Tan (Migration)

[2022] AATA 1485

Tan (Migration) [2022] AATA 1485 (31 May 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Pei Jun Tan

REPRESENTATIVE:  Mr Eric Kwong Chung Wong (MARN: 9577195)

CASE NUMBER:  2120123

HOME AFFAIRS REFERENCE(S):          BCC2019/2729214

MEMBER:Naomi Schmitz

DATE:31 May 2022

PLACE OF DECISION:  Melbourne

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

· cl. 461.212 of Schedule 2 of the Migration Regulations

Statement made on 31 May 2022 at 9:30am

CATCHWORDS

MIGRATION – New Zealand Citizen (Family Relationship) (Temporary) (Class UP) visa – Subclass 461 New Zealand Citizen Family Relationship (Temporary) – applicant no longer a member of the family unit – not the holder of a substantive visa – decision under review remitted         

LEGISLATION

Migration Act 1958, ss 65, 360, 362
Migration Regulations 1994, Schedule 2, cls 461.212, 461.221; rr 1.05, 1.12

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 December 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 24 May 2019. The delegate refused to grant the visa on the basis that the applicant did not satisfy cl. 461.212 of Schedule 2 of the Migration Regulations 1994 (Cth) (the Regulations).

3. On 29 December 2021 the applicant applied to the Tribunal for a review of the refusal decision. The applicant provided the Tribunal with a copy of the delegate’s decision record.

4.    On 13 May 2022, the Tribunal invited the applicant to appear at a Tribunal hearing commencing at 9:30am on 3 June 2022 to give evidence and present arguments relating to the issues arising in relation to the decision under review. The Tribunal also advised the representative that various documents had been submitted to the Tribunal but were not legible. The Tribunal requested that any legal submissions in support of the application for review be provided to the Tribunal in one consolidated, paginated document, and be accompanied by any supporting evidence.

5.    On 20 May 2022 the representative filed written submissions; submissions from the applicant; a statutory declaration from the applicant, the applicant’s previous Subclass 461 visa grant notice dated 5 June 2014 (valid until 5 June 2019), a bridging visa grant notice dated 27 May 2019; the applicant’s Visa Entitlement Verification Online (VEVO) visa details check dated 14 May 2022; highlighted travel movement records obtained from the Tribunal pursuant to a s.362A request; the applicant’s pay slips from 20 May 2019 until 2 June 2019 and 18 April 2022 until 1 May 2022; the applicant’s birth certificate; the applicant’s academic transcript from the Auckland University of Technology; the applicant’s Form 147 in relation to her Subclass 461 visa and various migration legislation.

6.    The Tribunal considered the information provided by the representative, in addition to the information in the Departmental and Tribunal file. The Tribunal is satisfied that based on the information available to it, it can make a decision favourable to the applicant without proceeding to a hearing, pursuant to s.360(2)(a) of the Act.

1. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration with a direction that the applicant meets cl. 461.212.

   CONSIDERATION OF CLAIMS AND EVIDENCE

2. The issue in the present case is whether the applicant satisfies cl. 461.212. 

3. As the primary applicant at the time of application the applicant must satisfy cl. 461.212 of the Regulations.

4. Clause 461.212 stipulates the following:

   (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 for a 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).

5. Subclause 461.212(1) has the effect that the applicant must meet the requirements of subclause (2), (3) or (4).

6. The applicant concedes that she does not meet cl.461.212(2) being a member of a family unit of a subclass 444 visa holder. Departmental records as outlined in the delegate’s decision record show that the applicant’s claimed family head and father, Mr Kok Tan is an Australian citizen and not the holder of a Subclass 444 (Special Category) visa . As such the visa applicant does not satisfy cl. 461.212(2).

