2319257 (Refugee) - [2024] AATA 2714

2319257 (Refugee) [2024] AATA 2714 (16 April 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 2319257

COUNTRY OF REFERENCE: Fiji
MEMBER:Senior Member G.A.F. Connolly
DATE:16 April 2024
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 16 April 2024 at 3:50pm
CATCHWORDS
REFUGEE – protection visa – Fiji – Federal Circuit Court remittal – contribution to the community – compassionate circumstances – citizenship qualifications of children – only family member who is not an Australian citizen – referral for Ministerial Intervention – decision under review affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975, s 43
Migration Act 1958, ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 48, 65, 104, 417, 423, 499
Migration Regulations 1994, Schedule 2
CASES
Abebe v Commonwealth (1999) 197 CLR 510
ABT16 v Minister for Home Affairs [2019] FCA 836
Aon Risk Services Australia Limited v Australian National University [2009] HCA 27
Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577
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 dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
Opening Statement

This case results from an application for review of a decision made by a delegate of the Minister for Home Affairs on 24 November 2023 (Minister’s Delegate) to refuse to grant the protection visas to the three applicants in this case (mother, son, and daughter) pursuant to s 65 of the Migration Act 1958 (Cth) (Migration Act). For the sake of succinctness, in these reasons, I will refer to the applicant mother as the applicant.
This is both an extraordinary complex and yet breathtakingly simple case. This case could have been – and should have been – resolved by the Department of Home Affairs (Department) much earlier and with finality. Instead, this is a case where both of the metaphorical departmental ‘hands’ resembled the notorious judicial description of notionally adversarial proceedings: “The torpid languor of one hand washes the drowsy procrastination of the other.”[1]
[1] Aon Risk Services Australia Limited v Australian National University [2009] HCA 27 at [156] per Heydon J.
This case should never, ever, have reached this Tribunal. This case should, instead, have been solved through the application of both a modicum of practical common sense and human decency, which one may like to think of as enduring aspects of the Australian character, but which was, here, submerged by a tsunami of bureaucratic inertia and curial formalism of the kind that all too often plagues these sorts of cases.
While this Tribunal cannot right every wrong of the executive government, its members must not, in discharging this Tribunal’s duty to be an instrument of ‘good government’[2], ever shy away from…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2024] AATA 2714
Decision Date: 16 April 2024

CaseChat Overview and Summary

This matter concerned a Fijian citizen who had resided in Australia for approximately 15 years. The applicant had been the primary carer for her Australian citizen mother for nearly 13 of those years, until her mother's passing in 2022. The applicant's father was also an Australian citizen, and she had numerous siblings who were Australian citizens residing in Australia. The applicant's two children were born in Australia and had only ever lived in Australia. The applicant applied to the Department of Home Affairs for a protection visa, acknowledging that she did not meet the standard requirements but intended to seek Ministerial Intervention. The decision under review was made by Senior Member G.A.F. Connolly of the Administrative Appeals Tribunal.

The primary legal issue before the Tribunal was whether the applicant met the criteria for a protection visa, notwithstanding her stated awareness that she did not meet the usual requirements and her intention to seek Ministerial Intervention. The Tribunal was also required to consider the applicant's circumstances, including her long-term residence in Australia, her role as a carer for her deceased Australian citizen mother, her status as the sole non-Australian citizen family member in Australia, and the fact that her children were Australian-born and had no connection to Fiji.

The Tribunal noted that the applicant had applied for a protection visa and stated in her application that she understood she did not meet the requirements but intended to seek Ministerial Intervention. The Tribunal acknowledged the applicant's extensive period of care for her mother, her lack of connections in Fiji, and the Australian citizenship and upbringing of her children. Despite these compassionate circumstances, the Tribunal affirmed the decision under review, which was a refusal of the protection visa. However, the Tribunal referred the applicant's case to the Minister for urgent and compassionate consideration, expressing the view that the matter should not have taken so long to reach this point.

Orders

Orders of the court

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Background

Background to the litigation

I have concluded this decision by referring this case to the Minister for their urgent and compassionate consideration of the applicant’s circumstances in a case that – I repeat – should never, ever, have taken this long to reach such an end.The Facts This female applicant is a Fijian citizen who has resided in Australia for approximately 15 years and who, for almost 13 of those years, was the primary carer of her mother, who was an Australian citizen. In fact, both her mother and her father were Australian citizens.[4] The applicant has numerous siblings who are also Australian citizens and who also live in Australia. The applicant’s status in her family seems to be that of the one family member who is not an Australian citizen. Indeed, the applicant’s late mother was the sponsor of the applicant’s original application for a Carer visa in 2008.[5][4] Department case file [number] of 06 October 2023 at page 17.[5] [Citation deleted.] On 02 October 2008, the applicant applied for her carer visa to come to Australia. The applicant was granted that visa and she became the full-time carer of her late mother, [named], who passed away in 2022. The applicant’s mother suffered in the period from 2008 to 2022 from a variety of serious medical conditions that the applicant helped her to live through and endure. On [date], the applicant’s son, [named], was born in Australia. The applicant’s son is now [age] years of age and has only ever lived in Australia. On [date], the applicant’s daughter, [named], was born in Australia. The applicant’s daughter is now [age] years of age and has only ever lived in Australia. On or about 13 May 2016, the applicant’s relationship with her husband, [named], ended, and the former husband left Australia to return to Fiji. This left the applicant here in Australia with her two young Australian-born children, caring for her (Australian citizen) mother.[6][6] Applicant’s statement dated 12 April 2024. For reasons that are set out in the decision of the Federal Circuit Court (Judge [named])[7], the applicant acted from 2008 onwards as her late mother’s carer until her late mother passed away in 2022. In all this time until now, the applicant has been in and remains in a most difficult position, whereby her late mother was an Australian citizen, as are most of her siblings, while the applicant is not herself an Australian citizen. Further, both her children were born in Australia and know only Australia. It is hard to think of why none of these pertinent facts would raise obvious questions among the directing minds of the Department but, sadly, those minds were either asleep or they were lost in what seems to be the not uncommon bureaucratic fog that engulfs our administrative state. [7] [Citation deleted.] On or about 06 October 2023, the applicant applied to the Department of Home Affairs for a protection visa. In that application, the applicant said this, repeatedly, in her form:Dear Immigration Officer,I have applied for a Protection Visa. I understand that I am affected by the "s48 bar" because I have been refused a Carer Visa,but I can make a valid application for this type of visa. I am aware that I do not meet the requirements for the grant of a Protection Visa,and that the visa will be refused. I will then apply to the Adminstrative Appeals Tribunal and then seek Ministerial Intervention.When I am at the stage of seeking Ministerial Intervention,I will bring to the Minister's attention that I came to Australia 15 years ago to care for my mother who was very unwell and I did care for her for many years but she passed away in 2022;I have no relatives or connections left in Fiji so would struggle to support myself and my children there; my children were born in Australia,only speak English and have never been to Fiji;my children will soon be Australian citizens. Therefore I'm kindly requesting that you reconsider my current situation and what I've been through from the time I looked after my mum till now and if you can permit us to remain permanently in Australia. Hoping all this will be taken into consideration when processing this application.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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