Sandhika (Migration)

[2019] AATA 6227

Sandhika (Migration) [2019] AATA 6227 (28 October 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT: Mrs Swaran Sandhika

CASE NUMBER:      1729582

DIBP REFERENCE(S):        BCC2016/2831725

MEMBER:Ann Duffield

DATE:28 October 2019

PLACE OF DECISION:        Brisbane

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 28 October 2019 at 10:27am

CATCHWORDS
MIGRATION – refusal – New Zealand Citizen (Family Relationship) (Temporary) (Class UP) visa – Subclass 461 –applicant was not the holder of a substantive visa at time of application – applicant fails to satisfy Schedule 3 criteria – no compelling reasons to waive the criteria – decision under review affirmed

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 461.213, Schedule 3, PIC 3004

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 Immigration on 3 November 2017 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).

2. The visa applicant applied for the visa on 24 August 2016. The delegate refused to grant the visa on the basis that the applicant lodged the application at a time when she was not the holder of a substantive visa, thus, failing to meet clause 461.213(b)(ii) of the Migration Regulations (the Regulations). Pursuant to cl.461.213(b)(ii) if the application is made in Australia, and the applicant was not the holder of a substantive visa at the time, the applicant fails to satisfy Schedule 3 criteria, including criterion 3004.

3. The applicant’s substantive visa had ceased three days prior to the lodgement of her visa application. The delegate found that there were no factors beyond the applicant’s control that resulted in her not being the holder of a substantive visa at the time of her application. As a result the applicant did not meet criterion 3004 or Schedule 3 to the Regulations and the application was refused.

4. The applicant appeared before the Tribunal on 11 October 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s husband.

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

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

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The issue in the present case is whether the applicant met criterion 3004 at the time of her application. That criterion is as follows:

   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.

2. In coming to its decision the Tribunal has considered all the information before it, being materials contained within the Department file, written submissions and oral evidence from the applicant, including submissions received after the hearing. They are referred to, where relevant, in the reasons and findings below.

3. It is not at issue that the applicant’s visa ceased on 19 August 2016 and that her application was not made until 24 August 2016. At the time of application, therefore, the applicant was not the holder of a substantive visa, or indeed, of any visa.

4. The applicant made written submissions to the Tribunal, which were subsequently reaffirmed at hearing, in relation to each of the criteria. She states that there are  compelling reasons to grant the visa as she works full time as a neo-natal nurse. She claims that she cannot leave her job as patients would be at risk. She also states that if she takes leave she may not get her job back and she is required to work in order to support her family. The applicant also claims that she cannot leave her children.

5. The Tribunal has considered these matters. There is no evidence that the applicant, should she be required to take leave in order to lodge a further application off shore, would not be replaced temporarily or lose her job. The applicant told the Tribunal that she is entitled to annual as well as long service leave, both of which can be taken at full pay.

6. The applicant submitted that it will take more than 20 months to process her visa offshore and she would therefore have to resign from her job. There is no evidence before the Tribunal that the application would take that long to process and given the circumstances of this refusal it would be the Tribunal’s expectation that the Department would treat these matters expeditiously when required.

7. The applicant and her husband told the Tribunal that they both worked shifts and the applicant works a night shift. The Tribunal asked the applicant who looked after the children during these times and she told the Tribunal that her mother in law lives with them and she looks after the children. The parties gave no evidence that the applicant’s mother in law would be moving out or that she would otherwise be unable to continue with the current arrangements for looking after the children should the applicant be required to go offshore to lodge a further application.

8. The Tribunal accepts that the applicant and her family will be inconvenienced should she be required to lodge her application offshore. However the Tribunal is not satisfied that the reasons given amount to compelling reasons such that the Tribunal would be moved to waive the criteria. Even if it did, the requirements of criterion 3004 mean that each of the conditions be met, not just one.

9. The applicant made submissions to the Tribunal, and given oral evidence, that the reason she lodged the application late was because she could not wait on the phone for long periods of time, on the two occasions she attempted to contact the Department. The Tribunal does not consider this to be a circumstance  beyond the applicant’s control. The Tribunal considers that the applicant knew her visa was due to expire, and while she claims she believed it was not until September 2016, the Tribunal does not accept this. Prior to the expiration of her substantive visa, the applicant had recently travelled overseas in June and July of 2016. The Tribunal put to her that, at that stage, she must have confirmed the validity of her visa and her ability to return from her overseas journey. She said that she did not check but that it had crossed her mind.

10. The Tribunal does not accept that the applicant would not have made the relevant inquiries, prior to her travelling overseas, to ensure that she would be able to return to Australia. This account is further confirmed that the applicant’s timing in relation to her alleged attempts to call the immigration on 16 and 17 of August 2016. The applicant claims that when she eventually made telephone contact with the Department, she was advised that the visa had already expired.

11. The applicant submits that as she had attempted to confirm her visa validity on 16 and 17 August 2016, while she still had a valid visa, the Tribunal should consider that she held a substantive visa at the relevant time. The Tribunal considers this something of an overreach as, in the first instance, there is no evidence before the Tribunal that the applicant made the calls she claims to have made to the Department and, even if there was, the Regulations require that the application be lodged whilst holding a substantive visa, not merely that inquiries are made as to the validity of a visa held.

12. The Tribunal does not accept that there are compelling reasons outside the applicant’s control for not lodging the application whilst she was still the holder of a substantive visa.

13. The Tribunal is satisfied that the applicant has complied with other visa conditions whilst she previously held a substantive visa and that she would do so if she were to be granted a further visa. The Tribunal is also satisfied that the applicant would have been entitled to the grant of the visa if she had lodged the application whilst she held a substantive visa.

CONCLUSIONS

1. The Tribunal is not unsympathetic to the applicant’s plight, however, it has no discretion to waive the individual elements of the criterion 3004. As discussed earlier, the criterion requires that the applicant meet each of the conditions (a) through to (h). As the Tribunal has found that the applicant does not meet 3004(c) or 3004(d), it follows that the applicant does not meet the requirements for the grant of the visa.

DECISION

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

Ann Duffield

Senior Member