7. The applicant however submits that she satisfies subclause 461.212(3).

8. The applicant submits that she satisfies 461.212(3), as at the time of application the applicant was in Australia as the holder of a subclass 461 visa which was valid until 5 June 2019. In support the applicant provided her Subclass 461 grant notice dated 14 May 2019 and travel movement records obtained by the Tribunal.[1] The applicant was no longer a member of the family unit of the family head, her father, as she was 26 years of age and working full-time as a Scientist Officer in Sydney, with a gross earnings of approximately $2,500 per fortnight. [2] Accordingly, the applicant does not satisfy Reg. 1.12(2)(b)(iii) and Reg. 1.05A(2)(b) as she was over 23 years of age and was not wholly or substantially reliant on her father for financial support due to being incapacitated for work due to the total or partial loss of her bodily or mental function. The applicant also claims that she had not become a member of the family unit of another person, due to being single and not in a spousal or defacto relationship.[3]

   [1] Bridging visa grant notice dated 27 May 2019; Visa Entitlement Verification online (VEVO) visa details check dated 14 May 2022; Subclass 461 visa grant notice dated 5 June 2014 and travel movement records

   [2] Submissions by visa applicant and pay slips 20 May 2019 until 2 June 2019

   [3] Statutory declaration by the visa applicant

9. The Tribunal has carefully considered all the evidence and accepts there is independent and credible evidence that corroborates the applicant’s claims. The Tribunal is satisfied that the applicant was the holder of a Subclass 461 visa at the time of application, as evidenced by her visa grant notice and that she was no longer a member of the family unit due to her age and not being incapacitated due to her bodily or mental function as indicated by her being gainfully employed full-time. The Tribunal is also satisfied that the applicant had not become the member of a family unit of another person and was single at the time of application. The Tribunal further notes there is no evidence to the contrary. Accordingly, the Tribunal is satisfied that the applicant at the time of application met cl. 461.212(3).

10. The applicant further submits that she continues to satisfy 461.212(3), as at the time of decision she is not the holder of a substantive visa, but is the holder of a bridging visa A (Subclass 010) and her last substantive visa was a Subclass 461 visa.[4] She submits she continues not to be a member of the family unit of her father due to her age and not being incapacitated. The applicant continues to work full-time as a Scientific Officer in Sydney, earning a gross income of $3,352 per fortnight.[5] The applicant claims to be single and not in a spousal or defacto relationship with any person.[6]

    [4] Bridging visa A grant notice dated 27 May 2019 and travel movement records

    [5] Payslips from 18 April 2022 until 1 May 2022

    [6] Statutory declaration by visa applicant

11. The Tribunal has considered the above evidence and is satisfied that there is cogent evidence that the applicant satisfies cl.461.212(3) at the time of decision. The Tribunal accepts that the applicant is not the holder of a substantive visa and that the last substantive visa held by the applicant was a Subclass 461 visa as evidenced by her bridging visa grant notice, VEVO online portal, Subclass 461 grant notice and travel movement records obtained by the Tribunal. The Tribunal further accepts that the applicant at the time of decision is no longer a member of the family unit of the person to whom the applicant was granted a Subclass 461 visa due to being aged 30 years and not being incapacitated, as demonstrated by her being employed full-time. The Tribunal accepts that the applicant continues to be single and has not become the member of the family unit of another person. The Tribunal notes there is no evidence to the contrary.

12. The applicant does not rely on cl. 461.212(4). Clause 461.212(4) requires the applicant to be outside of Australia at the time of application, that they are no longer a member of the family unit of the person in relation to whom they were granted the previous Subclass 461 visa and for other considerations to be satisfied. As the applicant was in Australia at the time she lodged the application, the applicant does not meet cl. 461.212(4). The Tribunal is therefore not satisfied that the applicant meets cl. 461.212(4).

13. Given the findings above, the Tribunal remits the matter with a direction that the applicant meets cl. 461.212. The Tribunal is also satisfied that the applicant meets cl.461.221 of the Regulations.

    DECISION

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

    ·cl. 461.212 of Schedule 2 to the Regulations.

    Naomi Schmitz
    Member