Mehta (Migration)

[2022] AATA 2710

Mehta (Migration) [2022] AATA 2710 (1 August 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Devendrakumar Sevantilal Mehta

REPRESENTATIVE:  Ms Latifa Al-Haouli (MARN: 1175724)

CASE NUMBER:  2112756

HOME AFFAIRS REFERENCE(S):          BCC2019/575253

MEMBER:M. Edgoose

DATE:1 August 2022

PLACE OF DECISION:  Melbourne

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

Statement made on 01 August 2022 at 11:09am

CATCHWORDS
MIGRATION – New Zealand Citizen (Family Relationship) (Temporary) (Class UP) visa – Subclass 461 (New Zealand Citizen Family Relationship (Temporary)) – member of family unit – father not family member of sponsor as defined in regulations – request for referral for ministerial consideration not granted – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 351
Migration Regulations 1994 (Cth), r 1.12, Schedule 2, cls 461.212, 461.221

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 3 September 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 20 February 2019. The delegate refused to grant the visa on the basis that the applicant did not meet the requirements of s 461.212 and s 461.221 as the delegate was not satisfied that the applicant was a member of the unit of a New Zealand citizen as defined under the Regulations.  

3. The applicant appeared before the Tribunal on 1 August 2022 to give evidence and present arguments. The Tribunal also took oral evidence from Mr Bhavesh Devendrakumar Metha, the sponsor and son of the applicant. The Tribunal hearing was conducted with the assistance of an interpreter in the Gujarati and English languages.

4. The applicant was represented in relation to the review.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. Reg 1.12 Member of the family unit

   (1) This regulation has effect for the purposes of the definition (the main definition) of member of the family unit in subsection 5(1) of the Act.

   General rule

   (2) A person is a member of the family unit of another person (the family head) if the person:

   (a) is a spouse or de facto partner of the family head; or

   (b) is a child or step-child of the family head or of a spouse or de facto partner of the family head (other than a child or step-child who is engaged to be married or has a spouse or de facto partner) and:

   (i) has not turned 18; or

   (ii) has turned 18, but has not turned 23, and is dependent on the family head or on the spouse or de facto partner of the family head; or

   (iii) has turned 23 and is under paragraph 1.05A(1)(b) dependent on the family head or on the spouse or de facto partner of the family head; or
   (c) is a dependent child of a person who meets the conditions in paragraph (b).

   This sub regulation has effect subject to the later sub regulations of this regulation.

7. On 20 February 2019 the applicant lodged an application for a New Zealand (Family Relationship) (Temporary) (Class UP) subclass 461 visa on the grounds of being a member of the family unit of, Bhavesh Devendrakumar Mentha, the applicant’s son and holder of a Special Category (Subclass TY-444) visa.

8. The Tribunal is satisfied that the applicant is the father of the New Zealand citizen.

9. In this matter the applicant to be considered a member of the family unit must be the spouse, de facto partner, or in certain circumstances the child, step-child or dependent, of the family head. The applicant in this matter is the father of the New Zealand citizen and not the family head and therefore does not meet the requirements of reg 1.12.

10. At hearing the applicant confirmed to the Tribunal that his son is a New Zealand citizen and that he is the visa applicant. The applicant understood that he did not meet the definition of being a member of the family unit and therefore did not meet the requirements of reg 1.12.

11. The applicant told the Tribunal that since his wife passed away, he came to Australia to live with his son. He further mentioned that if he has to return to India he has no home to go to and that he would have to live with friends.

12. The applicant’s son, the sponsor, stated to the Tribunal that he was shocked that his father’s visa had been refused. He asked if the Tribunal would consider referring the matter to the Minister for Ministerial intervention. The Tribunal considered the sponsors requested however informed the sponsor that the Tribunal would not be referring this matter to the Minister.

13. The applicant has requested that the Tribunal refer the case to the Department for consideration by the Minister pursuant to s 351 which gives the Minister a discretion to substitute for a decision of the Tribunal another decision that is more favourable to the applicant, if the Minister thinks that it is in the public interest to do so. The Tribunal considered the applicant’s request however informed the applicant that the Tribunal would not be referring this matter to the Minister given that he did not meet the requirements of the visa at time of application and at time of decision. 

14. The Tribunal has considered the applicant’s case and the ministerial guidelines relating to the discretionary power set out in the Department’s Procedures Advice Manual (PAM3) but has decided not to refer the matter. The Tribunal notes that the applicant can still make a request directly to the Minister.

15. The applicant’s representative told the Tribunal that prior to the hearing she had informed the applicant that he did not meet the requirements for the visa in which he had applied for.

16. 461.21 Criteria to be satisfied at time of application

    461.212

    (1) The applicant meets the requirements of subclause (2), (3) or (4).

    (2) An applicant meets the requirements of this subclause if the applicant is a member of the family unit of:

    (a) a person, other than an eligible New Zealand citizen, who is in Australia as the holder of a Subclass 444 (Special Category) visa; or

    (b) a person, other than an eligible New Zealand citizen, who:

    (i) is outside Australia; and

    (ii) will be accompanying the applicant to Australia; and

    (iii) will, on entry, be the holder of a special category visa.

    (3) An applicant meets the requirements of this subclause if the applicant:

    (a) either:

    (i) is in Australia as the holder of a Subclass 461 (New Zealand Citizen Family Relationship (Temporary)) visa; or

    (ii) is not the holder of a substantive visa and the last substantive visa held by the applicant was a Subclass 461 visa; and

    (b) is no longer a member of the family unit of the person in relation to whom the applicant was granted a Subclass 461 visa; and

    (c) has not become a member of the family unit of another person (whether or not the applicant is still a member of the family unit of that other person).

    (4) An applicant meets the requirements of this subclause if the applicant:

    (a) is outside Australia; and

    (b) either:

    (i) the applicant was lawfully present in Australia as the holder of a Subclass 461 visa fora period of, or periods that total, not less than 2 years in the period of 5 years immediately before the application for the visa; or

    (ii) the Minister is satisfied that the applicant:

    (A) has substantial business, cultural, employment or personal ties with Australia which are of benefit to Australia; and

    (B) has not been absent from Australia for a continuous period of 5 years or more immediately before the application for the visa, unless there are compelling reasons for the absence; and

    (c) on last departure from Australia was a holder of a Subclass 461 visa; and

    (d) is no longer a member of the family unit of the person in relation to whom the applicant was granted a Subclass 461 visa; and

    (e) has not become a member of the family unit of another person (whether or not the applicant is still a member of the family unit of that other person).

17. As the Tribunal is not satisfied that the applicant meets reg 1.12 the applicant therefore does not meet the requirements of cl 461.212(2), (3) or (4). 

18. As the Tribunal is not satisfied that the applicant meets the requirements of cl 461.212(2), (3) or (4) he therefore does not meet the requirements of cl 461.212(1).

19. 461.22 Criteria to be satisfied at time of decision 

    461.221 

    The applicant continues to satisfy the criterion in subclause 461.212(1).

20. Given this the Tribunal is satisfied that the applicant does not meet cl 461.221.

    DECISION

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

    M. Edgoose
    Member