1836727 (Migration)

[2020] AATA 4349

1836727 (Migration) [2020] AATA 4349 (16 October 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1836727

MEMBER:Justine Clarke

DATE:16 October 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 16 October 2020 at 3:07pm

CATCHWORDS
MIGRATION – New Zealand Citizen (Family Relationship) (Temporary) (Class UP) visa – Subclass 461 (New Zealand Family Relationship (Temporary)) – application made more than 12 months after last substantive visa was held – consideration of request for referral to the Minister – strong compassionate circumstances – rights and benefits of Subclass 444 visa holders – unique or exceptional circumstances – unfair or unreasonable results – best interest of children – family unity – Ministerial Intervention requested – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 351
Migration Regulations 1994 (Cth), Schedule 2, cl 461.213, Schedule 3, Criterion 3002

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made, on 28 November 2018, by a delegate of the Minister for Immigration to refuse to grant the applicant a New Zealand Citizen (Family Relationship) (Temporary) (Class UP) Subclass 461 visa under s.65 of the Migration Act 1958 (the Act).

2. At the time of this decision, the applicant is a [age]-year-old national of Fiji.

3. On 20 October 2017, the applicant applied for the visa, claiming that he is a member of the family unit of [Ms A], his claimed de facto partner. At the time of this decision, [Ms A] is a [age]-year-old national of New Zealand holding a Subclass 444 (Special Category) visa.

4. At the time of application, Class UP contained only one subclass: Subclass 461. The criteria for the grant of this visa are set out in Part 461 of Schedule 2 to the Migration Regulations 1994 (the Regulations). All applicants for the visa must satisfy the primary criteria. The primary criteria to be met include cl.461.213, which is a time of application criterion. The text of this clause is as follows.

   If the application is made in Australia:

   (a)  at the time of application, the applicant held a substantive temporary visa other than a Subclass 403 (Temporary Work (International Relations)) visa in the Domestic Worker (Diplomatic or Consular) stream; or

   (b)  if the applicant did not hold a substantive visa at that time:

   (i)the last substantive temporary visa held by the applicant was not a visa mentioned in paragraph (a); and

   (ii)the applicant satisfies Schedule 3 criteria 3002, 3003, 3004 and 3005.

5. The applicant provided the Tribunal with a copy of the primary decision. The delegate refused to grant the visa on the basis that the applicant did not meet cl.461.213, finding that, at the time of application on 20 October 2017, the applicant did not meet Schedule 3 criterion 3002.

6. Schedule 3 to the Regulations contains additional criteria applicable to unlawful non-citizens and certain bridging visa holders. Schedule 3 criterion 3002 provides:

   The application is validly made within 12 months after the relevant day (within the meaning of subclause 3001(2)).

7. Schedule 3 criterion 3001 is set out in the attachment to this decision.

8. The delegate observed that, at the time of application on 20 October 2017, the applicant had last held a substantive temporary visa on 30 March 2015, which was 31 months prior to him lodging his application for the visa. Accordingly, the delegate found that the applicant did not meet Schedule 3 criterion 3002 because he ceased to hold a substantive visa more than 12 months prior to lodging the application for the visa.

9. The delegate noted that the applicant had submitted that there were compelling reasons for him to be granted a visa to remain in Australia but the delegate did not consider these claims, noting that such claims fall for consideration against Schedule 3 criterion 3004—not criterion 3002. The delegate noted that as the applicant does not satisfy Schedule 3 criterion 3002, an assessment did not need to be made in respect of Schedule 3 criteria 3003, 3004[1] and 3005.

   [1]        Schedule 3 criteria 3003 and 3004 are set out in the attachment to this decision.

10. On 14 December 2018, the applicant applied to the Tribunal for review of the primary decision. The applicant has been unrepresented in this review.

