Rivas Beiner (Migration)

[2022] AATA 3883

Rivas Beiner (Migration) [2022] AATA 3883 (27 October 2022)

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DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Isabella Carolina Rivas Beiner

CASE NUMBER:  2001584

HOME AFFAIRS REFERENCE(S):         BCC2018/1143393

MEMBER:Alison Mercer

DATE:27 October 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Temporary Business Entry (Class UC) visa for reconsideration, with the direction that the applicant meets the following criteria for a subclass 457 visa:

·Public Interest Criterion 4021 of Schedule 4 to the Regulations for the purposes of cl 457.225 of Schedule 2 to the Regulations.

Statement made on 27 October 2022 at 7:17pm

CATCHWORDS

MIGRATION – Temporary Business Entry (Class UC) – Subclass 457 (Temporary Work (Skilled)) – secondary applicant to father’s primary application – holder of valid passport – attempts to obtain passport through embassy – political situation and COVID lockdowns in home country – passport now issued and copy provided to tribunal – decision made without hearing necessary – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), ss 65, 360(2)(a)

Migration Regulations 1994 (Cth), Schedule 2, cl 457.325(a), Schedule 4, criterion 4021

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 8 January 2020 to refuse to grant the visa applicant a Temporary Business Entry (Class UC) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicant applied for the visa on 10 March 2018. At the time the application was lodged, Class UC contained subclass 457. The criteria for a subclass 457 visa are set out in Part 457 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). The primary applicant for the visa was the applicant’s father, Mr Samuel Augusto Rivas Castillo.

3. The delegate refused to grant the visa on the basis that cl 457.325 was not met, which required that (amongst other things) the applicant met Public Interest Criterion 4021 (PIC 4021) of Schedule 4 to the Regulations. PIC 4021 required that either: (a) the applicant held a valid passport officially issued, that was not in a class of passports specified by the Minister in an instrument for the purposes of PIC 4021, or (b) it would be unreasonable to require the applicant to hold a passport. The delegate noted that the applicant had been requested to provide a Venezuelan passport (as she was a Venezuelan national) but had not done so.

4. The delegate acknowledged that the applicant’s father advised on 21 February 2019 that the Venezuelan Embassy in Canberra was not issuing passports, that it could take a year for a passport to get issued, and that with the political situation in Venezuela, it was impossible for them to contact anybody there to obtain one for the applicant. The delegate noted, however, that the Department advised the applicant’s father by voicemail in August 2019 that it appeared that the Venezuelan government was issuing passports again. In response, the applicant’s father advised on 20 September 2019 that they were finalising the applicant’s consular registration as the first mandatory step to be able to apply for a passport for her. However, by 28 November 2019, the Department had received no update from the applicant’s father.

5. Accordingly, the delegate found that a significant amount of time had elapsed and the applicant had not provided documentary evidence to substantiate their attempts in taking the necessary steps for the issuance of the applicant's passport. In the the absence of a valid passport, the visa could not be granted. The delegate was not satisfied that there were grounds (such as a natural disaster, war or similar) that hindered a passport being issued so did not consider that it was unreasonable to require the applicant to provide one.

6. The Tribunal received a review application from the applicant on 29 January 2020, which was accompanied by a copy of the delegate’s decision and an authority by which she appointed her father as her representative and authorised recipient for correspondence. The applicant also provided a copy of her birth certificate, her father’s Venezuelan passport, and a media article dated 7 June 2019 from the US News and World Report website headed ‘The Latest: US will recognise expired Venezuelan passports.’  

7. On 30 June 2020, the Tribunal wrote to the applicant’s father to request him to provide a copy of the applicant’s passport. He was requested to do so by 14 July 2022. On that date, he responded as follows by email:

   …

   To whom it may concern,

   I would like to inform you that although I have been following Venezuelan processes for my daughter’s passport, we are still unable to provide one. As I’m sure you can understand the situation previously outlined in my correspondences has only been worsening due to the Covid-19 and I have no reasonable expectation for when it might arrive.

   At this stage, we are waiting for Isabella’s Venezuelan birth certificate to be ready and then to apply for an appointment with Venezuelan embassy in Canberra (At this stage due to recent Victorian State directives, I will not be able to make my way to Canberra for at least 6 weeks), and have all the fingerprints and the photo for the passport taken. After which all these will then be sent by the embassy to Venezuela for them to generate and send back the passport.

   I have been calling the embassy several times but communication with them is almost impossible, the calls always go to the mailbox.

   The deadline for them to process the application is also unclear. As an example on the 24th of February I re-sent Isabella’s consular inscription and it was supposed to be ready in 10 days maximum but it took 2 months to have the email confirming that it was ready.

   It is similarly unclear how long it will take Venezuelan immigration to have the passport ready once the Embassy sends all the requirements due to the political, economical turmoil and the impact of the covid-19 on the country (Venezuela is at the moment in a full lockdown to reduce the Covid-19 cases).

