KAUR (Migration)

[2021] AATA 343

KAUR (Migration) [2021] AATA 343 (5 February 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Sandeep Kaur

CASE NUMBER:  1928940

DIBP REFERENCE(S):  BCC2018/4672543

MEMBER:Moira Brophy

DATE:5 February 2021

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a New Zealand Citizen Family Relationship (Temporary)(Class UP) (subclass 461) visa.

Statement made on 05 February 2021 at 9:26am

CATCHWORDS
MIGRATION – New Zealand Citizen (Family Relationship) (Temporary) (Class UP) visa – Subclass 461 (New Zealand Citizen Family Relationship (Temporary) – application made more than 28 days after last substantive temporary visa held – no provision to waive requirement – application for protection visa in progress – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 416.213, Schedule 3, criterion 3002

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. The applicant lodged a valid application for a New Zealand Citizen (Family Relationship) (Temporary) (Class UP) subclass 461 visa on 23 October 2018 on the grounds of being a member of the family unit of a New Zealand citizen, Onkar Singh (Client ID 90261183177),who is currently in Australia as the holder of a TY-444 visa.

2. This is an application for review of a decision made by a delegate of the Minister for Immigration on 25 September 2019 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 (the Act). The delegate refused to grant the visa on the basis that the applicant was not able to satisfy clause 461.213 of the Migration Regulations because she was not able to satisfy the Schedule 3 criteria.

3. The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

4. The applicant gave evidence at a telephone hearing on 2 February 2021. The Tribunal also received oral evidence by telephone from Onkar Singh, who is the applicant's husband.  The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

5. The applicant was represented in relation to the review by her registered migration agent. The representative attended the Tribunal hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The New Zealand Citizen Family Relationship Subclass 461 visa allows a non-New Zealand family member of a New Zealand citizen to live and work in Australia for up to five years as long as their New Zealand citizen spouse resides in Australia with them.

8. The issue in this case is whether the application was lodged within the time frame required by the Act.

9. Clause 461.213 applies to applicants who were in Australia at the time the visa application was made. It relevantly requires that the applicant at that time either held a substantive temporary visa of a specified type, or if he or she did not hold a substantive temporary visa, certain additional requirements are met. These are that the last held substantive temporary visa was not a Subclass 403 visa and that the Schedule 3 criteria 3002, 3003, 3004 and 3005 are met.

10. In the present case, the applicant last held a substantive visa (FA-600) on 5 February 2016. She made the current application for a subclass 461 visa on 23 October 2018. Therefore the applicant does not meet cl.461.213, as she did not hold a substantive temporary visa at the time of application, and the last such visa held was not a Subclass 403 or 426 visa. In these circumstances, the applicant must meet the Schedule 3 criteria 3002, 3003, 3004 and 3005, which are extracted in the attachment to this decision.

    Is criterion 3002 met?

11. In order to satisfy criterion 3002, the application for the visa must have been lodged within 28 days of the relevant day. The 'relevant day' is defined as the last day the applicant held a substantive visa.

12. The applicant lodged the current application more than two years after she last held a substantive visa.

13. At the hearing the applicant was provided an opportunity to comment on her circumstances. The applicant indicated that she had applied for a Protection visa and that application had not been finally determined.

14. The Tribunal is satisfied, based on information contained in Departmental records, that the applicant has only ever held a bridging visa since her substantive visa ceased on 5 February 2016.

15. As the visa application was not made within 28 days of the relevant day, the applicant does not satisfy criterion 3002.

16. The Tribunal has no jurisdiction under the Act to waive the requirement that the application be lodged within 28 days of the relevant day.

17. Based on the findings above, the applicant does not meet the requirements for the grant of the visa. The decision under review must be affirmed.

    DECISION

18. The Tribunal affirms the decision not to grant the applicant a New Zealand Citizen Family Relationship (Temporary)(Class UP) (subclass 461) visa.

    Moira Brophy
    Member