Ame (Migration)

[2024] AATA 330

Ame (Migration) [2024] AATA 330 (1 February 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Amos Bode Ame

REPRESENTATIVE:  Ms Lauri Stewart

CASE NUMBER:  2321238

HOME AFFAIRS REFERENCE(S):          BCC2023/6443414

MEMBER:Tegen Downes

DATE:1 February 2024

PLACE OF DECISION:  Brisbane

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

Statement made on 01 February 2024 at 2:06pm

CATCHWORDS

MIGRATION – Partner (Residence) (Class BS) visa – Subclass 801 (Partner) – genuine and continuing partner relationship – technical failure in primary decision – lengthy delay in notification – holder of a Partner (Temporary) visa – request for Ministerial Intervention – unintended consequences of legislation – citizenship in Papua New Guinea – decision under review affirmed      

LEGISLATION

Migration Act 1958, ss 5, 36, 46, 65, 349, 351
Migration Regulations 1994, Schedule 2, cls 801.211, 801.221, 814.221, 820.221; r 1.15

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 18 December 2023 to refuse to grant the applicant a Partner (Residence) (Class BS) visa under section 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on or about 21 January 2001 on the basis of his relationship with his then-de facto partner (the nominator).

3. The delegate refused to grant the visa on 19 December 2023, almost 23 years after the application was made.

4. The applicant appeared before the Tribunal on 31 January 2024 to give evidence and present arguments.

5. The applicant was represented in relation to the review. The representative appeared at the hearing by Microsoft Teams. Prior to the hearing, the representative filed written submissions dated 28 January 2024.

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

   ISSUES AND LAW

7. This case concerns the applicant’s application for a permanent partner visa, which would enable him to remain in Australia as a permanent resident.

8. Generally, there is a two-stage process before a permanent visa is granted in the partner migration stream. First, a provisional (temporary) visa is granted and then, usually after two years and if the relationship is ongoing (subject to some exceptions), the permanent visa may be granted.

9. An applicant applies for the provisional and permanent visas at the same time and place, and the visa application charge is only payable on the permanent visa application. If the criteria for the provisional visa are met, the visa is granted to allow the applicant to stay in Australia until a decision on the permanent visa is made.

10. The first issue in the present case is whether the applicant meets the criteria in either Part 801 or Part 814 of the Regulations for the grant of a permanent visa. Part 801 and Part 814 do not contain any criteria to be satisfied at the time of application. They only contain criteria to be satisfied at the time of decision. Critically, each of the subclauses of 801.22 has as a criterion that, at the time of decision, the applicant is the holder of a Subclass 820 visa (being the temporary partner visa). Similarly, each of the subclauses of 814.22 has as a criterion that, at the time of decision, the applicant is the holder of a Subclass 826 visa (being the temporary interdependency visa).

11. If the first issue is not resolved in the applicant’s favour, the second issue is whether I should, per the applicant’s request, refer the matter to the Minister for ministerial intervention under s 351 of the Act. This section 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 under s 349 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.

12. The Tribunal has no statutory obligation to consider whether a matter should be referred to the Minister, and there is no statutory power for the Tribunal to make a binding recommendation. Nonetheless, I have considered the applicant’s request.

13. The President’s Direction - Conducting Migration and Refugee Reviews dated 1 August 2018 provides that, in relation to a referral from the Tribunal for ministerial intervention:

    16. Referrals for ministerial intervention

    16.1 Members should have regard to the ministerial guidelines when considering whether or not a case should be drawn to the attention of the Minister. When a member considers that a case should be brought to the Minister’s attention, the member may refer the case to the Department. The member’s views will be brought to the Minister’s attention by the Department under the guidelines.

    16.2 The member may refer a case to the Department on the basis that the member considers that there are facts or circumstances warranting further investigation by the Department before referral to the Minister.

    16.3 The circumstances which the member considers warrant the case being brought to the Minister’s attention should be set out in the member’s statement of decision and reasons and may also be set out in the referral letter to the Department.

    16.4 If an applicant requests a member to refer a case to the Department and the member decides not to do so, the member should refer to the request in the statement of decision and reasons and note that the applicant may make a request directly to the Minister.

    16.5 If the AAT has no jurisdiction to conduct a review, the Minister has no power under section 351 or section 417 to intervene. In such circumstances, the case should not be referred to the Department.

