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1103935 [2013] MRTA  1349  (17 June 2013)

Last Updated: 26 June 2013

1103935  [2013] MRTA 1349  (17 June 2013)


DECISION RECORD

APPLICANT: Mr Timoteo Muaiava

MRT CASE NUMBER: 1103935

DIAC REFERENCE(S): CLF2011/12337

TRIBUNAL MEMBER: Wan Shum

DATE: 17 June 2013

PLACE OF DECISION: Sydney

DECISION: The Tribunal affirms the decision not to grant the applicant a New Zealand Citizen (Family Relationship) (Temporary) (Class UP) visa.


STATEMENT OF DECISION AND REASONS
INTRODUCTION

  1. Mr Timoteo Muaiava (the applicant) arrived in Australia on a visitor visa in 2008. Since that visa ceased on 29 September 2008, he has not held another substantive visa and applied to the Department of Immigration and Citizenship for a New Zealand Citizen (Family Relationship) (Temporary) (Class UP) visa on 27 January 2011.
  2. The delegate decided to refuse to grant the visa because the applicant had made the visa application more than 12 months after his last substantive visa ceased to be in effect and found that he did not satisfy a requirement for the visa (Schedule 3 criterion 3002 for the purposes of cl.461.213(b)(ii) of Schedule 2 to the Migration Regulations 1994 (the Regulations)).
  3. The applicant applied to the Tribunal on 27 April 2011 for review of the delegate’s decision. The issue before the Tribunal is whether he satisfies Schedule 3 criterion 3002. This criterion is satisfied when the visa application is validly made within 12 months after the relevant day, being, in this case, the last day when the applicant held a substantive or criminal justice visa (within the meaning of subclause 3001(2)(c)).

ANALYSIS AND FINDINGS REASONS

  1. When making the application for the NZ Citizen (Family Relationship) Temporary visa, the applicant was in Australia and the holder of a Bridging E visa, which is not a substantive visa and is not taken to be the holding of a visa for the purposes of an application for a visa of another class (s.76(2)). The Tribunal finds that the applicant was not the holder of a substantive temporary visa and as he does not hold a substantive visa, he must satisfy certain Schedule 3 criteria including criterion 3002.
  2. Criterion 3002 is satisfied when the visa application is validly made within 12 months after the last day when the applicant held a substantive or criminal justice visa. The last day that the applicant held a substantive visa was on 29 September 2008 when his visitor visa expired. As he applied for the NZ Citizen (Family Relationship) Temporary visa on 27 January 2011, the Tribunal finds that the visa application was not made within 12 months after his visitor visa ceased.
  3. The applicant explained at hearing that he was not aware of these matters and the procedures that he needed to go through whilst he was in Australia. If only he understood then, he would have done something about it. The applicant’s wife has submitted that his presence in Australia is critical for her and her children and also referred to the applicant having been misled by a couple who had promised to help him with his papers. However, the Tribunal does not have any discretion to consider such matters in determining whether this visa requirement has been met.
  4. On the information before it, the Tribunal finds that the applicant does not meet Schedule 3 criteria 3002 and he does not satisfy cl.461.213.

CONCLUSION

  1. For the reasons given above the Tribunal finds the applicant does not satisfy the requirements of cl.461.213 and it must affirm the decision under review.

DECISION

  1. The Tribunal affirms the decision not to grant the applicant a New Zealand Citizen (Family Relationship) (Temporary) (Class UP) visa.

Wan Shum
Member


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