Veikoso (Migration)

Veikoso (Migration) [2022] AATA 2161 (23 June 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Ms Lepeka Tuipulotu Veikoso
Miss Alenga Rosanne Gloria Ika
CASE NUMBER:  2107468
HOME AFFAIRS REFERENCE(S):          BCC2018/5545808

MEMBER:Naomi Schmitz
DATE:23 June 2022
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decisions to refuse to grant the visa applicants a New Zealand Citizen (Family Relationship) (Temporary) (Class UP) Subclass 461 visa

Statement made on 23 June 2022 at 4:35pm
CATCHWORDS
MIGRATION – New Zealand Citizen (Family Relationship) (Temporary) (Class UP) visa – Subclass 461 (New Zealand Citizen Family Relationship (Temporary) – member of family unit – sister and niece of family head usually resident in household and dependent on him – amendment to regulations excludes relatives other than spouse and children – member of family unit of another person – marriage and divorce – concession of not meeting criteria, consent to decision without hearing and intention to apply for ministerial intervention – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.12, Schedule 2, cl 461.212
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 21 May 2021 to refuse to grant the visa applicants New Zealand Citizen (Family Relationship) (Temporary) (Class UP) Subclass 461 visas under s.65 of the Migration Act 1958 (Cth) (the Act).
The first named applicant Ms Lepeka Tuipulotu Veikoso applied for the visa on 7 December 2018.
The second named applicant Ms Alenga Rosanna Gloria Ika applied for the visa on 7 October 2019. The second named applicant is currently three years of age and a minor. The first named applicant is the second named applicant’s mother, who lodged the visa on the second named applicant’s behalf.
The delegate refused to grant the first and second named applicant’s visas on the basis that the applicants did not satisfy cl. 461.212 of Schedule 2 of the Migration Regulations 1994 (Cth) (the Regulations).
On 8 June 2021 the applicants applied to the Tribunal for a review of the refusal decisions. The Tribunal was provided with a copy of the delegate’s decision records.
On 2 June 2022 the Tribunal invited the first and second named applicants to appear at a Tribunal hearing commencing at 9:30am on 22 June 2022 to give evidence and present arguments relating to the issues arising in relation to the decision under review. The Tribunal was required to do this because it had considered the information it had and was unable to make a decision favourable to the applicant.
On 5 June 2022 the first named applicant wrote to the Tribunal and advised that she consented to the Tribunal making a decision on the papers. The email stated ‘Dear Member of Tribunal, Please make your decision based on information you already have. I intend to appeal for Ministerial Intervention’.[1]
[1] Email sent by the first named applicant on 5 June 2022 at 11:10pm
On 6 June 2022 the Tribunal considered the first named applicant’s email correspondence. As the first named applicant declined to participate at a hearing on 22 June 2022, the hearing was cancelled and the applicants were notified of the hearing cancellation by email.
The Tribunal has proceeded to decide the review application on the evidence available to the Tribunal.[2]
[2] Section 362B [Part 5] Migration Act 1958 (Cth)
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the applicant satisfies cl. 461.212.
As the primary applicant at the time of application the applicant must satisfy cl. 461.212 of the Regulations.
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).
Subclause 461.212(1) has the effect that the applicant must meet the requirements of subclause (2), (3) or (4).
Until 18 November 2016 the ‘member of the family unit’ was defined as follows:
(1) For the definition of member of the family unit in subsection 5(1) of the Act, and subject to subregulations (2), (2A), (6) and (7), a person is a member of the family unit of another person (in this subregulation called the family head) if the person is:
(a) a spouse or de facto partner of the family head; or
(b) a dependent child of the family head or of a spouse or de facto partner of the family head; or
(c) a dependent child of a dependent child of the family head or of a spouse or de facto partner of the family head; or
(e) a relative of the family head or of a spouse or de facto partner of the family head who:
(i) does not have a spouse or de facto partner; and
(ii) is usually resident in the family head's household; and
(iii) is dependent on the family head.
Subsequently on 19 November 2016, the Migration Legislation Amendment (2016 Measures No. 4) Regulation 2016 was introduced. This repealed the definition in Regulation 1.12(1)(e) and substituted it with the following definition:
