Helu (Migration)

[2022] AATA 5240

Helu (Migration) [2022] AATA 5240 (9 September 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Asena Helu

CASE NUMBER:  2106333

HOME AFFAIRS REFERENCE(S):          BCC2017/698558

MEMBER:Naomi Schmitz

DATE:9 September 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 09 September 2022 at 11:35am

CATCHWORDS

MIGRATION – New Zealand Citizen (Family Relationship) (Temporary) (Class UP) visa – Subclass 461 New Zealand Citizen Family Relationship (Temporary) – member of the family unit – no substantial visa at the time of application – compelling reasons – factors beyond the applicant’s control – insufficient funds for the application fee – separation from large family – internet access issues – decision under review affirmed 

LEGISLATION

Migration Act 1958, ss 65, 360
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
Montero v MIBP [2014] FCCA 946
McNamara v MIMIA [2004] FCA 1096
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
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 26 April 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 23 February 2017. 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 spouse Sonatane Pasivulangi Helu.

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 and (d) that there were compelling reasons for granting the visa. The delegate found that whilst separation from the applicant’s New Zealand citizen family, including her eight children, while compassionate were not a compelling reason for the grant of the visa. Satisfaction of criterion 3004(c) concerning factors beyond the applicant’s control and criterion 3004(d) are conjunctive and must both be satisfied. Satisfaction of criterion 3004(d) does not negate the need to satisfy criterion 3004(c). The delegate did not consider criteria 3002, 3003 and 3005.

5. On 12 May 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 30 June 2022 the Tribunal wrote to the applicant to invite the applicant under s.360(1) of the Act to appear at a Tribunal hearing commencing at 11:00am on 21 July 2022 to give evidence and present arguments relating to the issues arising in relation to the decision under review. The Tribunal was required to do this because it had considered the information it had and was unable to make a decision favourable to the applicant.

7. On 14 July 2022 the applicant provided a letter to the Tribunal regarding the refusal of her Subclass 461 visa. On 18 July 2022 and 19 July 2022, the applicant provided an email sent from the applicant to the Department dated 20 March 2021 where the applicant claimed she was unable to access her IMMI account to upload a police certificate. On 19 July 2022 the applicant also provided a photograph.

8. The applicant appeared before the Tribunal on 21 July 2022 to give evidence and present arguments.

9. 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  

10. 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 apply

11. 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 criterion 3004(c) is met.

    Factors beyond an applicant’s control

13. Criterion 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[1], 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.

    [1] 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 had 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.[2] 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.[3] Circumstances which constitute ‘compelling reasons’ for not applying the Schedule 3 criteria can arise at any time, including after the visa application is made.[4] 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.[5]

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

    [3] 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]).

    [4] Waensila v MIBP [2016] FCAFC 32

    [5] 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.

    BACKGROUND

23. The delegate’s decision[6] summarised the applicant’s visa/immigration history as follows.

    [6] Delegate’s decision record

24. On 7 March 2010, the applicant arrived in Australia. On 30 January 2012, the applicant was granted a New Zealand Citizen (Family Relationship) (Temporary) Subclass 461 visa which was valid until 30 January 2017.

    First invalid s.461 visa application

25. On 23 January 2017 the Department received an invalid subclass 461 visa application from the applicant as a result of non-payment of the visa application charge.

26. On 24 January 2017, the Department left a voice mail message on the applicant’s telephone requesting that the applicant contact the Department regarding insufficient funds for payment of the visa application charge.

27. On 24 January 2017, the Department also sent an email to the email address authorised in the applicant’s application form, advising the applicant of the attempts to contact the applicant by phone, as well as the insufficient funds for the application fee payment.

28. On 25 January 2017, the Department sent another email to the applicant regarding payment of the application charge payment. The email advised the applicant that if no response was received from the applicant by the close of business that day, the application would be deemed invalid.

29. On 30 January 2017, the applicant’s substantive subclass 461 visa ceased.

30. On 3 February 2017, the applicant’s visa application was deemed invalid due to non-payment of the visa application charge. A notification letter was sent to the applicant’s authorised email address.

31. On 7 February 2017, the applicant contacted the Department regarding the payment issue of the invalid visa application. The applicant was advised that as no payment had been made from the applicant’s bank account, the visa application was determined to be invalid and consequently the applicant was an unlawful-non-citizen. The applicant claimed she had posted a money order on 3 February 2017. The applicant sent an email requesting contact from the Department regarding the applicant’s situation.

