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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
- 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.
- 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)).
- 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
- 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.
- 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.
- 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.
- 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
- 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
- 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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URL: http://www.austlii.edu.au/au/cases/cth/MRTA/2013/ 1349 .html