2018206 (Migration)

[2023] AATA 1924

2018206 (Migration) [2023] AATA 1924 (15 May 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr George Vassilou (MARN: 0746634)

CASE NUMBER:  2018206

MEMBER:Margie Bourke

DATE:15 May 2023

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a subclass 808 Confirmatory (Residence) (class AK) visa.

Statement made on 15 May 2023 at 4:47pm

CATCHWORDS

MIGRATION – Confirmatory (Residence) (Class AK) – Subclass 808 visa – applicant does not meet the time of application criteria for a subclass 808 visa – daughter is an Australian citizen, as well as a Cambodian citizen – applicant was not the holder of a prescribed visa– referral for ministerial intervention – strong compassionate circumstances – to seek a pathway to apply to the Minister for ministerial intervention – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 65, 351

Migration Regulations 1994, Schedule 2, cls 808.211, 808.212, 808.213

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 by a delegate of the Minister for Home Affairs on 2 December 2020 to refuse to grant the visa applicant a Confirmatory (Residence) (Class AK) Subclass 808 visa under s.65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicant applied for the visa on 3 November 2020. The delegate refused to grant the visa on the basis that the applicant did not meet the time of application criteria.

3. The applicant had advised the Department in a submission through her representative, that she understands she is not eligible for the visa for which the application is made, and she cannot successfully be granted the visa in this application. The applicant advised that she had made the application for the visa to seek a pathway to apply to the Minister for ministerial intervention.

4. The Tribunal wrote to the applicant advising it had considered the submission, and requesting the applicant advise whether she wished to make a submission in writing to the Tribunal or wish to appear before the Tribunal in a hearing. The applicant’s representative responded to the Tribunal that the applicant requested a hearing in the matter, in which to make her submissions relating to an application for ministerial intervention.

5. The Tribunal had regard to its objectives to provide a mechanism for review that is fair, just, economical, informal and quick. The Tribunal had regard to the circumstances of the applicant, the nature of the review, and the indication that the issue to be determined related to a tribunal recommendation for ministerial intervention. The Tribunal considered the conduct of the hearing by video would give the applicant the opportunity to give evidence and present arguments, and would allow the Tribunal to conduct a fair and effective hearing, and to properly assess the evidence before it. The hearing did not involve an excessive amount of paperwork to be put to the applicant by the Tribunal. The hearing was scheduled at a time when the availability of in-person hearings were restricted due to the ongoing pandemic. For all the above reasons, the applicant was invited to attend a hearing by video.

6. The invitation scheduled a hearing at 10:30am to be conducted by video connection on 15 May 2023.

7. The applicant’s representative advised that he would attend the hearing by telephone, but that the applicant requested an in-person hearing. [Deleted].

8. The Tribunal responded to the applicant’s representative’s requests by advising that in the circumstances where the applicant had advised the Tribunal that she did not meet the criteria for the visa, and wished to make submissions in relation to ministerial intervention, the Tribunal determined that it was reasonable and appropriate for the hearing to proceed by video connection. The Tribunal further advised that in the absence of any medical reports setting out why the hearing should not proceed at [the specified] time, and in circumstances where the representative was attending the hearing by telephone, the Tribunal considered the scheduled time of 10:30am to be reasonable. The Tribunal advised the applicant in its response that the hearing time and date, and the type of hearing remain unchanged.

9. The applicant and her representative did not attend the test dial scheduled prior to the hearing. The applicant and her representative advised on the morning of the hearing that the applicant could not attend by video connection because of a power outage. The applicant and her representative were attending the hearing by telephone together. The Tribunal had a discussion with the applicant and her representative as to whether the power outage would be of short duration, and whether the applicant requested the Tribunal to wait till power was resumed. Both the applicant and her representative advised the Tribunal that they were content for the applicant to participate in the hearing by telephone. In the circumstances of this review the Tribunal considered it appropriate for the applicant to attend the hearing and give her evidence by telephone.

10. The applicant attended the hearing before the Tribunal by telephone on 15 May 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Khmer and English languages. The interpreter attended the hearing by video.

11. The applicant was represented in relation to the review. The representative attended the hearing by telephone with 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 the present case is whether the applicant meets the time of application requirements for the subclass 808 visa.

