Tkaczyk (Migration)

[2022] AATA 2336

Tkaczyk (Migration) [2022] AATA 2336 (24 March 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Aleksandra Tkaczyk

CASE NUMBER:  2102377

HOME AFFAIRS REFERENCE(S):          BCC2017/3169656

MEMBER:Michael Judd

DATE AND TIME OF

ORAL DECISION AND REASONS:         24 March 2022 at 11:40 am (WA time)

DATE OF WRITTEN RECORD:                11 May 2022

PLACE OF DECISION:  Perth

DECISION:       The Tribunal remits the application for

reconsideration, with the direction that the

applicant meets the following criteria for a

Subclass 461 visa:

·     cl 461.221 of Schedule 2 to the Regulations

Statement made on 11 May 2022 at 2:11pm

CATCHWORDS
MIGRATION –New Zealand Citizen (Family Relationship) (Temporary) (Class UP) visa – Subclass 461 – applicant is currently a member of the family unit of Craig – Craig is the holder of a subclass 444 special category visa at time of decision – decision under review remitted

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 461.212, 461.221

APPLICATION FOR REVIEW

1. MEMBER:  You had applied for what is called a New Zealand Citizen Family Relationship (Temporary) Visa (Subclass 461).  You had applied for that visa on 31 August 2017.

1. Now, as you are aware, a decision was made in relation to your application on 8 February 2021.  Now, I think it is important to outline the reasons why the delegate refused your particular application.  The delegate was satisfied that you had lodged a valid application for the visa.  You had lodged that visa on the grounds of being a member of the family unit of a New Zealand citizen, being Craig Colin Barnden and that he was, at the time of application, the holder of what is called a TY444 visa.  Now, I do not see there were any issues about Craig’s (indistinct) as a New Zealand citizen at that time.  I accept that he is a New Zealand citizen.  I also accept that he is still currently (indistinct words) to a TY444 visa.

1. Now, the delegate was not satisfied that on the date of their decision, that you met the legal requirement in subclass 461.221 in Schedule 2 of the Regulations and that relates to whether you are the member of a family unit of a New Zealand citizen as at time of decision.  Perhaps strangely, the delegate was satisfied that at the time you applied, you had satisfied the requirements, so it was really just a time of decision consideration.

1. Now, it seems that on 23 January 2020, the Department had written to you regarding this issue as to time of decision and whether you were a member of the family unit of Craig at that time.  You were given a 28-day timeframe to provide a response.  On 10 March 2020, the Department records indicated that you did provide updated bank statements up until 2019 but there was no other evidence provided.  For reasons that are not entirely clear to me, the delegate was not satisfied that you were at time of decision the member of a family unit of a New Zealand citizen in Australia and therefore was not satisfied you continued to meet the requirements for subclass 461.212(2).  So, they are the reasons.

1. Now, I told you at the beginning that I am not bound by the reasoning of a delegate, or factfinding of a delegate, I make my own decisions.  In coming to a decision about your matter, I have considered everything that has been placed before this tribunal, of which there has been a considerable amount of information in the form of photographs, account records, statements from people that know you and so forth.  I have read all of that information.

1. I carefully considered the evidence that you gave today over about one hour.  I spoke briefly to your partner also and I have considered the arguments as to why the visa should be granted.  As I said earlier, I am considering your application as if I were that original decision-maker.  I have followed the same laws and the same regulations that that person had to.  I invited you to participate in a hearing because I was not able to make a clear decision on what I had before me, so I needed to hear from you and any witnesses.  What I have done is I have given you the opportunity to give evidence and present arguments related to the issues.

1. As I said to you earlier, if not for the pandemic we would be speaking face to face in an appropriate hearing room.  That is not possible due to the COVID pandemic restrictions at the moment.  But, as I said, my ongoing obligation is to make sure that you receive a fair and a just hearing.  I had noted that notwithstanding you are Polish, your command of English was very good.  Also, your written communications were very good.  There was no need for an interpreter.

1. You provided a great deal of information particularly in relation to the period post-decision.  You provided evidence as to where you are residing and have been residing and social activities with your partner.  There were also letters or statements from other people who know you and, considered together, I decided should be given some weight in determining if you are a member of the family unit of a New Zealand citizen.

1. We spoke, as I said, earlier today.  You are a 30-year-old lady.  You were born in Poland.  You come from about two hours away from Warsaw.  You told me about your parents.  Effectively, I think, they are separated but living under the same roof.  You went to university in Poland.  You have studied significantly towards the award of a master’s degree in International Business Management.  It seems that you have finished the majority of the component, but you still have a requirement to complete a thesis and that opportunity is still present for you.