14. Relevantly, the Minister's guidelines on ministerial powers (s351, s417 and s501J) (Guidelines) provide:

    Cases that have one or more unique or exceptional circumstances, such as those described below, may be referred to me for possible consideration of the use of my intervention powers:

    ·strong compassionate circumstances that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to an Australian citizen or an Australian family unit, where at least one member of the family is an Australian citizen or Australian permanent resident

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

    ·exceptional economic, scientific, cultural or other benefit would result from the person being permitted to remain in Australia

    ·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

    ·the Department has determined that the person cannot be returned to their country/countries of citizenship or usual residence due to circumstances outside the person’s control

    ·a person’s particular circumstances or personal characteristics provide a sound basis for believing that there is a significant threat to their personal security, human rights or human dignity if they return to their country of origin, but the mistreatment does not meet the criteria for the grant of any type of protection visa. For example, systematic harassment or denial of basic rights available to others in their country, or the person has experienced torture or trauma in their country of origin and is likely to experience further trauma if returned to that country

    ·the person is excluded from the grant of a protection visa or has had a protection visa cancelled or refused on character grounds and their circumstances have been assessed as engaging Australia’s non-refoulement obligations because there are substantial grounds for believing that, as a necessary and foreseeable consequence of the person being removed from Australia to a receiving country, there is a real risk that the person will suffer significant harm as provided in section 36(2A) of the Act.

    BACKGROUND

15. The applicant is a 56-year-old citizen of Papua New Guinea. He first came to Australia in 1993 and has spent periods of time in the country on various visas, including Tourist, Sport and Bridging visas.

16. Relevantly to this application, on 21 January 2001, the applicant lodged a combined application for a Partner (Temporary) (Class UK) visa and a Partner (Residence) (Class BS) visa, on the basis of a de facto relationship with the nominator.

17. At the time the visa application was made:

    a.Class UK relevantly contained two subclasses: Subclass 820 (Spouse) and Subclass 826 (Interdependency). The criteria for these visas were set out in Part 820 and Part 826 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations); and

    b.Class BS contained two subclasses: Subclass 801 (Spouse) and Subclass 814 (Interdependency). The criteria for these visas were set out in Part 801 and Part 814 of Schedule 2 to the Regulations, respectively.

18. On 22 April 2002, the delegate refused to grant the Partner (Temporary) (Class UK) visa. Relevantly, the decision record provides to the effect that:

    a.The delegate was not satisfied that the applicant was the ‘spouse’ of the nominator. As a result, the applicant did not meet the criteria of subclause 820.221 of Schedule 2 to the Regulations.

    b.The applicant had not submitted any claims in respect of Subclass 826 and there was no evidence suggesting that the applicant had any possible claims under that subclass.

19. Regrettably, the delegate failed to include in the decision record a decision with respect to the Partner (Residence) (Class BS) visa. This was a technical failure of procedural fairness and, for the reasons set out elsewhere in this decision, have not, in my view, adversely affected the applicant’s position.

20. The applicant sought review of the delegate’s decision before the Tribunal’s predecessor, the Migration Review Tribunal. On 21 July 2003, the Tribunal affirmed the delegate's decision on the basis that the applicant did not meet the Schedule 3 criteria for the grant of a temporary visa and there were no compelling or compassionate circumstances for waiving the criteria.

21. Relevantly to this application, the Tribunal decision states:

    2. The visa application form completed by the applicant incorporated an application for a permanent visa, a Partner (Residence) (Class BS) visa, which normally cannot be granted until 2 years have elapsed since the lodgement of the application, and an application for a temporary visa, a Partner (Temporary) Class UK visa, which can be granted immediately, to permit stay until a decision is made on the permanent visa application, before permanent residence is confirmed. The delegate’s decision to refuse to grant the visa was made on 22 April 2002.

    …

    4.The visa applicant lodged one application for review form and paid one fee and there is some question as to which of the two decisions is to be reviewed by the Tribunal – the decision to refuse to grant a Class UK visa or the decision to refuse to grant a Class BS visa. The obvious intention behind the application for review is to seek a review of whatever decisions prevented the visa applicant from gaining residence on spouse grounds, and the necessary first step is the review of the decision to refuse to grant the Class UK visa. The Tribunal is therefore proceeding on the basis that this review is in respect of the decision to refuse to grant the Class UK visa.