32. On 7 February 2017, the Department contacted the applicant by telephone. During the telephone conversation the applicant advised she had no internet access at home so had not checked her emails until that day and had gone to the library to use the internet. Additionally, the applicant advised that on 24 January 2017, the applicant noticed she had received a missed call, however as it showed that it was from a private number the applicant claimed she was unable to return the call. The applicant confirmed that she was receiving voicemails on her phone, however, did not check her messages until Thursday, 2 February 2017 even though the applicant acknowledged she knew she had received a missed call. The applicant claimed on 3 February 2017, that she posted a money order to the Department for the outstanding visa application charge. The applicant stated she did not understand why the visa application payment was unable to be processed and claimed there were sufficient funds in her account to cover the fee. The applicant confirmed she could provide evidence to support this claim.

33. The Department explained to the applicant her options including lodging a further subclass 461 visa application and the additional Schedule 3 requirements that would apply, including the requirement to show with supporting evidence, the factors beyond the applicant’s control that caused the applicant to lodge the application after her previous substantive visa had ceased. Other visa options were also explained to the applicant including a Visitor visa or an offshore subclass 461 visa, however the applicant confirmed her intention was to lodge a valid onshore subclass 461 visa application.

34. At the applicant’s request, the Department also explained how to apply for a Bridging E visa and provided the tracking number details for the returned invalid subclass 461 application pack. The applicant was also advised that she should lodge her valid visa application as soon as possible.

35. On 8 February 2017 the applicant lodged an application for a Bridging E (050) visa which was granted and valid to 15 February 2017.

36. On 16 February 2017 the applicant lodged an application for a Bridging E (050) visa which was granted and valid to 23 February 2017.

    Second s.461 visa application

37. On 21 February 2017, the Department received the applicant’s new subclass 461 visa application. The Department contacted the applicant by telephone to counsel the applicant regarding the need to satisfy Schedule 3 criteria, namely that the applicant demonstrate factors beyond the applicant’s control as to why the applicant did not lodge the application while holding a substantive visa. The applicant was given the option as to whether to proceed with the lodgement of her visa application. The applicant advised the Department that that she wished to proceed with lodging the subclass 461 visa application. The applicant confirmed she had authorised the Department to correspond by email and had arranged for reliable internet so there would be no impediment to the applicant’s ability to access her email account.

38. On 21 February 2017, the Department attempted to contact the applicant regarding payment of the visa application as there were insufficient funds on the applicant’s visa card. The applicant did not respond to the phone call.

39. On 22 February 2017, the Department attempted to contact the applicant again in regard to payment of the visa application as there were insufficient funds on the applicant’s visa card. The applicant again did not respond to the phone call.

1. On 23 February 2017, the applicant contacted the Department and advised that she was aware of the missed phone calls but had provided an email for the purpose of the application processing. The applicant claimed she had sufficient funds in her bank account for the visa application charge but stated she may have left out a digit from the card number provided for payment. The applicant then provided the correct credit card number by email.

2. On 23 February 2017, the applicant lodged a valid application for a subclass 461 visa. At the time of lodging the visa application, the applicant was not the holder of a substantive visa, rather the applicant was the holder of a Bridging E visa.

3. On 18 September 2018, the Department requested the applicant to provide reasons and evidence of the circumstances that were both beyond the applicant’s control that prevented the applicant from applying for this subclass 461 visa while not the holder of a substantive visa and the compelling grounds for granting the visa. The applicant was also requested to state whether the applicant had complied with the conditions of her last held visa, bridging visa or entry permit.

4. On 7 October 2018, the applicant provided the following response:

   a.The applicant claimed it was beyond her control, as the applicant did apply for a visa while her substantive visa was still valid however there was a problem with her debit card so payment of the visa application charge could not occur before her visa validity ceased;

   b.The applicant claimed she contacted the Commonwealth Bank on receipt of the invalid notification from the Department and was informed she had sufficient funds available in her bank account but the bank had issues at the time processing online and phone payments;

   c.The applicant claimed she lodged a new subclass 461 visa application as soon as she knew of her invalid application, sending it by three-day courier post and this application was received by the Department on 23 February 2017;

   d.The applicant claimed she then contacted the Department by phone to provide her bank card details and was able to make the visa application charge payment successfully. The applicant was also advised by the Department to apply for a Bridging visa to regularise her visa status in Australia while her application was being processed;

   e.The applicant claimed there was a two-week delay in the Department notifying her of the invalid application and the fact the applicant provided her application twice is a factor beyond her control as to why she did not lodge her visa application while holding a substantive visa; and  

   f.The applicant claimed to be the holder of a Bridging B visa and complied with the conditions on the visa of no travel and no study and also all the conditions imposed on the applicant’s previous substantive and bridging visas of no study and no travel. The applicant stated she intended to comply with any conditions which may attach to the subclass 461 visa.

