Taiweritiw (Migration)

[2024] AATA 3892

Taiweritiw (Migration) [2024] AATA 3892 (2 September 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Joseph Taiweritiw

CASE NUMBER:  2107258

HOME AFFAIRS REFERENCE(S):          BCC2018/3150680

MEMBER:Ann Duffield

DATE:2 September 2024

PLACE OF DECISION:  Canberra

DECISION: The Tribunal remits the application for a New Zealand Citizen (Family Relationship) (Temporary)(Class UP) Subclass 461 visa, with the direction that the applicant meets the following criteria for a Subclass 461 (Family Relationship) visa

• cl 461.213 of Schedule 2 to the Regulations

Statement made on 02 September 2024 at 2:55pm

CATCHWORDS
MIGRATION – New Zealand Citizen (Family Relationship) (Temporary) (Class UP) visa – Subclass 461 – did not have a substantive visa at the time of application – applicant did all he could to lodge the application on time – there were factors beyond his control – there are compelling reasons to grant the visa – decision under review remitted

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 461.213

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 21 May 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 August 2018. The delegate refused to grant the visa on the basis that the applicant did not meet Schedule 3004 of the Migration Regulations and therefore did not meet the requirements of subclause 461.213(b)(ii).

3. The applicant appeared before the Tribunal on 2 September 2024 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s wife.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The issue in the present case is whether the applicant meets the requirements of cl.461.213(b)(ii).

   Does the applicant meet Schedule 3 criteria, or are there compelling reasons for not applying those criteria?

6. An applicant who is not the holder of a substantive visa at the time of application must meet certain criteria in Schedule 3 to the Regulations. With limited exceptions not relevant to this case, he or she must satisfy Schedule 3 criteria 3001, 3002, 3003, and 3004. In the present case the applicant did not meet the requirements of 3004.

7. It is not in dispute that the applicant in the present case did not have a substantive visa at the time of application. As the applicant did not enter Australia as the holder of a Subclass 995 visa or special purpose visa, the issue in the present case is whether the applicant satisfies the Schedule 3 criteria unless there are compelling reasons for not applying those criteria. These criteria are set out in the attachment to this decision.

   Criterion 3001

8. In order to satisfy criterion 3001, the application for the visa must have been lodged within 28 days of the relevant day. The ‘relevant day’ is defined in 3001(2), as set out in the attachment to this decision.

9. Th applicant held a subclass 461 visa which was granted on 13 August 2013 and ceased on 13 August 2018. He lodged the application subject to this review on 20 August 2018. The last day that he held a substantive visa was, therefore, 13 August 2018. The application for a subsequent visa was lodged within one week of the cessation of his substantive visa.

10. As the visa application was made within 28 days of the relevant day, the applicant satisfies criterion 3001.

    Criterion 3002

11. The application is validly made within 12 months after the relevant day (within the meaning of subclause 3001(2).

12. The application was made 7 days after the relevant day therefore the applicant meets criterion 3002.

    Criterion 3003

13. Criterion 3003 only applies to applicants who have not, on or after 1 September 1994, been the holder of a substantive visa, and on 31 August 1994 was either an illegal entrant or the holder of an entry permit that was not valid beyond that date. The Tribunal is satisfied that the applicant was not such a person, and accordingly criterion 3003 does not apply.  

    Criterion 3004

14. Criterion 3004 of Schedule 3 requires that the Minister be satisfied that the applicant is not the holder of a substantive visa because of factors beyond his or her control, that there are compelling reasons for granting the visa, and that the applicant has complied substantially with the conditions applicable to the last of any substantive visas and any subsequent bridging visa held by the applicant.

15. In addition, the Minister must be satisfied that the applicant would have been able to be granted the visa if the applicant had applied on the day he or she last held a substantive or criminal justice visa; or would have satisfied the criteria when he or she last entered Australia unlawfully; that the applicant intends to comply with any conditions of the visa; and the last visa or entry permit held (if any) 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.

16. Schedule 3004 is satisfied 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.

    Findings and Reasons

17. The applicant first arrived in Australia on 4 August 2000 on a subclass 676 tourist visa. Over the next 3 years he travelled back and forth on a tourist visa until he was granted a subclass 461 visa on 13 August 2013. These visas are valid for five years and must be reapplied for prior to their cessation.

18. The applicant has stated that he attended the department of home affairs office in Brisbane to lodge his application and was provided with incorrect information about the method of lodgement.

19. He continued to attempt, unsuccessfully, to lodge the application in the manner advised by the department prior to contacting the department again to inform them of his lack of success and finally was able to successfully lodge the application on 20 August 2018. In the meantime, he contacted the department to ensure that his migration status was regularised, and he was issued a bridging visa.