11. Due to the COVID-19 pandemic, the Tribunal did not hold an in-person hearing. On 30 September 2020, the applicant appeared before the Tribunal, by video, to give evidence and present arguments. The Tribunal also received oral evidence from [Ms A], who is the applicant's Partner. [Ms A] also gave her oral evidence by video from the same location as the applicant.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. The issue in this case is whether, at the time of application on 20 October 2017, the applicant met cl.461.213.

14. In his submissions of 1 December 2018, the applicant stated that he was aware that satisfaction of criterion 3002 is a legal requirement that must be met, however, he sought the waiver of the Schedule 3 requirements based on compassionate grounds supported by strong compelling evidence. The applicant submitted:

    I have strong family ties with my fiancé and two young children here and family commitments in Australia as the sole bread winner of my family. My Daughter [name omitted] was born extremely premature on [exact date omitted] 2018 at 27 weeks gestation, I need to remain here in Australia to continue working and supporting my family financially and emotionally. My Daughters medical care is here in Australia and she will need constant follow up appointments to monitor her development and progress due to her premature birth and I need to be here as her Father and to support my fiancé as it has been an emotionally distressing time for us as a family, my fiancé [Ms A] is unemployed and taking care of our two young children at home while I am currently working full time in a new permanent role which I have gained, departing offshore is simply not an option for me.    

15. Later in these submissions, after referring to specific articles in the Convention on the Rights of the Child, the applicant submitted:

    The best interests of my two young children were not taken as a primary consideration when an assessment was made on my application[.]

16. Prior to the hearing, the applicant filed submissions made on 14 September 2020. In these submissions, the applicant provided further detail of his claimed circumstances at the time that his Visitor visa expired, as well as updated details of the family’s life in Australia, including the birth of the couple’s third child in Australia in 2020 and the applicant’s achievements in Australia, stemming from having been granted work rights and study rights for his Bridging E visa.

17. The applicant submitted:

    All I want for my children is to have all the privileges and comforts that they are entitled to [in] Australia and to grow up in a complete family unit with both parents. It would be extremely hard for my family to adapt to the very poor living standards in Fiji where there are no opportunities and will be a major culture shock especially for my eldest children who have already started pre school and are thriving here and compared to New Zealand there is a significant difference in pay and also limited employment opportunities and with low rates of pay and high costs of living it would be a struggle for us and [I] would like to continue to remain in Australia where we have established our home.

    In the best interests of my children I am pleading with you to please take my compelling reasons into consideration.   

18. The Tribunal notes that the applicant has submitted much documentary evidence in support of his claims that there are compelling reasons in his case.

19. The applicant also submitted a signed statement made by [Ms A] on 18 September 2020. Amongst other things, she submitted:

    This application was refused principally because he could not satisfy criterion 3002, in the decision letter it is stated that [the applicant] has a right to appeal in which we had followed through and submitted all compelling evidence and if the tribunal has no power to waive the conditions and apply the act and regulations as they stand it would be extremely unfair for [the applicant] to be given a chance to work, study and support our family for several years in where we have fully relied on his income only to take that opportunity away again.

    Does the applicant meet Schedule 3 criteria?

20. It is not in dispute that, at the time the applicant applied for the New Zealand Citizen (Family Relationship) (Temporary) (Class UP) Subclass 461 visa, he did not hold a substantive visa. At the hearing, the Tribunal informed the applicant that, in these circumstances, it is mandatory that he meets Schedule 3 criterion 3002.

21. As noted, the applicant provided the Tribunal with a copy of the primary decision. The delegate outlined the relevant background, including the applicant’s immigration history. At the hearing, the Tribunal asked the Tribunal whether there were any aspects in the statement of his immigration history which he disagreed with. The applicant responded that it was ‘all correct’. The Tribunal understands that the applicant is not disputing any of the factual matters outlined in that statement, including, importantly, that:

    ·on 30 December 2014, the applicant entered Australia holding a Visitor visa (Subclass 600) which was valid until 30 March 2015; and

    ·after the cessation of the applicant’s Visitor visa, he did not make an application for a substantive visa until 20 October 2017, when he applied for the visa the subject of this review. 

