Teklemaryam (Migration)

[2021] AATA 2483

Teklemaryam (Migration) [2021] AATA 2483 (22 April 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Helen Yemane Teklemaryam

CASE NUMBER:  1933461

HOME AFFAIRS REFERENCE(S):          BCC2017/2749893

MEMBER:M. Edgoose

DATE:22 April 2021

PLACE OF DECISION:  Melbourne

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 22 April 2021 at 8:36am

CATCHWORDS
MIGRATION –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, cl 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 16 November 2019 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 applicant applied for the visa on 1 August 2017 on the grounds of being a member of the family unit of a New Zealand citizen, Dawit Kiros Shibeshi, who is currently in Australia as the holder of a TY-444 visa.

3. The delegate refused to grant the visa on 16 November 2019 on the basis that the visa applicant did not satisfy cl.461.213(b)(ii) and Public Interest Criterion (PIC) 3004.

4. The applicant appeared before the Tribunal on 21 April 2021 to give evidence and present arguments.

5. The applicant was represented in relation to the review by her representative.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. Part 461 of Schedule 2 to the Migration Regulations 1994 (the Regulations) sets out the criteria the applicant was required to meet for the grant of a Subclass 461 visa at time of application. The applicant was required to satisfy cl.461.213(b)(ii) in this matter and PIC 3004.

8. The applicant confirmed at hearing that she first arrived in Australia on 16 August 2012 as the holder of a Subclass 461 visa. This visa was granted on 11 June 2012 and ceased on 11 June 2017. The applicant remained in Australia unlawfully after her Subclass 461 visa ceased on 11 June 2017. On 1 August 2017 the applicant submitted this visa application which was refused by the delegate on 16 November 2019 and is the subject of this review. On 25 July 2017 the applicant was granted a Bridging visa E (Subclass 050) with several conditions which ceased on 8 August 2017. The applicant was granted a further Bridging visa E (Subclass 050) on 10 August 2017 which ceased on 14 June 2018 with several conditions. The applicant’s current Bridging visa E (Subclass 050) was granted on 14 June 2018.

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

9. 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, 3003 and 3004 unless the Minister is satisfied that there are compelling reasons for not applying those criteria: cl.461.213(b)(ii).

10. 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 3004

11. 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. 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.

12. The applicant confirmed at hearing that the date the last substantive visa ceased was on 11 June 2017. The applicant lodged her visa application on 1 August 2017. The visa application was refused on 16 November 2019 and is the subject of this review.

13. In order to meet criterion 3004 of Schedule 3 the applicant is required to demonstrate that she was not the holder of a substantive visa at the time of lodgement because of factors beyond her control.

14. The applicant at the time of submitting her application for a bridging visa to the Department stated that:

    A you know my visa subclass 461 which I can work and live in Australia for five years and every five years I should apply to renew it. However I mistaken or I have confused with the entry stamp date and granted visa date. Which I thought the five years term is counted from the date I have arrived in Australia 16/08/2012, that why I want to apply sometimes on July 2017 and I found been told by the immigration officer my visa expired. It was a big mistake in my life and he advised me to apply again which is I did am waiting (Dept File 78).

15. The applicant confirmed at hearing that she had made a “mistake” at time of the application. The Tribunal does not accept that making a “mistake” is a factor beyond the applicant’s control.

16. The Minister’s delegate wrote to the applicant on 10 October 2019 and requested the applicant provide reasons and evidence of the circumstances that were both beyond her control and were compassionate and compelling that prevented her from applying for the Subclass 461 visa while not the holder of a substantive visa. At time of the delegate’s decision the applicant had not provided a response.

17. At hearing the applicant informed the Tribunal that her husband was away at time of application, that she had a limited understanding of the English language and she was taking care of her children. The Tribunal is not satisfied that the applicant’s husband being away, having a limited understanding of the English language and taking care of her children were factors beyond the applicant’s control, which led to her not being the holder of a substantive visa when she lodged the visa application under review.

18. The applicant confirmed that the Subclass 461 visa grant and cease dates were clearly stated. Therefore, the Tribunal does not accept that the applicant was confused about the grant and cease dates of the visa.

19. Given the above, the Tribunal finds the applicant does not meet criterion 3004(c): cl.461.213(b)(ii). As the applicant has failed to meet criterion 3004, the Tribunal is not required to consider the remaining Schedule 3 criteria.

20. For the above reasons, the applicant does not satisfy criterion 3004.

21. Accordingly, it follows that the applicant does not satisfy cl.461.213.

22. As the applicant does not satisfy cl.461.213 of Schedule 2 (as per cl.461.21), the applicant does not satisfy the criteria for the grant of a New Zealand Citizen (Family Relationship) (Temporary) (Class UP) (Subclass 461) visa.

    DECISION

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

    M. Edgoose
    Member

    
    

    ATTACHMENT – Extract from Migration Regulations 1994

    Schedule 3

    3001

    (1)The application is validly made within 28 days after the relevant day (within the meaning of subclause (2)).

    (2)For the purposes of subclause (1) and of clause 3002, the relevant day, in relation to an applicant, is:

    (a)if the applicant held an entry permit that was valid up to and including 31 August 1994 but has not subsequently been the holder of a substantive visa — 1 September 1994; or

    (b)if the applicant became an illegal entrant before 1 September 1994 (whether or not clause 6002 in Schedule 6 of the Migration (1993) Regulations applied or section 195 of the Act applies) and has not, at any time on or after 1 September 1994, been the holder of a substantive visa — the day when the applicant last became an illegal entrant; or

    (c)if the applicant:

    (i)       ceased to hold a substantive or criminal justice visa on or after 1 September 1994; or

    (ii)      entered Australia unlawfully on or after 1 September 1994;

    whichever is the later of:

    (iii)      the last day when the applicant held a substantive or criminal justice visa; or

    (iv)    the day when the applicant last entered Australia unlawfully; or

    (d)if the last substantive visa held by the applicant was cancelled, and the Tribunal has made a decision to set aside and substitute the cancellation decision or the Minister's decision not to revoke the cancellation — the later of:

    (i)       the day when that last substantive visa ceased to be in effect; and

    (ii)      the day when the applicant is taken, under sections 368C, 368D and 379C of the Act, to have been notified of the Tribunal's decision.

    3003

    If:

    (a)the applicant has not, on or after 1 September 1994, been the holder of a substantive visa; and

    (b)on 31 August 1994, the applicant was either:

    (i)       an illegal entrant; or

    (ii)      the holder of an entry permit that was not valid beyond 31 August 1994;

    the Minister is satisfied that:

    (c)the applicant last became an illegal entrant, or, in the case of a person referred to in subparagraph (b)(ii), last became a person in Australia without 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 the conditions that apply or applied to:

    (i)       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

    (ii)      any subsequent bridging visa; and

    (f)the applicant would have been entitled to be granted an entry permit equivalent to a visa of the class applied for if the applicant had applied for the entry permit immediately before last becoming an illegal entrant or, in the case of a person referred to in subparagraph (b)(ii), if the applicant had applied for the entry permit on 31 August 1994; and

    (g)the applicant intends to comply with any conditions subject to which the visa is granted; and

    (h)the last entry permit (if any) held by the applicant was not granted 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.

    3004

    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.