   I will keep pushing as much as we can to have this passport as soon as feasible.

   With respect to these adverse restrictions, I would like this honourable tribunal to allow us more time to present Isabella’s passport.

   …

8. On 16 July 2020, the Tribunal wrote to the applicant’s father to extend the period for provision of the applicant’s passport to 11 August 2020.

9. On 10 August 2020, the applicant’s father responded as follows:

   …

   I would like to inform you that although I have been following Venezuelan processes for my daughter’s passport, we are still unable to provide one. As I explained in my last correspondence, this process will take a long time, due to the situation in my country and now the Covid 19 pandemic.

   At this stage, we are still waiting for Isabella’s Venezuelan birth certificate to be ready and then to apply for an appointment with Venezuelan embassy in Canberra (At this stage due to recent Victorian State directives, I will not be able to make my way to Canberra for at least 6 weeks due to the stage 4 lockdown, hopefully by the end of September I will be able to travel to Canberra and have all the fingerprints and the photo for the Isabella’s passport. To then wait for the passport details to be sent by the embassy to Venezuela for them to generate and send back the passport.

   At this stage I cannot still communicate by phone with the embassy however they post on facebook last week, that they are trying to work as fast as they can, and also that due to the Covid 19 the diplomatic currier is taking longer because Venezuela has been heavily affected by the pandemic. So potentially in the next month I think (this is my personal assumption) Isabella’s birth certificate will be ready and we would be able to applied for the appointment in Canberra as soon as Victoria reopen the borders.

   Last week I sent my mother in Venezuela to get more information about how long could take to have the passport back in Australia once is ready from the Saime (Administrative Service of Identification, Migration and Foreigners) but they are close due to the strict lockdown to stop the covid 19.

   I would like to make clear that I do not have any interest on delay Isabella’s passport, before the pandemic our plan was to have this passport as soon as possible to have our holiday and that my parents can meet Isabella for the first time.

   At this stage still is unclear how long it will take to the Venezuelan immigration to have the passport ready once the Embassy sends all the requirements.

   So sorry for again do not have a clear answer, I hope that know that the Embassy is more active all the process can be speed up, and that lockdown in Victoria finish asap to travel to Canberra as soon as I have my appointment.

   I will keep pushing as much as we can to have this passport as soon as feasible.

   With respect to these adverse restrictions, I would like this honourable tribunal to allow us more time to present Isabella’s passport.

   …

10. On 18 August 2020, the Tribunal responded to indicate that an extension of time would be granted, and they should provide the applicant’s passport as soon as possible.

11. On 14 September 2022, the applicant’s father provided a scanned copy of the biodata page of the applicant’s Venezuelan passport, issued to her on 23 July 2022, valid until 23 July 2027.

12. In reaching its decision, the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the applicant on the basis of the material before it, pursuant to section 360(2)(a) of the Act.

13. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

    consideration of LAW, claims and evidence

14. Clause 457.325 requires, amongst other things, that the applicant satisfies PIC 4021 of Schedule 4 to the Regulations.

15. PIC 4021 provides as follows:

    Either: 

    (a)  the applicant holds a valid passport that:

    (i)  was issued to the applicant by an official source; and

    (ii)  is in the form issued by the official source; and

    (iii)  is not in a class of passports specified by the Minister in an instrument in writing for this clause; or  

    (b)  it would be unreasonable to require the applicant to hold a passport.

16. The relevant instrument for the purposes of PIC 4021(a)(iii) is IMMI 18/001 and specifies group passports, damaged passports, passports not valid for migration, passports issued by authorities not recognised by the Australian government as being validly able to issue them, or where recognition of the passport would be contrary to Australian government foreign policy and passports issued by specified countries and/or organisations. The Tribunal is satisfied that passports issued by Venezuela do not fall within any of the categories specified in IMMI 18/001.

17. It is not disputed that at the time of the visa application, and the delegate’s decision, the applicant did not hold any passport. However, she has now been issued with a Venezuelan passport by the Venezuelan government, valid to 23 July 2027. There is no evidence before the Tribunal to suggest that it is not a valid passport validly issued by official sources in the Venezuelan government.

18. Accordingly, the Tribunal is satisfied that the applicant meets PIC 4021 (a)(i), (ii) and (iii), and that (b) does not apply in her case.

19. Given this, the Tribunal finds that the applicant meets PIC 4021 for the purposes of cl.457.325 of Schedule 2 to the Regulations, and the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a subclass 457 visa.

    decision

20. The Tribunal remits the application for a Temporary Business Entry (Class UC) visa for reconsideration, with the direction that the applicant meets the following criteria for a subclass 457 visa:

    ·Public Interest Criterion 4021 for the purposes of cl 457.325 of Schedule 2 to the Regulations.

    Alison Mercer
    Member