14. The applicant had provided the tribunal with a copy of the Department’s decision record dated 2 December 2020. The Tribunal has considered the submission provided to the Department, in which the representative submitted that the applicant understands she is not eligible for the visa for which the application is made, and that the applicant understands there are no prospects of success in this application, which is acknowledged in her personal statement. The representative submitted that the only reason for the application for the visa is to seek a pathway to make an application for Ministerial Intervention at a later stage. The tribunal also considered the review applicant’s personal statement provided with her application for the visa.

15. The applicant provided the Department with a copy of her daughter’s birth certificate, confirming she was born in Phnom Penh, Cambodia in [year], and with a copy of her Australian passport issued [in] 2017 confirming she is an Australian citizen, as well as a Cambodian citizen.

16. The applicant provided the tribunal with copies of her [Bank] statements, and referred the tribunal to the ‘sources’ of deposits or financial support. Based on the information provided by the applicant, the tribunal is satisfied that the applicant receives income from a newstart payment from Centrelink, and the payments from the applicant’s daughter’s father. The applicant also told the tribunal she has been employed at a [workplace] for approximately two years.

17. In the applicant’s evidence, from her written statement and her oral evidence, she confirmed she had a de facto relationship with her daughter’s father from 2010 and that the relationship had started to deteriorate prior to her daughter’s birth in [year]. The applicant’s evidence is that her daughter’s father commenced a relationship with another woman, whom he sponsored to come to Australia as his partner, and with whom he currently resides and with whom he has two children. The applicant’s evidence is that after the birth of her daughter, her daughter’s father paid the rent for her apartment and financial support for her daughter for [number of] years until 2019. The applicant told the tribunal that her daughter’s father ceased paying the rent for the apartment and any support for her daughter in 2019. The tribunal accepts the applicant’s evidence that the daughter’s father told the applicant he understood that she was in a relationship with another person, and he was not going to continue to pay the rent for her apartment; further he had doubts about his paternity of the child.

18. The applicant stated in her evidence that she came to Australia to confront her daughter’s father about continuing to provide financial support for her daughter and herself. The applicant stated that her daughter’s father indicated he would resume paying the child support, but that she should return to Cambodia.  The applicant stated she had doubts that he would pay child support to his daughter if she returned to Cambodia. The applicant and her representative told the tribunal that the applicant is currently paying $1788 per month in child support to the applicant. The applicant stated she sometimes has to remind her daughter’s father about the payments. The applicant’s representative submitted they had been involved in processes that were undertaken to enforce the child support payments on behalf of the applicant and her daughter.

19. The tribunal is satisfied based on the child’s birth certificate, and the current child support arrangements, that the issue of paternity is not in dispute.

20. The applicant’s representative submitted that the applicant’s daughter’s father had abandoned her. The Tribunal does not accept that the child was abandoned by her father, who paid child support for her and the rent of the apartment where she lived with her mother for [number of] years after her birth until 2019, and has paid child support after the applicant and her daughter arrived in Australia in 2019. The Tribunal accepts the evidence of the applicant that the relationship had deteriorated prior to the birth of the child, that the relationship had become on-again and off-again, and that she and the child’s father were separated at the time of the birth of the child.

21. The applicant’s representative submitted that if the applicant returned to Cambodia, her ability to maintain or enforce the child support payments would be greatly reduced, and practically impossible. The tribunal was not provided with any current Child Support Agency order or court order, and does not know the nature of the process or processes that the applicant had to undertake to enforce the payment of child support. The tribunal accepts that the child’s father paid child support for [number of] years from [year] to 2019, including paying for the rent of the Phnom Penh apartment the applicant and her daughter resided in.

22. The tribunal accepts the evidence that the applicant had been running her own business, prior to coming to Australia in 2019. The applicant and her representative submitted that the applicant would have difficulty finding employment if she had to return to Cambodia.

23. The applicant told the tribunal that her daughter misses her grandparents, and they keep in contact by video call. She stated her parents live in Phnom Penh, and they are supportive of her and her daughter. The applicant stated she could reside with her parents if she returned to Cambodia but this would be financially difficult. The applicant stated she has one sibling, a sister who resides in [Country 1]. The applicant stated that if her daughter wished to learn English at school in Cambodia she would have to go to a private school and this would be expensive. The applicant stated the educational opportunities in Australia are preferable to those in Cambodia. The applicant stated her daughter is currently in [a grade] in primary school, speaks English confidently, and has completed three years of primary school.

