1512267 (Migration)

Case [2015] AATA 3854

1512267 (Migration) [2015] AATA 3854 (10 December 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Danielle Gail McMechan

CASE NUMBER:  1512267

DIBP REFERENCE(S):  clf2013/123671

MEMBER:Wendy Banfield

DATE:10 December 2015

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.

Statement made on 10 December 2015 at 7:57pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

  1. This is an application for review of a decision of a delegate of the Minister for Immigration on 27 August 2015 to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s.65 of the Migration Act 1958 (the Act).

  2. The applicant applied for the visa on 30 May 2013 on the basis of her relationship with her sponsor. At that time, Class UK contained only one subclass: Subclass 820 (Partner (Temporary)). The criteria for the grant of this visa are set out in Part 820 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria.

  3. The delegate refused to grant the visa on the basis that the applicant did not satisfy cl.801.221.

  4. The applicant appeared before the Tribunal on 30 November 2015 to give evidence and present arguments.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

  6. The applicant first arrived in Australia on an Electronic Travel Authority (Visitor) (subclass 976) visa on 3 March 2011and returned to Canada on 1 June 2011. The applicant returned to Australia on 7 March 2013 and has remained with her two children and current partner after the relationship with her former partner broke down. The applicant was refused a Partner (Temporary) (Class UK) visa because she did not provide an up to date health certificate or a Canadian Penal Certificate and Australian Federal Police Certificate as requested by the Department. The applicant had advised that the documentation had not been provided due to financial constraints.

  7. An additional issue arising in this case is whether the notification in relation to the subclass 801 decision dated 29 April 2015 was effective.

  8. Section 66(2) of the Migration Act provides that notification of a decision to refuse an application for a visa must contain certain elements, including, with one irrelevant exception,[1] “written reasons”. Section 66(4) further provides that “failure to give notification of a decision does not affect the validity of the decision.

    [1] Migration Act, s 66(3).

  9. The Tribunal finds that the notification dated 29 April 2015 in relation to the subclass 801 was ineffective because, contrary to the requirements of section 66(2)(a) and (c) of the Migration Act respectively, it failed to specify the criterion which was not met by the applicant and failed to provide written reasons why the criterion was not satisfied. The notification fails to refer to cl 801.221(1), which provided that “the applicant meets the requirements of subclause (2), (2A), (3), (4), (5), (6) or (8)”. Furthermore, it does not explain to the applicant that in order to meet at least one of the requirements of cl.801.221(1), she must either hold or have held a subclass 820 visa.

  10. The Tribunal notes that non-compliance with s 66(2) of the Migration Act does not necessarily invalidate the notification: “the consequences of alleged non-compliance with the Act must be examined and the practical consequences of the failure to comply with the Act’s procedural obligations evaluated”.[2] The Tribunal finds that as the notification dated 10 April 2013 failed to stipulate the legal criterion which was not met and the precise reasons for failing to meet the criterion, the applicant did not have and effective or adequate opportunity to seek review of the subclass 801 decision.

    [2] Singh v MIAC [2010] FMCA 1000; SZOFE v MIAC (2010) 185 FCR 129.

  11. The effect of the ineffective notification dated 29 April 2015 is that the time period for lodging a review of the subclass 801 decision had not commenced to run.

  12. The issue in the present case therefore is whether the review applicant is the holder of a subclass 820 visa.

  13. Based on the evidence available to the Tribunal and the material on file, the Tribunal finds that the review applicant is not the holder of a subclass 820 visa and has never been the holder of a subclass 820 visa. She therefore does not meet the requirements of subclause 801.221(2), (2A), (3), (4), (5), (6) or (8). For the reasons above, the applicant does not satisfy the criteria for the grant of the visa.

    Referral to the Minister

  14. The review applicant requested that the Tribunal refer the case to the Department for consideration by the Minster pursuant to section 351 of the Migration Act, which gives the Minister discretion to substitute for a decision of the Tribunal another decision more favourable to the applicant, if in the public interest.

  15. The applicant first arrived in Australia on an Electronic Travel Authority (Visitor) (subclass 976) visa on 3 March 2011. She returned to Canada on 1 June 2011 and her first child, Ahlexa Jade Marie Brett was born on 2 February 2012. The relationship with Ahlexa’s Australian father subsequently broke down. After the applicant had returned to Australia on 7 March 2013 she had another child, Harlee Rose Stuart, born on 11 December 2014 with her current partner.

  16. Pursuant to Consent Orders in the Family Court, the applicant and her former partner share joint parental responsibility for Ahlexa with the child to live with the applicant. Both parties are restrained from removing Ahlexa from Australia and her name has been placed on the “Airport Watch List”. Ahlexa’s permanent residence must also not be relocated in excess of 15 kilometres of the Moree General Post Office in New South Wales. If the applicant were required to return to Canada, she would be separated from one or both of her very young children. If the applicant left Australia with her current partner and youngest child, Ahlexa would be deprived of her mother and sister.

