Tuilotolava (Migration)

[2023] AATA 1966

Tuilotolava  (Migration) [2023] AATA 1966 (24 May 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Sione Tuilotolava

CASE NUMBER:  2217874

HOME AFFAIRS REFERENCE(S):          BCC2022/4359067

MEMBER:Edward Howard

DATE:24 May 2023

PLACE OF DECISION:  Brisbane

DECISION: The Tribunal affirms the decision to refuse to grant the applicant a New Zealand Citizen (Family Relationship) (Temporary) (Class UP) subclass 461 visa.

Statement made on 24 May 2023 at 4:08pm

CATCHWORDS
MIGRATION – New Zealand Citizen (Family Relationship) (Temporary) (Class UP) visa – Subclass 461 New Zealand Citizen Family Relationship (Temporary) – Schedule 3 criteria – no substantive visa for more than 12 months prior to lodgement of visa application – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 461.213; Schedule 3, Criterion 3002

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 26 November 2022 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 14 October 2022. The delegate refused to grant the visa on the basis that the visa applicant did not meet clause 461.213 in Schedule 2 of the regulations.  

3. The applicant appeared before the Tribunal on 4 May 2023, to give evidence and present arguments.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. At the hearing, the applicant provided the following evidence:

   i.The applicant is 27 years of age, his date of birth is 2 February 1994;

   ii.The applicant’s wife, Motusia Toleafoa, is a New Zealand citizen, currently in Australia holding a Special Category (TY-444) visa;

   iii.The applicant first arrived in Australia on 31 October 2018 as the holder of a visitor (Subclass 600) visa, valid until 30 January 2019. The applicant complied with the conditions of that visa;

   iv.The applicant next arrived in Australia on 28 January 2020 again, as the holder of a visitor (subclass 600) visa valid until 28 April 2020;

   v.On 30 April 2020, following the start of the Covid-19 pandemic, the applicant was granted a series of bridging visas (Bridging E (WE-050)) which allowed him lawful status while arrangements were made to depart Australia once Covid-19 border reopening is permitted;

   vi.On 14 October 2022, the applicant lodged, in Australia, an application for a New Zealand Citizen Family Relationship (Temporary) (Subclass 461) visa on the basis of being a member of the family unit of his New Zealand citizen spouse. The applicant was granted an associated Bridging E (WE-050) visa to remain lawful while the application was being processed;

   vii.The applicant has had a series of labouring jobs, mainly in building and construction. He is currently not in employment but is ineligible to receive Centrelink benefits. The applicant’s wife has been employed as a Verification Officer at the Melbourne city branch of ME Bank for a period of approximately six years. In her evidence, the applicant’s wife noted that she had made a rewarding career for herself in banking and that this has enabled her and the applicant to maintain financial stability, given her husband’s visa status.

6. The issue in the present case is whether the applicant meets the relevant Schedule 3 criteria.

7. The applicant concedes that he applied for the Subclass 461 visa on 14 October 2022, approximately two and a half years after his last substantive visa ceased. The applicant informed the Tribunal that his previous substantive visa expired during the Covid-19 pandemic and that he had made plans to leave Australia when the pandemic commenced and was very stressed by the circumstances and uncertain of what to do. He attended a consultation with a migration agent/advisor during the pandemic and was planning to leave when restrictions lifted and then seek to return to Australia.

   Does the applicant meet the relevant Schedule 3 criteria?

8. Relevantly to this matter, cl 461.213 requires the Tribunal to be satisfied that if the applicant was in Australia at the time of application and did not hold a substantive visa, the last substantive visa the applicant held was not a Subclass 403 (Temporary Work (International Relations)) visa in the Domestic Worker (Diplomatic or Consular) stream and the applicant satisfies Schedule 3 criteria 3002, 3003, 3004, and 3005: cl 462.213(b)(ii).

9. In the present case, the applicant did not hold a substantive visa at the time of application and did not previously hold a Subclass 403 (Temporary Work (International Relations)) visa in the Domestic Worker (Diplomatic or Consular) stream. The issue in this case is whether the applicant satisfies Schedule 3 criteria 3002, 3003, 3004, and 3005.

   Assessment against Criterion 3002

10. In order to meet Schedule 3 Criterion 3002, the application must have been validly made within 12 months after the relevant day.

11. The Tribunal finds that the relevant day is the last day when the applicant held a substantive visa. The Tribunal finds, having regard to the information contained in the delegate’s decision and the applicant’s evidence, that the applicant ceased to hold a substantive visa on 28 April 2020, which the Tribunal finds is the relevant day for purposes of Criterion 3002. Therefore, the application made by the applicant was required to be made by no later than 28 April 2021. The Tribunal finds that the date when the application was validly made on 14 October 2022 was not within 12 months of the relevant day of 28 April 2020.

12. The Tribunal is therefore not satisfied the applicant meets the Schedule 3 Criterion 3002 and cl 461.213.

13. The Tribunal has no discretion with respect to this matter. Having found that the applicant does not meet Criterion 3002, the Tribunal must affirm the decision under review.

    DECISION

14. The Tribunal affirms the decision to refuse to grant the applicant a New Zealand Citizen (Family Relationship) (Temporary) (Class UP) subclass 461 visa.

    Edward Howard
    Member