   EVIDENCE AT HEARING

5. 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. On 30 January 2012 the applicant was granted a subclass 461 visa which was valid until 30 January 2017. The applicant lodged an application for a temporary visa, a New Zealand Citizen Family Relationship (Temporary) Visa (Class UP461) on 23 February 2017.

6. At hearing the applicant gave evidence that her last substantive visa was a New Zealand Citizen (Family Relationship) (Temporary) (Class UP) Subclass 461 visa which expired on 30 January 2017. The applicant conceded that she applied for the refused visa on 23 February 2019. The applicant confirmed she has previously held four Subclass 676 Visitor visas and one Subclass 461 visa. The applicant confirmed she was aware of the expiry date of her Subclass 461 visa. The Tribunal Member asked the applicant whether she had an IMMI, Visa Entitlement Verification Online (VEVO) account or registered email account with the Department. The applicant confirmed she had an email account which she used to keep in contact with the Department. She confirmed that she has never engaged the services of a representative such as a migration lawyer or agent and has always been responsible for her own visas due to not having the financial resources to pay for representation. She explained to the Tribunal Member that the applicant has eight children.

7. The Tribunal Member asked the applicant how not holding a substantive visa at the time of application for the visa was due to factors beyond the applicant’s control. The applicant stated she believed she had sufficient funds to cover the visa application charge and that her husband was in control of their finances as he was the main income earner at the time. The Tribunal Member put to the applicant that the Tribunal had difficulty accepting that her husband was to blame for there being insufficient funds, as it was the applicant who chose to pay for the visa application by the nominated account and given she was in a spousal relationship with her husband it was well within her control to communicate with him to ensure that there were sufficient funds. The applicant was given a further opportunity to respond, but provided little detail and repeated her husband was in control and maybe transferred money late.

8. The applicant also claimed ‘things just happened with the bank’ and that the system ‘was not working’. The Tribunal Member asked the applicant if she had any financial records or banking evidence to support her claims that there were insufficient funds due to a banking error. The applicant confirmed she had no banking evidence. The Tribunal Member noted that the applicant had over five years to compile and submit financial evidence and queried what the applicant had done in the intervening period. The applicant stated she had closed the bank account five years ago.

9. The Tribunal Member explained that she had reviewed the chronology of communications as outlined in the delegate’s decision record, including the various voice mail messages left on the applicant’s phone and emails and asked why the applicant did not respond to the Department, despite being given multiple opportunities. The applicant stated at the time she was living in the countryside, that the connection was not good, she had no access to the internet and had to go to the Wallan public library and that she had not updated technology on her phone.

10. The Tribunal Member put to the applicant that the applicant confirmed with the Department that she was receiving voicemail messages on her phone but chose not to check them until after the expiry of her substantive visa, on 2 February 2017 and asked how not checking her voicemail for nine days constituted a factor beyond the applicant’s control. The applicant replied that she ‘didn’t have any credits to check voicemail on [her] phone’. She also stated that she did not have the technology at home as she could not afford the internet and relied on accessing a public library.

11. The applicant was provided with an opportunity to identify any other factors beyond the applicant’s control. The applicant claimed there was a courier problem. The Tribunal Member asked the applicant what date the applicant alleged she sent her application. The applicant replied she could not remember the date she sent her visa application. The Tribunal Member asked if she had any evidence of when she sent her visa application. The applicant replied she did not. In relation to the second refused visa application the applicant conceded she provided the incorrect credit card numbers as at the time she was ‘stressing out’.

12. The Tribunal Member asked the applicant what compelling reasons the applicant was relying upon for the grant of the visa. The applicant stated that she has a husband and eight children, six of whom are under 18 years of age. She stated that during COVID-19 her husband lost his job. She claimed that the family would be rendered homeless if her visa were not granted and she had to depart Australia. The Tribunal Member noted the applicant referred to her husband losing his job during the COVID-19 pandemic, and asked about his current employment status. The applicant was evasive and did not directly answer the question, stating ‘I support the entire family’. The Tribunal Member put to her that this did not answer the Tribunal’s question and gave her a further opportunity. The applicant stated her husband was interviewing for jobs.

    CONSIDERATION OF CLAIMS AND FINDINGS

13. The Tribunal has considered the totality of the evidence, including the applicant’s response to the Department’s natural justice letter,[7] the applicant’s oral evidence at hearing and the various communications between the applicant and Department.