  17. The Tribunal is satisfied that compassionate circumstances regarding the applicant and her two children provide an exceptional circumstance whereby the failure to recognise those circumstances would result in irreparable harm and continuing hardship for the visa applicant. It would also cause irreparable harm and continuing hardship for her two daughters who reside in Australia and are Australian citizens.

  18. Based on these considerations, the Tribunal supports an application for Ministerial Intervention.

    DECISION

  19. The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.

    Wendy Banfield
    Member



Details
AGLC
1512267 (Migration) [2015] AATA 3854
Case
[2015] AATA 3854
Decision Date

CaseChat Overview and Summary

The case involved an application for a Partner (Temporary) (Class UK) visa by an applicant who had arrived in Australia on a Visitor visa and later remained in the country with her children after a relationship breakdown. The application was refused due to the applicant's failure to provide certain certificates, including a health certificate, a Canadian Penal Certificate, and an Australian Federal Police Certificate, due to financial constraints. The applicant also challenged the effectiveness of a notification regarding a previous visa refusal, arguing that it did not comply with statutory requirements for specifying the criterion not met and providing written reasons.

The primary legal issue was whether the notification regarding the subclass 801 visa refusal was effective. The court examined whether the notification met the statutory requirements under section 66(2) of the Migration Act, which mandates that a notification of a decision to refuse a visa must include certain elements, such as specifying the criterion not met and providing written reasons. The Tribunal found the notification ineffective because it failed to specify the criterion which was not met and did not provide written reasons for the refusal, thereby not allowing the applicant an effective opportunity to seek review. The court also considered whether the applicant met the criteria for the subclass 820 visa, concluding that she did not.

The Tribunal determined that the notification's ineffectiveness meant the time period for reviewing the subclass 801 decision had not started. Consequently, the Tribunal affirmed the decision not to grant the applicant a Partner (Temporary) (Class UK) visa, as the applicant did not meet the necessary criteria. The Tribunal also supported an application for Ministerial Intervention.

In conclusion, the Tribunal upheld the decision to refuse the visa, finding that the applicant did not meet the required criteria and that the notification regarding a previous visa refusal was ineffective, thus not allowing the applicant an adequate opportunity to seek review. The Tribunal's decision was affirmed, and Ministerial Intervention was supported.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCE The applicant first arrived in Australia on an Electronic Travel Authority (Visitor) (subclass 976) visa on 3 March 2011and returned to Canada on 1 June 2011. The applicant returned to Australia on 7 March 2013 and has remained with her two children and current partner after the relationship with her former partner broke down. The applicant was refused a Partner (Temporary) (Class UK) visa because she did not provide an up to date health certificate or a Canadian Penal Certificate and Australian Federal Police Certificate as requested by the Department. The applicant had advised that the documentation had not been provided due to financial constraints. An additional issue arising in this case is whether the notification in relation to the subclass 801 decision dated 29 April 2015 was effective. Section 66(2) of the Migration Act provides that notification of a decision to refuse an application for a visa must contain certain elements, including, with one irrelevant exception,[1] “written reasons”. Section 66(4) further provides that “failure to give notification of a decision does not affect the validity of the decision.[1] Migration Act, s 66(3). The Tribunal finds that the notification dated 29 April 2015 in relation to the subclass 801 was ineffective because, contrary to the requirements of section 66(2)(a) and (c) of the Migration Act respectively, it failed to specify the criterion which was not met by the applicant and failed to provide written reasons why the criterion was not satisfied. The notification fails to refer to cl 801.221(1), which provided that “the applicant meets the requirements of subclause (2), (2A), (3), (4), (5), (6) or (8)”. Furthermore, it does not explain to the applicant that in order to meet at least one of the requirements of cl.801.221(1), she must either hold or have held a subclass 820 visa. The Tribunal notes that non-compliance with s 66(2) of the Migration Act does not necessarily invalidate the notification: “the consequences of alleged non-compliance with the Act must be examined and the practical consequences of the failure to comply with the Act’s procedural obligations evaluated”.[2] The Tribunal finds that as the notification dated 10 April 2013 failed to stipulate the legal criterion which was not met and the precise reasons for failing to meet the criterion, the applicant did not have and effective or adequate opportunity to seek review of the subclass 801 decision.[2] Singh v MIAC [2010] FMCA 1000; SZOFE v MIAC (2010) 185 FCR 129. The effect of the ineffective notification dated 29 April 2015 is that the time period for lodging a review of the subclass 801 decision had not commenced to run. The issue in the present case therefore is whether the review applicant is the holder of a subclass 820 visa. Based on the evidence available to the Tribunal and the material on file, the Tribunal finds that the review applicant is not the holder of a subclass 820 visa and has never been the holder of a subclass 820 visa. She therefore does not meet the requirements of subclause 801.221(2), (2A), (3), (4), (5), (6) or (8). For the reasons above, the applicant does not satisfy the criteria for the grant of the visa.Referral to the Minister

Decision

Reasons for decision

Based on these considerations, the Tribunal supports an application for Ministerial Intervention.DECISION The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.Wendy BanfieldMember

Ratio Decidendi

Legal Principle Established

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