(2) A person is a member of the family unit of another person (the family head) if the person:
(a) is a spouse or de facto partner of the family head; or
(b) is a child or stepchild of the family head or of a spouse or de facto partner of the
family head (other than a child or stepchild who is engaged to be married or has a
spouse or de facto partner) and:
(i) has not turned 18; or
(ii) has turned 18, but has not turned 23, and is dependent on the family head
or on the spouse or de facto partner of the family head; or
(iii) has turned 23 and is under paragraph 1.05A(1)(b) dependent on the
family head or on the spouse or de facto partner of the family head; or
(c) is a dependent child of a person who meets the conditions in paragraph (b).
‘Dependent’ pursuant to Regulation 1.05A is defined as follows:
Subject to subregulation (2), a person (the first person) is dependent on another person if:
(b) the first person is wholly or substantially reliant on the other person for financial support because the first person is incapacitated for work due to the total or partial loss of the first person’s bodily or mental functions.
Section 5F of the Migration Act defines spouse as follows:
(1)  For the purposes of this Act, a person is the spouse of another person (whether of the same sex or a different sex) if, under subsection (2), the 2 persons are in a married relationship.
(2)  For the purposes of subsection (1), persons are in a married relationship if:
(a)  they are married to each other under a marriage that is valid for the purposes of this Act; and
(b)  they have a mutual commitment to a shared life as a married couple to the exclusion of all others; and
(c)  the relationship between them is genuine and continuing; and
(d)  they:
(i)  live together; or
(ii)  do not live separately and apart on a permanent basis.
FIRST NAMED APPLICANT
The first named applicant lodged an application for a New Zealand Citizen (Family Relationship) (Temporary) (Class UP) subclass 461 visa on 7 December 2018, on the grounds of being a member of the family unit of a New Zealand citizen, Mr Finau Siosifa Veikoso, the first named applicant’s brother, who is currently in Australia as the holder of a TY-444 Subclass visa.[3]
[3] Departmental file: BCC20185545808 – Visa Application - Answers to Questions 19 and 21
The first named applicant claimed that she is and continues to be a dependent member of the New Zealand citizen Mr Veikoso based on him providing her with accommodation and financial support.[4] However, as the first named applicant is Mr Veikoso’s sibling, [5] and not a spouse or de facto of the family head or a child or stepchild of the family head, the first named applicant does not satisfy the definition of a member of the family unit of Mr Veikoso pursuant to Regulation 1.12. As such, the first named applicant does not satisfy cl. 461.212(2).
[4] Letter from first named applicant dated 2 April 2021 and letter from Mr Finau Siosifa Veikoso dated 24 September 2018
[5] Birth certificates of the first named applicant and Mr Veikoso
Information and documents submitted to the department show that the first named applicant became the member of the family unit of another person, Mr Simote Ika when the first named applicant married him on 8 December 2015[6] after the first named applicant’s last Subclass 461 visa was granted on 20 December 2013 which was valid until 20 December 2018. The first named applicant divorced Mr Ika on 3 September 2018.[7]
[6] Divorce court order and letter from the first named applicant and letter from Mr Veikoso
[7] Ibid
The Tribunal has had regard to all the evidence, including the first named applicant’s response to the natural justice letter, where she claimed she is dependent on her brother for accommodation and financial support and because Mr Ika did not provide sufficient support as a spouse, she ‘basically believe we (Mr Simote Ika and I) did not meet the definition of your department as a “relationship” even though we were officially registered as married couple’.
The Tribunal rejects the first named applicant’s submission that she did not regard her marriage to Mr Ika as a spousal relationship because she regarded financial support by Mr Ika as inadequate. The fact that he may have been impecunious or not to the first named applicant’s standard is irrelevant. The Tribunal is satisfied that the first named applicant was Mr Ika’s spouse, as she was legally married to Mr Ika and it was a valid marriage as evidenced by court orders which dissolved the marriage. Furthermore, the Tribunal is satisfied that the first named applicant and Mr Ika had a mutual commitment to a shared life as a married couple, that the relationship between them was genuine and continuing and they lived with one another, as evidenced by the first named applicant adopting Mr Ika’s surname,[8] by the first named applicant and Mr Ika residing at Mr Veikoso’s address as husband and wife and the fact that Mr Ika was regarded by Mr Veikoso as the first named applicant’s husband and now ‘ex-husband’.[9] The Tribunal further notes that the applicant will be seeking Ministerial Intervention and concedes she cannot meet the legislative criteria.
