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

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).
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.
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 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…

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.

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Details

AGLC: Helu (Migration) [2022] AATA 5240
Case: [2022] AATA 5240
Decision Date: 9 September 2022

CaseChat Overview and Summary

This matter concerned an application for review of a decision to refuse to grant a New Zealand Citizen (Family Relationship) (Temporary) (Class UP) visa (Subclass 461). The applicant, a New Zealand citizen, had lodged an application for this visa but it was deemed invalid due to non-payment of the application charge. The applicant subsequently became an unlawful non-citizen when her previous Subclass 461 visa expired. The Administrative Appeals Tribunal was required to determine whether the applicant met the criteria for the grant of the visa, particularly in circumstances where she did not hold a substantive visa at the time of application.

The primary legal issue before the Tribunal was whether the applicant satisfied criterion 3004(c) of Schedule 3, which requires the applicant to demonstrate that their failure to hold a substantive visa was due to factors beyond their control. Additionally, the Tribunal needed to consider criterion 3004(d) regarding compelling reasons for granting the visa, although this became unnecessary once the first criterion was not met. The applicant also needed to satisfy other requirements, including that she would have been entitled to the visa if she had applied earlier and that she intended to comply with visa conditions.

The Tribunal found that the applicant's visa application was invalid because the application charge was not paid. Despite the applicant's claims of a banking error and insufficient funds, the Tribunal was not satisfied that these were factors beyond her control. The Tribunal noted the lack of independent corroborating evidence, such as bank records, to support the alleged banking issues, and found the applicant's explanation for not providing such evidence, including closing her bank account, to be perplexing and self-serving. Consequently, the Tribunal concluded that the applicant had not demonstrated that her failure to hold a substantive visa was due to factors beyond her control.

As the Tribunal was not satisfied that criterion 3004(c) was met, it did not proceed to consider criterion 3004(d) concerning compelling reasons for granting the visa. Accordingly, the Tribunal affirmed the decision to refuse to grant the applicant the Subclass 461 visa, finding that the applicant did not satisfy clause 461.213.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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 The delegate’s decision[6] summarised the applicant’s visa/immigration history as follows.[6] Delegate’s decision record 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 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. 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. 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. 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. On 30 January 2017, the applicant’s substantive subclass 461 visa ceased. 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. 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. 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.

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 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. The issue in the present case is whether criterion 3004(c) is met. Factors beyond an applicant’s control 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. 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 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 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

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 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) 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. 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.