    [7] Email from visa applicant to the Department dated 7 October 2018 at 14:43 hours (AEST)

14. The Tribunal does not accept that the applicant was the holder of a substantive visa at the time of application. Although the applicant submitted a visa application that was received by the Department on 23 January 2017, as there were insufficient funds for payment of the visa application charge, the visa application was not valid. The Department left multiple messages and emails with the applicant regarding the same, to which there was no response. On 3 February 2017 the visa application was deemed invalid due to non-payment of the visa application. Accordingly, the applicant is required to satisfy criterion 3004, and for the purposes of the review, demonstrate factors beyond the applicant’s control and compelling reasons for the grant of the visa.

15. The Tribunal has considered the applicant’s claims to the Department and applicant’s oral assertions at hearing that her failure to pay for the visa was due to a banking error with the Commonwealth Bank. The Tribunal does not accept the applicant’s claims as it is not supported by any credible or independent corroborative evidence such as banking records/financial transaction histories or a letter from the bank confirming at the time the bank was experiencing technical problems which affected banking customers. Of significance the Tribunal notes that the applicant has had over five years to collate and submit financial evidence to support these claims. The Tribunal further notes the applicant previously indicated to the Department on 7 February 2017 that she could provide evidence to support her claims of technical interference, but no evidence to date has been provided. To the contrary the applicant has closed her account with the Commonwealth Bank rather than seek financial records, which the Tribunal finds perplexing. The only source of the alleged banking error comes from the applicant. The Tribunal considers these claims to be self-serving and not credible. Overall, the Tribunal is not satisfied and does not accept that there was any banking error or technical problems which caused insufficient funds to pay for the visa application.

16. The Tribunal has considered the applicant’s claims that her husband was in control of the account funds, but does not accept that this was a factor beyond the applicant’s control. It was the applicant who chose to use the nominated account from which funds were to be transferred and the onus is on the applicant to ensure that there are adequate funds to cover any visa application fee. Further, given the applicant was (and continues to be) in a spousal relationship with her husband and resided with him (and continues to reside with him), she could have taken steps to communicate with him to ensure that there were sufficient funds to cover the visa application fee. This is particularly so given the applicant and her husband share eight children together and work together to co-ordinate and support a household. Accordingly, the Tribunal rejects the applicant’s oral assertion and is not satisfied that it constitutes a factor beyond the applicant’s control.

17. The Tribunal has also considered the applicant’s claims that she had technical difficulties including lack of access to the internet and phone credits as a factor beyond the applicant’s control. The Tribunal does not accept that this is a factor beyond the applicant’s control. It is the applicant’s responsibility to nominate a phone number and an email address which the Department can use to communicate with the applicant. Further, it is the applicant’s personal responsibility to ensure that she has sufficient phone credits, phone/internet plans and reliable phone/internet connectivity to receive communication with the Department. If the applicant cannot ensure that she has sufficient means of communication, the applicant could have nominated a third party to facilitate communication (excluding a representative). The Tribunal further notes that the Department discussed this very matter with the applicant, who repeatedly affirmed the phone number and email address the Department were to use to contact the applicant. The applicant’s claims are also undermined by her attending the Wallan public library where she was able to communicate with the Department by email.

18. The Tribunal has also considered the applicant’s claims regarding posting her application by courier and there being a problem/delay. The Tribunal Member found the applicant’s viva voce evidence vague and confusing. The Tribunal does not accept the applicant’s claims as they were not supported by any independent evidence. The Tribunal accepts that the applicant was stressed at the time of her second visa application and provided the incorrect credit card numbers. As this was after the applicant’s last substantive visa application expired, it is not relevant to the 3004(c) criterion. In any event, even if the applicant supplied incorrect credit card details before the expiry of her substantive visa, the Tribunal does not accept that this would constitute a factor beyond the applicant’s control, as it is the applicant’s responsibility to ensure that she provides accurate financial particulars to pay for the visa and these are only details within the applicant’s esoteric knowledge. The Tribunal further notes in the applicant’s response to the natural justice letter that the applicant claimed the Department failed to notify her of the invalid application for two weeks. This was not supported by any independent evidence and is contradicted by the various email communications between the Department as outlined in the delegates’ decision record. The Tribunal does not regard the applicant’s claims to be credible or reliable.

19. Overall, 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 notes that the applicant has been granted a total of five previous visas, including four 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 her prior conduct. Although the Tribunal has great sympathy for the applicant, the Tribunal does not accept any of the reasons offered above as factors beyond the applicants control for not holding a substantive visa at the time of application. Overall, the Tribunal Member did not find the applicant to be a credible or reliable witness. At times the applicant was evasive, vague and provided unsatisfactory evidence.

20. 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 criterion 3004(c). Having made this finding, the Tribunal is not required to consider criterion 3004(d) concerning compelling reasons for granting the visa. The applicant does not satisfy clause 461.213.

    DECISION

21. 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