Uaisele (Migration)

[2021] AATA 815

Uaisele (Migration) [2021] AATA 815 (18 March 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Unaloto Ki Luluwy Uaisele

CASE NUMBER:  1934792

DIBP REFERENCE(S):  BCC2017/4637730

MEMBER:Roger Maguire

DATE:18 March 2021

PLACE OF DECISION:  Brisbane

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 visa:

·    Schedule 3004 (c) and (d) for the purposes of cl. 461.213 of Schedule 2 to the Regulations.

Statement made on 18 March 2021 at 12:30pm

CATCHWORDS
MIGRATION – New Zealand Citizen (Family Relationship) (Temporary) (Class UP) visa – Subclass 461 (New Zealand Citizen Family Relationship (Temporary)) – no substantive visa held at time of application – factors beyond applicant’s control – sent application by express post and followed up with phone call – after several months, told that department had no record of application, and to re-apply – compelling reasons for granting visa – long relationship, settled family, sponsor a fly-in/fly-out worker – best interests of child in process of obtaining citizenship – exclusion period may apply if refusal affirmed – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 360
Migration Regulations 1994 (Cth), Schedule 2, cl 461.213; Schedule 3, Criterion 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 visa applicant applied for the visa on 4 December 2017. The delegate refused to grant the visa on the basis that the applicant did not meet the criteria in Schedule 3004 (c) and (d) of cl. 461.213 to the Regulations.

3. The applicant was represented in relation to the review by her registered migration agent, Mrs Tichava Batiya MARN 1680855.

4. Having considered the comprehensive submissions lodged by Ms Batiya, which the Tribunal accepts, the Tribunal has decided that it should proceed to decide this review in favour of the applicant without proceeding to a hearing as is provided for in section 360 (2) (a) of the Act.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issues in the present case are firstly, whether the applicant is not the holder of a substantive visa because of factors beyond the applicant’s control, and if so, secondly whether there are compelling reasons for granting the visa.

7. Cl.461 of Schedule 2 of the Regulations sets out the criteria to be met for the grant of a subclass 461 visa. The primary applicant must, at the time of application, satisfy clause 461.213 of the Regulations which stipulates that the applicant must satisfy (relevantly for present purposes) Criterion 3004. Criterion 3004 stipulates that it will be satisfied, if the Minister is satisfied that the applicant is not the holder of a substantive visa because of factors beyond the applicant’s control; and there are compelling reasons for granting the visa.

8. Evidence before the Tribunal shows that the applicant’s prior substantive visa ceased on 15 October 2017. The present visa application was lodged on 4 December 2017. Clearly the applicant was not the holder of a substantive visa at the time of lodgement of the present application.

9. The applicant has stated in submissions that she made a paper based application for a further visa three months before her visa was due to expire as she intended to travel to New Zealand with her partner of 20 years (the sponsor) and their son. The applicant sent the paper based application for a Subclass 461 visa to the Brisbane Processing centre via Express post wherein she was advised the department would receive her application within two business working days. After two days, she followed up with a phone call to the Department where she was advised the Department would process her paperwork and she would hear from them in due course. After several months of not hearing from the Department, she enquired on the progress of her application since she had not heard from the Department. It was at this time that she was advised that there were no department records of her application and that she needed to reapply, which she did immediately.

10. In the circumstances of this case, the Tribunal is satisfied that at the time of lodgement of the present application the applicant was not the holder of a substantive visa because of factors beyond her control, and therefore satisfies the requirements of Schedule 3004(c).

11. The Tribunal is also satisfied that there are compelling reasons for granting the visa. These reasons include that failure to grant the visa would adversely impact a 20 year relationship, and disrupt the life of a settled family. The sponsor works remotely on a fly in fly out basis and would need to leave his employment in order to care for his son. This would pose ongoing financial hardships for the family due to job scarcity in Townsville. The parties are not eligible for any form of financial support from the Australian government. The likely lengthy separation which would almost certainly follow a refusal to grant the visa would be a source of intense emotional stress for both parents as well as their son. The Tribunal is also mindful of Article 3 of the United Nations Convention on the Rights of the Child, and clearly the grant of the visa is very much in the best interests of the child who is in the process of obtaining his Australian citizenship prior to his 16^th birthday. The situation of the applicant would be exacerbated by the fact that she currently holds a Bridging Visa C, and as a result of her departure from Australia would enliven clause 4014 in Schedule 4 of the Migration Regulations, which may result in a 3 year exclusion period. The Tribunal is therefore satisfied that there are compelling reasons for granting the visa as provided for in Criterion 3004 (d).

12. For the foregoing reasons, the Tribunal finds that the applicant meets the requirements of Schedule 3004 (c) and (d) for the purposes of cl.461.213 of the Regulations.

    DECISION

13. 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 visa:

    • Schedule 3004 (c) and (d) for the purposes of cl. 461.213 of Schedule 2 to the Regulations.

    Roger Maguire
    Member