22. According to the department file, the applicant was notified of the Tribunal’s decision and that, if he disagreed with it, he may seek judicial review of the Tribunal’s decision. No application for judicial review was made. The applicant confirmed at the hearing that he was notified of the Tribunal’s decision.

23. The applicant gave evidence at the hearing that he remained in a relationship with the nominator until he was detained and ultimately deported from Australia in 2011. He gave evidence that there was a child born of the relationship, who is now an adult. He gave evidence to the effect that the relationship has ended but he still holds the nominator and his son in his heart. He does not know their current whereabouts – in Australia or New Zealand where the nominator is also a citizen – but he would like to find them.

24. The applicant returned to Australia on 6 April 2023 as an Unlawful Maritime Arrival. He was detained on 15 April 2023 and remains in immigration detention.

25. According to the department’s case notes, upon reviewing the applicant’s immigration history, the department identified the notification error referred to in paragraph ‎19 of this decision. In order to rectify this error, on 19 December 2023, the department issued a decision record with respect to the Partner (Residence) (Class BS) refusal.

26. Relevantly, the decision record states in relation to Subclass 801:

    At the time the application was made, subclause 801.221(1) stated that:

    The applicant must, at time of decision, meet the requirements of the then subclause (2), (3), (4), (5), (6) or (8) of clause 801.221 of Schedule 2 to the Regulations.

    The aforementioned subclause (2), (3), (4), (5) and (6) of clause 801.221 each includes that:

    “the applicant is the holder of a Subclass 820 (Spouse) visa.”

    At the time of this decision, I find that you are not the holder of a subclass 820 visa, because Departmental records indicate that a Subclass 820 visa has never been granted to you.

    Accordingly, I am not satisfied that you meet the requirements of subclause 801.221(2), (3), (4), (5) or (6) because at the time of this decision you are not the holder of a Subclass 820 visa.

    As you do not satisfy any of subclauses (2), (3), (4), (5), (6) or (8) I find that you do not satisfy subclause 801.221(1) and therefore that you do not meet the legal requirements in clause 801.221 of Schedule 2 to the Regulations on the date I made my decision.

27. Relevantly, the decision regard states in relation to Subclass 814:

    Subclause 814.221(1) stated that:

    The applicant must, at time of decision, meet the requirements of subclause (2), (3), (4), (5), (7) or (8) of clause 814.221 of Schedule 2 to the Regulations.

    The aforementioned subclause (2), (3), (4), (5) and (8) of clause 814.221 each includes that:

    “the applicant is the holder of a Subclass 826 (Interdependency) visa.”

    At the time of this decision, I find that you are not the holder of a subclass 826 visa, because Departmental records indicate that a Subclass 826 visa has never been granted to you.

    Accordingly, I am not satisfied that you meet the requirements of subclause 814.221(2), (3), (4), (5) or (8) because at the time of this decision you are not the holder of a Subclass 826 visa.

    Furthermore, I am not satisfied that you meet the requirements of subclause 814.221(7) because you have not held a Subclass 826 visa that ceased on notification of a decision of the Minister to refuse a Subclass 814 visa.

    As you do not satisfy any of subclauses (2), (3), (4), (5), (7) or (8) I find that you do not satisfy subclause 814.221(1) and therefore that you do not meet the legal requirements in clause 814.221 of Schedule 2 to the Regulations on the date I made my decision.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Substantive visa application

28. I find that the applicant does not meet the criteria for the grant of the visa for the same reasons as the department.

29. At the hearing, I asked the applicant if he held a subclass 820 visa or a subclass 826 visa, and if he had ever held such visas. He said that he had not. I also confirmed this against Department records. The holding of such temporary visas is an essential criterion for the grant of a permanent visa. In the absence of holding such visas, the applicant cannot satisfy the criteria for a permanent visa.

30. The representative’s written submissions provide:

    “That had Mr Ame been notified of the Department’s error prior to his departure from Australia in 2011, or indeed any time prior to 2021, he may have been found to satisfy the requirements for the grant of a permanent Partner visa”

    …

    I am instructed that Mr Ame’s relationship with Ms Hala did not survive the physical separation which was caused by his immigration detention and subsequent departure from Australia. Further, Mr Ame’s son Amos Sunia is now over the age of 18 years. It is recognised that this prevents Mr Ame from satisfying subclause 820.221(3)(b), and in turn, subclause 801.211(6) of the Migration Regulations 1994 as it stood at the time of his application.