22. In order to satisfy criterion 3002, the application for the visa must have been lodged within 12 months after the relevant day. The ‘relevant day’ is defined in 3001(2), as set out in the attachment to this decision. In this case, the relevant day is the day the applicant last held a substantive visa, being 30 March 2015.

23. As the application for the New Zealand Citizen (Family Relationship) (Temporary) (Class UP) Subclass 461 visa was not made until 20 October 2017, it was not made within 12 months after the relevant day (being 30 March 2015). Accordingly, the applicant does not satisfy criterion 3002.

24. The Tribunal explained to the applicant at the hearing that, regardless of his circumstances, the Tribunal does not have the authority to find that he meets criterion 3002 when all the information before the Tribunal is that he does not meet it.

25. The Tribunal asked the applicant what he wanted to tell the Tribunal in addition to the material that he had submitted. The applicant told the Tribunal that, when he was granted a Bridging E visa with work and study rights, he had used it as an opportunity to excel and that he had done his best to look after his three children in Australia. 

26. Both the applicant and [Ms A] queried why the applicant had been given opportunities to work and study in Australia if he is not able to get a substantive visa. [Ms A] told the Tribunal that being given an opportunity to ‘appeal’ to the Tribunal had given them hope that a different outcome would be possible. She said that this inability to succeed should be pointed out to people whose cases are similar, perhaps with text to be included in the refusal notification letters issued by the Department. The Tribunal told the applicant and [Ms A] that it would note in this decision their criticism of a right of review in a situation where the applicant could not succeed.

27. At the hearing, the applicant requested that the matter be referred to the Minister for his intervention.

    Consideration of request for referral to the Minister for intervention

28. Section 351 of the Act provides that, if the Minister thinks that it is in the public interest to do so, the Minister may substitute for a decision of the Tribunal another decision, being a decision that is more favourable to the applicant, whether or not the Tribunal had the power to make that other decision.

29. In deciding whether to refer the matter to the Minister for consideration under s.351, the Tribunal has had regard to the Direction of the President of the Tribunal entitled Conducting Migration and Refugee Reviews, especially at paragraphs 16.1–16.7 concerning referrals for ministerial intervention and the Minister’s Guidelines on ministerial powers (s351, s417 and s501) available in the Procedures Advice Manual 3 (‘the Minister’s Guidelines’).

30. Paragraph 16.1 of the President’s Direction, referred to above, provides that ‘Members should have regard to the ministerial guidelines when considering whether or not a case should be drawn to the attention of the Minister’.

31. Part 3 of the Minister’s Guidelines sets out the ministerial intervention principles. One of these principles is that the Minister will view a case referred to him unfavourably if the person has been an unlawful non-citizen. The Tribunal drew the applicant’s attention to this principle during the hearing.

32. While the applicant has made claims and provided evidence of strong compassionate circumstances that, if not recognised, would arguably result in serious, ongoing and irreversible harm and continuing hardship to him and his family unit, this is not one of the unique or exceptional circumstances provided for in the Minister’s Guidelines because, in this case, at the time of this decision, no one in the family is an Australian citizen or Australian permanent resident. The evidence on the Tribunal’s file is that [Ms A] holds a Special Category Subclass 444 visa which is a temporary visa. This means that [Ms A] does not enjoy the same rights and benefits as Australian citizens or Australian permanent residents. 

33. The Tribunal has reviewed the other examples of unique or exceptional circumstances listed in the Minister’s Guidelines. From the information and evidence before it, the Tribunal considers that this case should be brought to the Minister’s attention for the following unique or exceptional circumstances:

    ·circumstances not anticipated by relevant legislation; or clearly unintended consequences of legislation; or the application of relevant legislation leads to unfair or unreasonable results in a particular case; and

    ·compassionate circumstances regarding the … psychological state of the person that, if not recognised, would result in serious, ongoing and irreversible harm and continuing hardship to the person.

