1619886 (Refugee)

[2021] AATA 4885

1619886 (Refugee) [2021] AATA 4885 (25 October 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1619886

COUNTRY OF REFERENCE:                   Cambodia

MEMBER:Nicholas McGowan

DATE:25 October 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made 25 October 2021 at 7:52am

CATCHWORDS

REFUGEE – Protection visa – Cambodia – application for protection to regularise immigration status – marriage to Australian citizen – family violence – Australian citizen child – health conditions of child – compassionate circumstances – Ministerial intervention – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 36, 351

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

MINISTERIAL INTERVENTION

1. This Tribunal is satisfied that because the applicant’s previous applications for waiver of her ‘no further stay’ conditions on her visitor visa, to allow her to apply for a partner visa, she has had no other alternative but to apply for a protection visa to regularise her migration status.

2. Importantly, the applicant has not had a delinquent migration history.

3. The applicant is [an age]-year-old female from Phnom Penh, Cambodia. The applicant is Buddhist. The applicant married her first husband in 2005, divorcing in 2007/08. The applicant’s only child of that relationship has sole custody of that child, who presently lives in Cambodia with the applicant’s sister. The applicant first came to Australia [in] June 2009 as a tourist. The applicant returned to Cambodia [in] September 2009, then applied for another tourist visa, and returned to Australia [in] October 2009. The applicant married her second husband (who is also an Australian citizen) [in] January 2014. Their son was born on [date]. Their son is now almost [age] years old. A previous pregnancy between the parties ended in miscarriage. The applicant applied for her protection visa on 23 September 2014 and was granted a Subclass 030 bridging visa in association with that application.

4. Critically, the applicant is the mother of a young Australia citizen child.

5. The Tribunal also notes that the applicant’s son has a number of concerning health issues, which the applicant will outlined before the Minister. It is observed that some of those medical issues may stem from the family violence experienced by the applicant during her pregnancy.

6. It is clear to this Tribunal that the family violence the applicant has experienced is both proven and serious. This is highly relevant because the authorities have, historically, made Orders in respect to both the applicant and child from the applicant’s husband (and child’s father).

7. The Tribunal considers that the personal and family circumstances of this case, including consideration of the efforts the applicant has taken to regularise her migration status, will raise the following matters:

   ·     Strong compassionate circumstances such that a failure to recognise them would result in irreparable harm and continuing hardship to an Australian citizen child.

8. Having regard to the circumstances of the applicant and her son, as outlined above and having considered the Ministerial guidelines relating to the Minister's discretionary power under section 351 set out in PAM3 "Minister's guidelines on ministerial powers (sections 345, 351, 417, 454 and 501J)" this Tribunal considers this case should be referred to the Minister.

9. This Tribunal considers should the applicant be compelled to return to Cambodia, her son – who is an Australian citizen – would have no alternative but to go with his mother.  

10. In addition to the child’s health concerns, the upheaval could have an adverse emotional impact on the young child.

11. It would also be a cruel and unusual punishment paid upon a young child and the applicant, who repeatedly sought to regularise her migration status without success.

12. However, all the above circumstances are not matters that this Tribunal is able to take into account in making its decision in relation to the review of the protection visa application.

13. As the applicant does not satisfy the criteria for the visa, the Tribunal has no choice but to affirm the decision under review. Only the Minister has the discretion to intervene and take these circumstances into account.

14. It is the sincere hope, even plea, of this Tribunal that the Minister make a favourable decision in relation to the applicant’s application.

    DECISION

15. The applicant’s submission before this Tribunal is that she does not meet the criteria for the grant of the protection visa. Specifically, the applicant no longer claims to be a person in respect of whom Australia has protection obligations under s.36(2)(a). It follows that the applicant does not meet the refugee criterion in s.36(2)(a) or the alternative criteria in s.36(2)(aa). There is no evidence or claim that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criteria in s.36(2).

16. The applicant made a valid application for a protection visa on 23 September 2014 which was refused by the Minister’s delegate on 7 November 2016. The applicant lodged an application for review of that refusal on 24 November 2016. The matter was constituted on 23 June 2021. On 30 September 2021 as the Tribunal was unable to make a favourable decision on the information before it alone, the applicant was invited to attend a hearing which it then conducted on 21 October 2021. Section 36(2)(b) and Section 36(2)(c) of the Migration Act 1958 (the Act) are not applicable to this matter.

17. Given all the above, the Tribunal affirms the decision not to grant the applicant a protection visa.