20. At the hearing the applicant recounted as best he could the events of some 6 years ago. He told the Tribunal that when he realised that his visa was coming up for renewal he and his wife drove from where they live in the Gold Coast up to the immigration offices in Brisbane to inquire about lodging the application. He says he went up there more than a week before the visa was due to cease.

21. The applicant and his wife told the Tribunal that the applicant doesn’t drive and relies on his wife to take him where he needs to go. Both were working full time during the relevant period, and it was difficult for both of them to find time to drive the two hours to Brisbane, nevertheless they made the journey with plenty of time, they believed, to lodge the application.

22. When they arrived at the immigration offices, after several hours of waiting, they were told that they had to lodge the application online. They drove the two hours back to their home and over the next several days the applicant, with the help of his daughter, tried to lodge the application but were unsuccessful. Eventually the applicant called the immigration offices again and after several attempts to get through was eventually told that the subclass 461 visa needed to be lodged in person and it was not possible to lodge it online.

23. By the time that the applicant and his wife could organise their respective work commitments to make a second two-hour trip to the immigration office in Brisbane, they did not realise that the applicant’s visa had expired. The applicant told the Tribunal that he believed that he was only one day late in lodging the application, not a week as informed by the Tribunal.

24. The applicant has six children living in Queensland and one daughter in New Zealand. His youngest two are 8-year-old twin daughters. Four of his children are still living at home. He has seven grandchildren. His wife’s entire extended family live in Queensland and they are a close-knit unit who help each other, especially in relation to caring for children and grandchildren.  The applicant and his wife regularly care for his daughter’s two children and are often called in to help with their other grandchildren.

25. The applicant’s two youngest daughters are at school, and he is involved in their daily care. The entire family relies, to some extent, on the applicant and his wife and they are involved in many aspects of their extended family’s activities including regular get-togethers, taking the grandchildren to Saturday morning sports activities, and helping in the maintenance of the homes of his children.

26. The applicant and his family have lived in Australia for over 10 years and have not departed since that time.

    Factors beyond the applicant’s control

27. The applicant began the process of lodging his renewal application for his visa around a week or so prior to its cessation. He and his wife work fulltime and must coordinate their schedules in order to make the long drive to Brisbane together, as the applicant does not have a licence.

28. They attended the office of the immigration department and were told that the applicant must lodge the application online. He believed, as would any reasonable person, that this advice was correct, and he had plenty of time to make the online lodgement. However, his attempts to do so over several days after returning from his visit to the department in Brisbane, were unsuccessful.

29. Again, after several attempts over a few days, he was finally able to contact the department again and seek further advice about how to lodge the application. He was told that it was not possible to lodge a subclass 461 visa online and that he must return to the immigration offices and lodge it in person.

30. Again, both the applicant and his wife had to find a suitable time that they could both take off their full-time jobs to make the long drive to Brisbane where they eventually lodged the application one week after the cessation of his substantive visa. The applicant believed that he lodged the application within a day or so of it being due.

31. In the Tribunal’s mind, the applicant did all he could to lodge the application on time and would have done so, and been granted the visa, but for the incorrect advice provided to him by departmental officials. The Tribunal is therefore satisfied that he has demonstrated that there were factors beyond his control that prevented the lodgement of the application prior to the cessation of his substantive visa.

    whether there are compelling reasons for granting the visa

32. The applicant has held a subclass 461 visa since arriving in Australia. He has not been unlawful at any time and has complied with the conditions of his previous subclass 461 visa and his bridging visas over the relevant period. He has lived in Australia with his wife for over ten years. They have seven children and seven grandchildren together and four of his children still live with him and his wife at home. His wife’s extended family reside here, and the families are closely involved and share a strong emotional bond.

33. Despite his best efforts the applicant’s several attempts to lodge his application on time were thwarted by the department’s incorrect advice. In the Tribunal‘s mind, given the circumstances, and taking into account the applicant’s strong and long connection to Australia, the Tribunal is satisfied that there are compelling reasons to grant the visa.

34. The Tribunal is satisfied that the applicant meets the requirements of Schedule 3 criteria 3001, 3002, 3003 and 3004.

    DECISION

35. The Tribunal remits the application for a New Zealand Citizen (Family Relationship) (Temporary)(Class UP) Subclass 461 visa, with the direction that the applicant meets the following criteria for a Subclass 461 (Family Relationship) visa

    • cl 461.213 of Schedule 2 to the Regulations

    Signed

    Ann Duffield
    Senior Member