Yi (Migration)

[2023] AATA 1962

Yi (Migration) [2023] AATA 1962 (31 May 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Linna Yi

CASE NUMBER:  2210125

HOME AFFAIRS REFERENCE(S):          BCC2019/5538033

MEMBER:Donna Petrovich

DATE:31 May 2023

PLACE OF DECISION:  Melbourne

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

Statement made on 31 May 2023 at 11:27am

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 – withdrawal of initial visa application – advice received from the Department – 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 28 June 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 (the applicant) applied for the visa on 1 November 2019. The delegate refused to grant the visa on the basis that the applicant did not satisfy clause 461.213 of Schedule 2 of the Migration Regulations 1994 (Cth) (the Regulations). Department records show that the applicant last held a substantive visa on 6 December 2017. As the applicant last held a substantive visa on 6 December 2017, which is more than 12 months prior to lodging her application on 1 November 2019, the delegate concluded that she did not meet criterion 3002 of the Regulations.

3. The applicant appeared before the Tribunal on 17 May 2023 to give evidence and present arguments. The Tribunal also received oral evidence at the hearing from Jack Kwok Kee Wong (her current New Zealand citizen partner in Australia on a TY – 444 visa).  The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

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

   Background

5. The applicant is a thirty-eight (38) year old from woman who was born in China and who lodged a valid application for New Zealand Citizen (Family Relationship) (Temporary) (Class UP) Subclass 461 visa on 1 November 2019.

6. On 17 February 2010, the applicant arrived in Australia as the holder of a Student (TU 573) Visa, valid until 15 March 2012. On 14 March 2012, the applicant applied for a further Student Visa which was granted on 20 March 2012 and valid until 6 December 2012.

7. On 26 September 2012 the applicant lodged a New Zealand Citizen (Family Relationship) (Temporary) (Class UP) Subclass 461 visa, which was granted on 6 December 2012 and was valid until 6 December 2017.

8. On 22 November 2017 the applicant applied for a further New Zealand Citizen (Family Relationship) (Temporary) (Class UP) Subclass 461 visa. On 4 November 2019 the applicant withdrew this application.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The applicant explained to the Tribunal that she withdrew the visa application based on advice she received from the Department.  She was unsure how to proceed with the application, as her relationship with her prior partner broke down and he had returned to New Zealand.  In these circumstances, the Department advised her to withdraw the application as her relationship with her prior partner had broken down.

10. As a result, when the applicant applied again on 1 November 2019 for the New Zealand Citizen (Family Relationship) (Temporary) (Class UP) Subclass 461 visa, she did not hold a substantive visa and she has not held a substantive visa since 6 December 2017.  In the absence of a substantive visa being held by the applicant for more than 12 months prior to lodging the visa application on 1 November 2019, the delegate found she did not meet cl. 461.213(b)(ii) of the Regulations.

11. The application for the New Zealand Citizen (Family Relationship) (Temporary) (Class UP) Subclass 461 visa, lodged on 1 November 2019 was valid and based on her relationship with Jack Kwok Kee Wong, a New Zealand citizen in Australia on a TY – 444 visa.  At the time of application, the applicant was granted an associated Bridging visa C (WC-030) visa, providing her with lawful status during the processing of her application.

12. The Tribunal finds that the applicant’s explanation of events is plausible in the context of there being confusion about the process.  Indeed, the Tribunal finds that she may have in fact withdrawn the initial application believing that this was appropriate as it would enable her to make a subsequent application separately.

13. In this case, the Tribunal is of the view that there is little difference regarding whether the applicant received inadequate advice or was confused by the process.  On the evidence, the Tribunal finds that had the applicant continued with her initial visa application lodged 22 November 2017, she would have satisfied the Schedule 3, cl. 3002 criteria.  This is because when she lodged the visa application for a further NZ Citizen (Family Relationship) (Temporary) (Class UP) Subclass 461 on 22 November 2017 (which she later withdrew) she held a substantive visa effective until 6 December 2017.  If she had not withdrawn that application, she would have been awaiting a decision on that visa application.

14. The Tribunal has some sympathy for the applicant who at the time of her prior relationship breaking down and the withdrawal of the visa application, had health issues in relation to endometriosis and ovarian cysts for which she was receiving treatment.  Also, at this time the applicant’s mother had been ill.  These circumstances caused the applicant additional stress, together with depressive symptoms.

15. The applicant and current sponsor (Jack Kwok Kee Wong) commenced a relationship after her previous relationship broke down and she withdrew the earlier visa application. 

16. The couple lodged a Notice of Intention to marry on 30 October 2019.  The applicant has been in Australia for the past eleven (11 years), has an established career in Australia and has a long-term relationship with her current partner (a New Zealand citizen who holds a TY-444 visa).

17. The applicant contends that the immigration office withdrew her Subclass 461 visa application (application ID 1980633269), which ultimately led to the visa application which is the subject of this review being declined by the delegate.

18. Further, the applicant claims that she has consulted with her Migration Agent, who advised her to apply offshore for another Subclass 461 visa.  She maintains that she wrote to the Department seeking verification of the Migration Agent’s advice.  Testimony was provided by the applicant to the Tribunal that she has not received a reply from the Department in relation to this inquiry. 

19. The Tribunal finds that the applicant has not accepted the advice of her Migration Agent to lodge a visa application offshore.  It is the view of the Tribunal that in writing to the Department, the applicant may have been seeking a different answer from them so as to avoid an offshore visa application.       

20. The Tribunal notes the circumstances of this case.  In particular, the applicant has sought the advice from the Department and a Migration Agent.  Further, she withdrew her Subclass 461 visa application lodged on 22 November 2017 as her prior relationship had broken down and she had commenced a new relationship with her current partner.  On 1 November 2019 the applicant lodged another Subclass 461 visa application (the refusal of which is the subject of this review). 

21. As she no longer held a substantive visa when she lodged another Subclass 461 visa on 1 November 2019 and has not held a substantive visa since 6 December 2017, the Tribunal finds that the applicant does not satisfy Schedule 3, criterion 3002 of the Regulations. 

22. Consequently, the applicant does not meet cl.461.213 of the Regulations.

    DECISION

23. The Tribunal affirms the decision of the Department to refuse the applicant a New Zealand Citizen (Family Relationship) (Temporary) (Class UP) Subclass 461visa.

Donna Petrovich
Member