34. With respect to the first bullet point, the Tribunal notes that, in the applicant’s written submissions of 29 October 2018, he submitted:

    If I was forced to leave Australia this will mean I will lose my current full time and permanent job … I will basically [be] leaving my family here in debt with nothing and going back to my home country where there is nothing left for me and there is no work and poor wages and I will not even be able to support my family while offshore.

    My partner [Ms A] is also a non protected New Zealand Citizen therefore she will not be entitled to any full government benefits here with two young children. I strongly fear the safety and future of my children and my Partner if I was to leave them and it will be completely devastating to leave them in such a position where they will have no where to go and my financial support suddenly cut off.

    …

    … I need to remain here with my family as if I were to depart this would severely effect the mental health of my partner leaving her here to raise our two young children alone with no emotional support and cause her to struggle financially, it will also emotionally and psychologically effect our son and daughter. …

    … Our family is together everyday, we do everything together and we go through everything together, our close bond and love of our family cannot be separated.

35. In her written statement of 29 October 2018, [Ms A] described the applicant as ‘my main support person as I have no family network here’. She also submitted that ‘[l]osing his financial and emotional support and leaving the kids without their Father will cause extreme distress to our family’. Further, she submitted:

    I believe that our family based visa application should have the schedule 3 waiver available especially as there are children involved as if it cannot be applied in this case it would be unfair, unreasonable and unjust. It would be completely heartbreaking and devastating for my children and I to go through such an ordeal.

36. The Tribunal also notes that in this submission she stated that:

    In two years time when I meet the eligibility requirements I will be applying for Australian residency under the Skilled Independent (subclass 189) (New Zealand) stream and I will be including [the applicant] along with my children on this application as our life term goal is to become Australian Citizens and raise our young family here and make use of the endless opportunities and contribute to the society as law abiding citizens.

37. The Tribunal is not aware whether [Ms A] has applied for a Subclass 189 visa.

38. With respect to the second bullet point, the Tribunal notes that, in his submissions of 14 September 2020, the applicant detailed that, after arriving in Australia, he had experienced ‘a major family breakdown’. He said that he experienced depression at the breakdown of his 8-year marriage to his former partner. He continued by stating, ‘[i]t was during the pregnancy of our first born son where I faced severe anxiety in the fear of being taken away from my new family in where I have found true happiness should I not be able to legalize my status here’.

39. The Tribunal is mindful that the applicant is unrepresented so the Department may need to seek further information or evidence from the applicant and his partner in order to assess this request for Ministerial intervention.

40. The Tribunal notes that the Minister’s Guidelines state that the Department will provide other relevant information to the Minister as required, and the Tribunal assumes that the Department will draw the Minister’s attention to circumstances that may bring Australia’s obligations under the Convention on the Rights of the Child into consideration, including the best interests of the child—which the Tribunal notes must be treated as a primary consideration—as well as circumstances that may bring Australia’s obligations under the International Covenant on Civil and Political Rights into consideration, particularly issues of family unity. However, the Tribunal notes that in both cases that the Minister’s Guidelines provide that these circumstances can be balanced against other things.

41. Having had the opportunity to hear oral evidence from the applicant and [Ms A] by video, the Tribunal found both persons to be highly credible. Having regard to all the information and evidence before the Tribunal, the Tribunal considers that this is a case where it would be appropriate to make a referral to the Minister.

    DECISION

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

    Justine Clarke
    Member

    
    

    ATTACHMENT - Extract from Migration Regulations 1994

    Schedule 3

    3001

    (1)The application is validly made within 28 days after the relevant day (within the meaning of subclause (2)).

