application for the visa was because of factors beyond the applicant’s control.

11. The applicant provided a variety of answers including that he was ‘stressed’ and ‘going through a divorce’ and that he had sought help from a migration agent who he ‘trusted’ and paid for the visa earlier in June. The delegate’s decision record noted his relationship with the New Zealand citizen ceased on 15 January 2015.

12. The Tribunal has considered the applicant’s oral evidence carefully, in addition to his response to the department’s natural justice letter. Although the applicant may have been stressed and experiencing the dissolution of a relationship, the Tribunal notes that the applicant separated from his partner over three years earlier and therefore had ample time to prepare himself and organise his migration affairs. The Tribunal notes no evidence was produced evidencing a divorce or family law litigation such as court orders and therefore places limited weight on the applicant’s claims. Knowledge of the expiration date of the applicant’s Subclass 461 visa was information within the applicant’s control and the applicant could have taken steps to apply for the visa in time. The Tribunal further notes that the applicant has been granted a total of four previous visas, including three Visitor visas and one Subclass 461 visa and travelled to Australia on multiple occasions, over many years and therefore could have taken the same care as indicated by his prior conduct. Although the Tribunal has great sympathy for the applicant, the Tribunal does not accept that his stress or the earlier breakdown of his relationship was a factor beyond his control for not holding a substantive visa at the time of application.

13. The Tribunal has also considered the applicant’s claims regarding help from a migration agent and earlier payment of his visa. Although the applicant may have paid for the visa application on June 2018 and sought help from a migration agent, the department did not receive the second application until 14 August 2018. The fact that the applicant paid for the application and sent it prior to the expiry of the applicant’s substantive visa does not mean the application was received by the department before the expiry of the applicant’s substantive visa. Further, although the applicant claims to have sought assistance from a migration agent, the applicant did not have an appointed migration agent as evidenced by the applicant’s visa application.[12] Whilst the Tribunal understands that the applicant may have obtained assistance in filling out his visa application, the Tribunal is not satisfied that these constitute factors beyond the applicant’s control. Applying the above case authorities such conduct falls well short of a factor beyond the applicant’s control.

    [12] Applicant’s answers to questions 33 and 37 in visa application (Form 147)

14. 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

15. The Tribunal affirms the decision to refuse to grant the applicant a New Zealand Citizen (Family Relationship) (Temporary) (Class UP) Subclass 461 visa.

    Naomi Schmitz
    Member