Galeziowski (Migration)

[2020] AATA 2406

Galeziowski (Migration) [2020] AATA 2406 (18 June 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Martin Galeziowski

CASE NUMBER:  1926339

DIBP REFERENCE(S):  CLF2019/34055

MEMBER:Denis Dragovic

DATE:18 June 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant an Other Family (Residence) (Class BU) visa.

Statement made on 18 June 2020 at 1.31pm

CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 835 (Remaining Relative) – Schedule 3 criteria – application lodged outside of relevant timeframe – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 835.211; 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 Immigration on 11 September 2019 to refuse to grant the applicant an Other Family (Residence) (Class BU) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 2 September 2019. At that time, Class BU contained three subclasses, Subclass 835 (Remaining Relative); Subclass 836 (Carer) and Subclass 838 (Aged Dependent Relative). In the present case, the applicant is seeking to satisfy the criteria for the grant of a Subclass 835 visa which are set out in Part 835 of Schedule 2 to the Migration Regulations 1994 (the Regulations). Relevantly to this matter, the primary criteria to be met include cl.835.211.

3. The delegate refused to grant the visa on the basis that cl.835.211 was not met because it requires the applicant at the time of application to either hold a substantive visa or satisfied Schedule 3 criterion 3002 which requires a valid application to be made within 12 months of a substantive visa being held. The delegate found the visa application to have been made three and a half years after the last substantive visa ceased.

4. The applicant appeared before the Tribunal on 15 June 2020 to give evidence and present arguments. The Tribunal also received oral evidence from Bozena Galeziowski. The Tribunal hearing was conducted with the assistance of an interpreter in the German and English languages.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The visa application was made on the basis that the applicant is the remaining relative of Bozena Galeziowski, who the applicant claims is their Australian relative. For the purposes of this application, ‘Australian relative’ means a ‘relative’ of the applicant who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen.

7. Clause 835.211 requires that at the time of application the applicant is the holder of a substantive visa or a person who is not the holder of a substantive visa but satisfies clause 3002.

   Cl 835.211

   The applicant is:

   (a)  the holder of a substantive visa (other than a Subclass 771 (Transit) visa); or

   (b)  a person who:

   (i)  is not the holder of a substantive visa; and

   (ii)  immediately before ceasing to hold a substantive visa, was not the holder of a Subclass 771 (Transit) visa; and

   (iii)  satisfies Schedule 3 criterion 3002.

8. At the time of application, the applicant was not the holder of a substantive visa. The applicant’s last substantive visa ended on the 16 March 2016. The applicant’s mother gave evidence that she had sought to extend the applicant’s stay in Australia by attending the offices of the Department of Immigration and was under the impression she had done that until they received notice of the refusal for this visa.

9. In a submission she explained the circumstances surrounding her efforts to extend her son’s visa in March 2015. This evidence was given briefly again at the hearing. I reproduce her explanation from her submission below:

   [W]ith only one week remaining on Martin and Weronika's tourist visas, I travelled to the Department of lmmigration in Sydney to obtain information on how they could lawfully remain in Australia under these circumstances. I was advised to return once the baby was born and a passport had been issued, because at the time, the laws were changing and it would not be possible for the baby to be an Australian citizen, so the parents would need to decide on the nationality of the baby and then take the necessary steps to acquire a passport. (please also find herewith documents which show I was acting on behalf of my son and also daughter in law and also evidence that during their time in Australia I have been supporting them). Weronika gave birth to Liam Jacob Galeziowski Slachciak on 2nd April 2016 in Orange Base Hospital. Given Martin is German and Weronika is Polish, Liam was deemed "stateless" so the process of obtaining a NSW Birth Certificate in the first instance was difficult which was eventually issued 5 months later on 23rd September 2016. (Please find attached herewith a copy of the documents relating to the delay of acquiring Liam's NSW birth certificate). Subsequent to this, the NSW Birth Certificate was translated to Polish and then sent to Poland to Weronika's mother, who was required to act on her behalf and register Liam's birth and citizenship which took over 7 months. We were then later required to start the process of acquiring a passport for Liam at the Polish Consulate in Sydney. Here we encountered many problems with the Consulate General, who was being racist towards Martin because he was German. After almost 6 trips to Sydney and a lot of time spent coming and going from the Polish Consulate in Sydney, we re-directed the passport application process to the Polish Consulate in Canberra in March 2019 and the process of Liam acquiring a Polish passport was instant and he received his new Polish passport in April 20L9." So from my point of view and understanding, I was advised to contact the Department again for permanent visa applications once my grandson's passport was issued, which as stated above was April 2019 and for this reason we are now applying for permanent residence for my son and/ or Other Family (Residence) (Class BU) Remaining Relative (Subclass 835)visa.

   There is no contention that a visa was granted but that the government’s record systems had failed. Instead, the contention is that poor advice was given to the applicant’s mother who was arranging the visa. This may or may not be the case. For the purposes of the Tribunal’s decision the situation remains that the applicant was unlawful at the time of the application for this visa. The Tribunal does not have discretion on these matters.

10. As such to meet cl.835.211 the applicant needed to satisfy Schedule 3 criterion 3002 and not be the holder of a s.c.771 visa.

11. Schedule 3 criterion 3002 requires an application to be validly made within 12 months of the relevant date. The relevant day in this case is defined by cl.3001(2)(c)(iii) which is ‘the last day when the applicant held a substantive or criminal justice visa’. The last day the applicant held a substantive visa is not in dispute. The applicant’s last substantive visa was a visitor visa (subclass 651) that ceased on 16 March 2016. 

12. The applicant applied for the current Remaining Relative visa on the 2 September 2019. As the date of application is three and a half years after the relevant date and outside of the twelve-month period allowed under clause 3002, the applicant does not meet cl.835.211.

13. This was put to the applicant at a hearing. No alternative interpretations of the law was raised. As such I find that cl.835.211 is not met.

14. The Tribunal is required to assess the applicant against all the subclasses in the class of visa (Class BU), when considering the criteria for a Remaining Relative visa (Subclass 835), which include an Aged Dependent Relative (Subclass 838) and Carer (Subclass 836) visa.

15. For all subclasses with Class BU the time of application requirement considered above for the Remaining Relative visa is applicable. As the applicant does not meet the criteria for the subclass 835 he does not meet the same requirement as stipulated in cl.836.211 and cl838.211 for the other visas.  

    DECISION

16. The Tribunal affirms the decision not to grant the applicant an Other Family (Residence) (Class BU) visa.

    Denis Dragovic
    Senior Member