    (2)For the purposes of subclause (1) and of clause 3002, the relevant day, in relation to an applicant, is:

    (a)if the applicant held an entry permit that was valid up to and including 31 August 1994 but has not subsequently been the holder of a substantive visa — 1 September 1994; or

    (b)if the applicant became an illegal entrant before 1 September 1994 (whether or not clause 6002 in Schedule 6 of the Migration (1993) Regulations applied or section 195 of the Act applies) and has not, at any time on or after 1 September 1994, been the holder of a substantive visa — the day when the applicant last became an illegal entrant; or

    (c)if the applicant:

    (i)       ceased to hold a substantive or criminal justice visa on or after 1 September 1994; or

    (ii)      entered Australia unlawfully on or after 1 September 1994;

    whichever is the later of:

    (iii)      the last day when the applicant held a substantive or criminal justice visa; or

    (iv)    the day when the applicant last entered Australia unlawfully; or

    (d)if the last substantive visa held by the applicant was cancelled, and the Tribunal has made a decision to set aside and substitute the cancellation decision or the Minister's decision not to revoke the cancellation — the later of:

    (i)       the day when that last substantive visa ceased to be in effect; and

    (ii)      the day when the applicant is taken, under sections 368C, 368D and 379C of the Act, to have been notified of the Tribunal's decision.

    3003

    If:

    (a)the applicant has not, on or after 1 September 1994, been the holder of a substantive visa; and

    (b)on 31 August 1994, the applicant was either:

    (i)       an illegal entrant; or

    (ii)      the holder of an entry permit that was not valid beyond 31 August 1994;

    the Minister is satisfied that:

    (c)the applicant last became an illegal entrant, or, in the case of a person referred to in subparagraph (b)(ii), last became a person in Australia without a substantive visa, because of factors beyond the applicant's control; and

    (d)there are compelling reasons for granting the visa; and

    (e)the applicant has complied substantially with the conditions that apply or applied to:

    (i)       the last of any entry permits held by the applicant (other than a condition of which the applicant was in breach solely because of the expiry of the entry permit); and

    (ii)      any subsequent bridging visa; and

    (f)the applicant would have been entitled to be granted an entry permit equivalent to a visa of the class applied for if the applicant had applied for the entry permit immediately before last becoming an illegal entrant or, in the case of a person referred to in subparagraph (b)(ii), if the applicant had applied for the entry permit on 31 August 1994; and

    (g)the applicant intends to comply with any conditions subject to which the visa is granted; and

    (h)the last entry permit (if any) held by the applicant was not granted subject to a condition that the holder would not, after entering Australia, be entitled to be granted an entry permit, or a further entry permit, while the holder remained in Australia.

    3004

    If the applicant:

    (a)ceased to hold a substantive or criminal justice visa on or after 1 September 1994; or

    (b)entered Australia unlawfully on or after 1 September 1994 and has not subsequently been granted a substantive visa;

    the Minister is satisfied that:

    (c)the applicant is not the holder of a substantive visa because of factors beyond the applicant's control; and

    (d)there are compelling reasons for granting the visa; and

    (e)the applicant has complied substantially with:

    (i)       the conditions that apply or applied to:

    (A)the last of any entry permits held by the applicant (other than a condition of which the applicant was in breach solely because of the expiry of the entry permit); and

    (B)any subsequent bridging visa; or

    (ii)      the conditions that apply or applied to:

    (A)the last of any substantive visas held by the applicant (other than a condition of which the applicant was in breach solely because the visa ceased to be in effect); and

    (B)any subsequent bridging visa; and

    (f)either:

    (i)       in the case of an applicant referred to in paragraph (a) — the applicant would have been entitled to be granted a visa of the class applied for if the applicant had applied for the visa on the day when the applicant last held a substantive or criminal justice visa; or

    (ii)      in the case of an applicant referred to in paragraph (b) — the applicant would have satisfied the criteria (other than any Schedule 3 criteria) for the grant of a visa of the class applied for on the day when the applicant last entered Australia unlawfully; and

    (g)the applicant intends to comply with any conditions subject to which the visa is granted; and

    (h)if the last visa (if any) held by the applicant was a transitional (temporary) visa, that visa was not subject to a condition that the holder would not, after entering Australia, be entitled to be granted an entry permit, or a further entry permit, while the holder remained in Australia.