Yami (Migration)

[2018] AATA 1119

Yami (Migration) [2018] AATA 1119 (20 March 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr McBerth Yami

CASE NUMBER:  1706337

DIBP REFERENCE(S):  BCC2017/910382

MEMBER:Fiona Meagher

DATE:20 March 2018

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision not to grant the visa applicant a Visitor (Class FA) visa.

Statement made on 20 March 2018 at 7:37pm

CATCHWORDS
Migration – Visitor (Class FA) visa – Subclass 600 (Visitor) – Not a holder of a substantive visa – Factors beyond control – Compelling circumstances

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2 cl 600.223, 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 March 2017 to refuse to grant the visa applicant a Visitor (Class FA) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 6 March 2017. At the time the visa application was lodged, Class FA contained one subclass, Subclass 600 (Visitor), with four streams. In this case the applicant applied for the visa seeking to satisfy the primary criteria in the Tourist stream.

3. The criteria for a Subclass 600 visa are set out in Part 600 of Schedule 2 to the Migration Regulations 1994 (the Regulations). Relevantly to this case, they include cl.600.223(2), which requires the visa applicant to satisfy the Minister that, if he was in Australia at the time of application and did not hold a substantive visa, the last substantive visa he held was not a Subclass 403 (Temporary Work (International Relations)) visa in the Domestic Worker (Diplomatic or Consular) stream and he satisfies Schedule 3 criteria 3001, 3003, 3004 and 3005.

4. The delegate refused to grant the visa on the basis that the visa applicant did not meet cl.600.223(2) because the delegate was not satisfied that the applicant met the requirements of Schedule 3 criterion 3004. A copy of the delegate’s decision was provided with the application for review.

5. The applicant appeared before the Tribunal on 14 March 2018 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Rena Yami.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in this case is whether cl.600.223(2) is met, which 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 he held was not a subclass 403 (Temporary Work (International Relations)) visa in the Domestic Worker (Diplomatic or Consular) stream and that he satisfies Schedule 3 criteria 3001, 3003, 3004 and 3005.

8. The records of the Department indicate that the applicant was in Australia at the time of application on 6 March 2017. The delegate’s decision indicates that the last substantive visa held by the applicant was a Subclass 600 visitor visa that expired on 24 February 2017. The Tribunal finds that the applicant was in Australia at the time of application, did not hold a substantive Visa, and the last substantive visa he held was not a subclass 403 (Temporary Work (International Relations)) visa in the Domestic Worker (Diplomatic or Consular) stream. Therefore, he satisfies the requirements of cl. 600.223(2)(a).

9. In considering whether the applicant satisfies the requirements of cl.600.223(2)(b) the Tribunal has considered Schedule 3 criterion 3004.

   Is criterion 3004 met?

10. In this case, the applicant ceased to hold a substantive or criminal justice visa on or after 1 September 1994 and must therefore satisfy the Minister, or in this case the Tribunal, that he meets the requirements of criterion 3004(c), (d), (e), (f), (g) and (h).

11. Criterion 3004(c) requires that the applicant satisfy the Minister, or in this case the Tribunal, that he is not the holder of a substantive visa because of factors beyond his control. He has provided numerous photographs of a child, himself, and/or his spouse with a child, and of a wedding. His wife Rena Yami has provided a letter which states as follows (mistakes in the original):

    My name is Rena Yami wife to Mr Mcberth Yami and I am an Australian citizen.

    I would like to appeal on behalf of my husband regarding his bridging Visa if possible he can be granted a spouse visa.

    My husband is everything to me and my son, he is a wonderful father to our son and a loving husband to me, in the times that I am down he always stand up for me and get me back on my feet, he encourages me to be strong and I am better person now because of him. As son is so closed to his dad, they do little things together since he was a baby until now he be turning-year-old in a few months’ time. I love my husband so very much so as a son, I couldn’t live without him, he is everything to me and the baby. He is a very special person in my hearth and I want to be close to him every single day of my life. I want our son to grow in the love of his parents both mum and dad.

    So, I am writing this in regard to your decisions you may do please consider this as his application for a bridging Visa with a intention of a spouse visa

    I sincerely appreciate consideration regarding my husband case.

12. The Tribunal discussed the applicant’s circumstances with him. He said that the factors which were beyond his control were that he did not have enough money -  his wife was supporting him by working at a childcare centre in Toowoomba. He said that she has been on maternity leave up until now, but will probably return to work soon, as their son turns one on April 19. The applicant also said that he was given bad advice by the Department as to whether or not he would be given a further visitor visa.

13. In terms of his visitor visa, the applicant said that he did not know that his Visa was due at that date, as he lost track of time.

14. The applicant’s wife, Ms Yami, gave evidence that during the time when the Visa was due she was in the midst of a difficult pregnancy. She said that her son with the applicant is her fourth child. She said that she had to have a cesarean section and that their son was born on 19 April 2017. She said that therefore her husband was too distracted helping her because of the pregnancy, as she was almost bedridden. She said that she had a high-risk pregnancy. She said that she was so busy as he was the only person who could help her. Ms Yami said that she gave up work on 26 November 2016.

15. The Tribunal observes that the last substantive visa held by the applicant ceased almost 2 months prior to the birth of his son.

16. The Tribunal has considered the above evidence and is not satisfied that the applicant is not a holder of a substantive visa because of factors beyond his control. The Tribunal considers that it was the applicant’s responsibility to ensure that, after he came to Australia, he was fully aware of the conditions of his visitor visa and complied with those conditions. The Tribunal does not accept that these are factors beyond his control.

17. Further, the Tribunal is of the view that if the applicant wished to apply for another visitor visa in order to extend his stay in Australia, then the onus was on him to ensure that he applied for the second visitor visa well before the expiry of his first visitor visa. Had he done so, arrangements would have been put in place to apply for a visitor visa prior to him becoming unlawful. The Tribunal does not accept that these are factors beyond the applicant’s control.

18. The Tribunal is not satisfied, on the evidence before it, that the applicant is not the holder of a substantive visa because of factors beyond his control. Therefore, the Tribunal finds that the applicant does not satisfy criterion 3004(c).

19. Criterion 3004(d) requires that the applicant satisfy the Minister, or in this case the Tribunal, that there are compelling reasons for granting the Visa. Having heard the evidence of the applicant, and in particular his wife, the Tribunal considers there may be compelling reasons for granting the Visa. However, the applicant is unable to overcome the fact that he was not the holder of a substantive visa due to circumstances beyond his control.

20. In view of the findings above, the Tribunal finds that the applicant does not satisfy the requirements of cl.600.223(2)(b).

21. Given the findings above, the applicant does not meet the requirements for the grant of the Visa and the decision under review must be affirmed.

    DECISION

22. The Tribunal affirms the decision not to grant the visa applicant a Visitor (Class FA) visa.

    Fiona Meagher
    Member