1. You told me about your work in Poland.  You had finished working just before you went to New Zealand.  You told me about meeting Craig.  You had met in a social environment.  It seems that you did not have a lot of time together, it might have been only a day or so because he had to return back to Australia soon after.  But, for a period of time you kept in contact with each other through social media.

1. Eventually in about mid-October 2016, by that stage a firm decision had been made by you both for you to travel to New Zealand to be closer to him.  You entered on a tourist visa.  You stayed there for about two months before leaving together to come to Perth.  In fact, you arrived into Perth on 14 December 2016.  You (indistinct words) your accommodation arrangements while you were living in New Zealand and you were living with family of your partner and also you stayed in a hotel for some period.

1. We spoke briefly about your partner’s mother.  I had in fact intended to speak to her.  However, I decided towards the end of your evidence that there was no need to.  But I do note that she was available for me to speak to.  You told me that Craig’s parents are divorced.  It appears he does not have a great deal to do with his father at the moment.  He has two brothers. 

1. I explored with you the reasons for coming to Perth.  It seems that there were more opportunities open to Craig at that particular time given his field of work.  He had worked fairly extensively in the mining industry for a period of time until around about mid-2017.  It seems that in about August 2017, your partner, Craig, suffered a very significant back injury which put him out of action for quite a while, at least a year.  I note that he has settled with the insurer, or his employer, in relation to that injury.  He continues to have back problems.  It is clear to me, when I probed you as to what assistance you had provided, that you did provide a strong level of emotional support to him while he convalesced at home.  In fact, you went to physiotherapy appointments with him which included a pool.

1. You live at an address at 39/22 St George’s Terrace here in the CBD.  It seems to me you have been living there for quite a few years.  The rent is $495 per week.  Nobody else lives with you both.  It is a one-bedroom apartment.  There is no evidence that I can identify that the two of you have lived separately in the past for any significant period at all and I think that should be given some weight in my assessments.

1. We spoke about Craig’s business, Highrise Maintenance Australia.  It is fairly clear to me it is a sole owner operator arrangement.  I understand why there would be reasons that you are not a director or shareholder/officeholder of that particular business.  But it seems that you have been a contact in relation to the business to help Craig also.  You told me about the taxation assessments that are prepared by Simpro Taxation, a lady called Grace, and that she helps with the BAS statements.  You told me that Craig does the physical work in relation to the business and you do what you can to assist which can include administration but also helping him out at the locations and he corroborated that with me also.

1. It seems to me clear, from speaking to the two of you, that you do share plans to eventually move away from Perth and possibly either to Melbourne or the eastern sea border somewhere.  The reason I was given is that the availability of work is probably significantly better in the eastern states than here in Perth.

1. Both of you have said to me that there have been no separations in your relationship whilst you have been living in Perth.  I note that there is no evidence that you did separate.  I was told that you are engaged.  You have been engaged since December 2018.  It seems there have been plans to get married in Europe but, of course, with COVID and so forth, that is a very difficult proposition at the moment.  But that may improve.  Now, you made the point to me that even though you are not married but engaged, you are living as a married couple in any event. 

1. I spoke to Craig for a short period of time.  I spoke to Craig about the business, how he set up the business, his role in the business and your role, Alex, in assisting him.  It is fair to say that you do not have the skills that he has in relation to performance of that work.  But you do contribute in some ways, I accept that.

1. You told me that you have never had time apart.  I accept that when Craig was laid down, after his serious injury, there were frustrations and complexities in your relationship.  But there is nothing to suggest to me that you separated.  I was told by both of you that if the visa were not to be granted, this could be a very difficult impact upon you both.  Craig told me that it could be devastating.

1. So, that was the sum total of the evidence.  As I have said, there was a great deal of evidence that I have had to consider.  One thing I would say in relation to your Wills, I would see a specialist, such as a lawyer, in relation to those Wills.  Because, on my assessment of the Wills, they are not valid Wills. 

1. Now, I am not going to revisit the situation at time of application the Department has made of you at time of application, and I do not intend to revisit it.  I accept that at time of application, you did meet the requirements.  The issue for me as at time of my decision today.  Now, in view of all of the evidence before me, including the evidence that you have given to me, I am well satisfied that you, Alex, are currently a member of the family unit of Craig.  I am satisfied that Craig is a New Zealand citizen in Australia.  I am satisfied that Craig is the holder of a subclass 444 special category visa at time of my decision today.

1. It therefore follows that I am satisfied that, as of today, you do continue to meet the requirements for subclass 461.212(2).  So, that being the case, my decision is that I remit the application, which means send back the application, to the Department for it to reconsider your matter afresh.  So, the short of it is, you have satisfied the time of application requirements for me, you have satisfied the time of decision requirements.  So, you have been successful today.

Michael Judd
Member