24. The applicant stated that her daughter would be subject to the risk of rape and kidnapping if she returned to Cambodia, because she was female and young. The applicant’s representative submitted the applicant came from an upright and respected, but not wealthy family. There is no evidence to indicate that the applicant’s daughter is in a class of persons that would be particularly vulnerable to become a victim of violent crime.  The tribunal accepts that Cambodia has a low socio-economic base and has recorded significant poverty levels consistent with relevant crime records.

25. The applicant’s representative stated that the applicant and her daughter would be at risk of being socially isolated. The Tribunal accepts the evidence before it that the applicant was running her own business in Phnom Penh, which she closed when she decided to come to Australia in 2019. The Tribunal accepts the evidence before it that the applicant’s parents are emotionally supportive of her and their granddaughter. There is no evidence before the tribunal that the applicant was socially stigmatised due to have been in a de facto relationship, and due to being separated from her daughter’s father, prior to her coming to Australia in 2019. The evidence before the tribunal is the applicant’s family accepted her relationship with her daughter’s father, and accepted her daughter after her birth.

26. The applicant told the tribunal at the commencement of the hearing that the information is recorded in the Department’s decision record that she came to Australia as the holder of a tourist visa is correct. The applicant stated to the tribunal that she last came to Australia on [date] December 2019.

27. The time of application criteria to be met for the subclass 808 visa in subdivision 808.21, are set out in cl.808.211A, which requires that the applicant satisfies (a) clauses 808.211 and 808.212; or (b) cl.808.213.

28. Clause 808.211 requires that of the time of application the applicant is the holder of a Resident Return (temporary) visa or is the holder of an Emergency (Temporary) visa or is the holder of a Border (Temporary) visa or is the holder of a Class 30I (Australian requirement) entry permit or visa. The Tribunal is satisfied that the applicant at the time of application was the holder of a subclass 600 tourist visa, and does not meet any of the requirements of cl.808.211. Therefore the Tribunal finds that the applicant does not meet the requirements of cl.808.211A(a).

29. Clause 808.213 requires that an applicant is or has been lawfully present in Norfolk Island or the applicant is or has been lawfully present in a place elsewhere in Australia, has not turned 25, and is the dependent child of the person who is ordinarily resident in Norfolk Island and lives or has lived in that place for the purpose of study, and while living there meets visa condition 8015. The tribunal is satisfied based on the evidence before it, that the applicant had not and was not at the time of application lawfully present in Norfolk Island, and was not, alternatively the dependent child of a person who is ordinarily resident in Norfolk Island. The tribunal is satisfied that the applicant does not meet the requirements of cl.808.213. Therefore the tribunal finds that the applicant does not meet the requirements of cl.808.211A(b).

30. The tribunal has taken into account the submissions and evidence of the applicant and a representative, that she does not meet the criteria for a subclass 808 visa.

31. For all the above reasons, the tribunal is satisfied that the applicant does not meet the time of application criteria for a subclass 808 Confirmatory (Residence) visa.

32. Therefore the decision of the Department in this review must be affirmed.

    DECISION

33. The Tribunal affirms the decision not to grant to the applicant a subclass 808 Confirmatory (Residence) (class AK) visa.

    Ministerial intervention

34. The Tribunal has considered many of the submissions provided in support of the application for a recommendation for Ministerial Intervention. The Tribunal does not accept on the evidence before it that the applicant’s daughter has been abandoned by her father, or that on the evidence before it that the applicant’s daughter faces significant risk of harm through being the victim of crime or social isolation, if she returns to Cambodia.

35. However the Tribunal does accept that there are strong compassionate circumstances that if not recognised could result in serious or irreversible harm to an Australian citizen, namely the applicant’s daughter, if her mother had to return to Cambodia. The Tribunal has considered Australia’s international obligations as a signatory to the Convention on the Rights of the Child, and the International Covenant on Civil and Political Rights. The Tribunal recommends the Minister consider the exercise of the discretion pursuant to s.351 of the Act, on the basis the child of the applicant is an Australian citizen, and it is in the best interests of the child to remain with her mother, and in Australia that child has the opportunity to avoid poverty and to access educational opportunities.

    Margie Bourke

    
    

    Member