[8] Australian Federal Police National Police Certificate and visa application – Answer to Question 2
[9] Ibid. Letter from Mr Veikoso
The Tribunal has also had regard to the first named applicant’s submission that she bore a child to Mr Ika in October 2019, after their divorce, and that she was not in a relationship with Mr Ike at the time of conception or birth. The Tribunal does not accept the first named applicant’s submission. It is irrelevant that the first named applicant was no longer in a spousal relationship with Mr Ika when the second named applicant was conceived or born, as it is not a requirement that the first named applicant is still a member of the family unit of that other person cl. 461.212(3)(c). Furthermore, the Tribunal notes the fact that the first named applicant conceived a child with Mr Ika in approximately January or February 2019 and the fact that Mr Ika is registered on the second named applicant’s birth certificate as residing at the same address as the first named applicant on 11 December 2019, raises doubts as to the first named applicant’s claims that she was never in a relationship with Mr Ika.[10]
[10] Second named applicant’s birth certificate dated 11 December 2019
Having considered all the evidence carefully, the Tribunal is not satisfied that the first named applicant meets cl.461.212(3) as the first named applicant at the time of application had become a member of the family unit of another, namely Mr Ika from 8 December 2015 until 3 September 2018 when she divorced Mr Ika.
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. The applicant gave evidence that she was in Australia at the time of application. As the first named 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).
Having found that the first named applicant does not meet cl.461.212(2), (3) or (4), the Tribunal finds that the first named applicant does not meet cl.461.212 and she does not, therefore, meet the criteria for the grant of the New Zealand Citizen Family Relationship (Temporary) (Class UP) (Subclass 461) visa. The Tribunal therefore is not satisfied that the applicant meets cl.461.221 of the Regulations.
SECOND NAMED APPLICANT
The second named applicant lodged an application for a New Zealand Citizen (Family Relationship) (Temporary) (Class UP) subclass 461 visa on 7 October 2019, on the grounds of being a member of the family unit of a New Zealand citizen, Mr Finau Siosifa Veikoso, the second named applicant’s uncle, who is currently in Australia as the holder of a TY-444 Subclass visa.[11]
[11] Departmental file: BCC20185545808 – Visa Application - Answers to Questions 19 and 21
The second named applicant claims to be dependent on Mr Veikoso for accommodation and financial support.[12] However, as the second named applicant is Mr Veikoso’s niece, and not a spouse or de facto of the family head or a child or stepchild of the family head, the second named applicant does not satisfy the definition of a member of the family unit of Mr Veikoso pursuant to Regulation 1.12 and therefore the second named applicant does not satisfy cl. 461.212(2).
[12] Ibid. Letter from first named applicant and letter from Mr Veikoso
The Tribunal is also not satisfied that the second named applicant meets the requirements of cl. 461.212(3) or cl. 461.212(4) as the second named applicant has never previously held a New Zealand Family Relationship (Temporary) (subclass 461) visa.
Having found that the second named applicant does not meet cl.461.212(2), (3) or (4), the Tribunal finds that the second named applicant does not meet cl.461.212 and she does not, therefore, meet the criteria for the grant of the New Zealand Citizen Family Relationship (Temporary) (Class UP) (Subclass 461) visa. The Tribunal therefore is not satisfied that the applicant meets cl.461.221 of the Regulations.
DECISION
The Tribunal affirms the decisions to refuse to grant the visa applicants a New Zealand Citizen (Family Relationship) (Temporary) (Class UP) Subclass 461 visa
Naomi Schmitz
Member

[2022] AATA 2161

23 June 2022

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Immigration

Statutory Interpretation

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Judicial Review

Jurisdiction

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