Zinck (Migration)

[2023] AATA 1968

Zinck (Migration) [2023] AATA 1968 (29 May 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ronny Zinck

CASE NUMBER:  2213042

HOME AFFAIRS REFERENCE(S):          BCC2021/947609

MEMBER:Donna Petrovich

DATE:29 May 2023

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision of the Department not to grant the New Zealand Citizen (Family Relationship) (Class UP) subclass 461 visa.

The Tribunal respectfully requests Ministerial Intervention on the basis of exceptional, compassionate and compelling circumstances.

Statement made on 29 May 2023 at 11:14am

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 – unique or exceptional circumstances – unfair or unreasonable results – serious, ongoing and irreversible harm and hardship – Ministerial Intervention requested – 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 1 September 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 21 January 2022. The delegate refused to grant the visa on the basis that the applicant (Ronny Zinck) who applied for a New Zealand Citizen (family Relationship) (Temporary) (Class UP) subclass 461visa, did not satisfy subclause 461.213(b)(ii) and Schedule 3, criteria 3002 of the Regulations.

3. Part 461 of Schedule 2 of the Regulations sets out the criteria to be met for the grant of a subclass 461 visa.  At the time of application, the primary applicant must satisfy clause 461.213 of the Regulations which stipulates that you must satisfy criteria 3002, 3003, 3004 and 3005 of the Regulations.

4. Department records show that the applicant’s last substantive visa ceased on 6 October 2020. As the applicant ceased to hold a substantive visa more than 12 months prior to lodging the application for the visa, the delegate found that the applicant did not meet the requirements of 461.213(b)(ii) and did not meet criterion 3002.

5. The applicant appeared before the Tribunal on 17 May 2023 to give evidence and present arguments. The Tribunal also received oral evidence from the Faiae Taesea Matafeo (the applicant’s mother-in-law).

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The applicant appeared at the Tribunal presenting evidence and he also provided post hearing written material.  He claims that as a result of Covid 19 Lockdown he was prevented from reapplying for a substantive visa. During Covid 19 lockdown he extended his Bridging visa multiple times to remain legally in Australia.

8. The applicant was advised by a woman, purporting to be an agent, that continuing to extend his visa provided a correct pathway for a substantive Visa.  The applicant did not understand the difference between a Bridging visa (Bridging Visa E) (general) (Subclass 050) applicable to his case and a substantive visa.

9. Post hearing, the applicant provided copies of his Bridging visa extensions to the Tribunal They were dated 27 April 2020 – 27 July 2020, 14 October 2020 - 5 March 2021, 4 March 2021 – 4 June 2021 and 29 September 2021 – 3 January 2022.

10. The Tribunal has some sympathy for the applicant.  He has been disadvantaged because of poor advise and a lack of understanding regarding his circumstances.  The applicant’s continued applications for Bridging visa extensions, is regarded by the Tribunal as a genuine attempt to remain legally in Australia with the misguided view that this action would lead to his desired visa outcome.      

11. The applicant provided the Tribunal with submissions at the hearing that he works full time, holds a current drivers licence, is married and is in a long-term relationship with a New Zealand citizen who holds of a TY-444 visa.

12. The Tribunal is of the view that a refusal of this application will have ongoing financial and emotional impact on him and his family.     

13. However, the Tribunal does not have the discretion to waive the requirement in cl. 416.213(b)(ii) which provides that the relevant Schedule 3 criterion are met.

14. The applicant does not meet 461.213 of the Regulations. There is no avenue available for the waiver of this criteria.

    Ministerial Intervention

15. The Tribunal refers this matter to the Minister based on the unique exceptional circumstances relating to the applicant’s case.  In particular, the Tribunal is of the view that the application of relevant legislation to the applicant’s circumstances leads to unreasonable results as described above.  If the applicable compassionate circumstances are not recognised, the Tribunal is of the view that the applicant and his family will suffer serious, ongoing and irreversible harm and hardship. 

    DECISION

16. The Tribunal affirms the decision of the Department not to grant the New Zealand Citizen (Family Relationship) (Class UP) subclass 461 visa.

17. The Tribunal respectfully requests Ministerial Intervention on the basis of exceptional, compassionate and compelling circumstances.

    Donna Petrovich
    Member