    Had the Department renotified Mr Ame before he was detained at Villawood in 2004, or before he departed Australia in 2011, the application before this Tribunal may have resulted in a different outcome. I am instructed that Ms Hala and Amos Sunia left Australia sometime after 2011 for New Zealand, where Ms Hala also holds Citizenship.

31. This submission is plainly without merit. The failure to notify the applicant of the decision with respect to the subclass 801 and subclass 814 visas did not materially prejudice the applicant’s position. It is an essential requirement for the grant of these visas that a temporary visa (either a subclass 820 or subclass 826 visa) has been granted. The department refused to grant such visas, the applicant was notified of the refusal decision, and the applicant unsuccessfully sought review of the refusal decision.

32. Upon being notified of the Tribunal’s decision with respect to the subclass 820 visa, it was open to the applicant to seek judicial review of the Tribunal’s decision if he disagreed with it, to make a fresh subclass 820 application, or to go offshore and apply for a subclass 309 visa. He did not take any of these actions. It is this inaction that has caused the applicant’s current predicament, not the failure to notify him, in a timely manner, of the refusal of his permanent visa application.

    Request for Ministerial Intervention

33. The representative written submissions set out several grounds to support the applicant’s request for ministerial intervention. For completeness, I have extracted the relevant sections of the submissions into this decision. I have carefully considered the submissions, as well as the evidence given by the applicant at the hearing. Respectfully, for the following reasons, I have decided not to refer the matter for ministerial intervention. It is open to the applicant to make this request directly of the minister.

34. The representative’s submission’s state:

    Circumstances not anticipated by relevant legislation; or clearly unintended consequences of legislation; or the application of relevant legislation leads to unfair or unreasonable results:

    It is never anticipated or intended that a government office will fail to properly notify an applicant of a decision. In these circumstances, as noted above, the delay in rectifying that notification error has potentially denied Mr Ame of the opportunity to satisfy the requirements for the grant of a permanent Partner visa, as his and Ms Hala’s son is now over the age of 18.

    It is submitted that the delay in correctly notifying Mr Ame of the decision to refuse his Partner (subclass 820/801) visa has resulted in an unfair result. Mr Ame remained in Australia for almost ten years after the Department’s initial or partial decision was notified. Throughout that time, his whereabout was known to the Department. Had Mr Ame been re-notified before his departure in 2011 (or indeed, any time up until 2021), he may have been found to satisfy the requirements for the grant of a permanent Partner visa.

1. I do not agree with this submission. The applicant was notified of the decision to refuse his subclass 820 visa. Any ‘unfairness’ has stemmed from the refusal of that visa, not from the delay in correctly notifying the refusal of the subclass 801. As mentioned in paragraph ‎32 of this decision, there were other courses of action available to the applicant which, if taken, may have resulted in a different outcome.

2. The representative also submits:

   Exceptional economic, scientific, cultural or other benefits that would result from Mr Ame being permitted to remain in Australia:

   Mr Ame has significantly contributed to Australian citizenship law, through the decision of the High Court of Australia in Re: Minister for Immigration and Multicultural and Indigenous Affairs; Ex Parte Ame [2005] HCA 36. It is recognised that Ex Parte Ame has shaped the way ongoing students of the law, understand citizenship. The Australian Parliament’s Parliamentary Library produced a research brief on the case and scholarly articles have been written about the matter. The case continues to be of significance to scholars and students.

   The arguments and ideas brought forward by Mr Ame continue to be of assistance to Australia’s highest judicial officers, and it is submitted that continuing exceptional cultural benefit would result from Mr Ame being permitted to remain in Australia.

3. I do not accept this submission. The claimed benefit arises regardless of the applicant’s presence in Australia.

4. Finally, the representative submits:

   [Details deleted.]

5. [Details deleted.]

6. At the hearing, the applicant gave further evidence to support his claim. Among other things, he gave evidence to the effect that:

   a.his separation from his partner and child ‘have always been a big burden on me, that we’ve been separated because of the laws or the policies, it’s destroyed my mind and thoughts and feelings’.

   b.[Details deleted].

   c.in relation to his mental state, that he is ‘just wrecked’, that he has attended six psychology sessions with IHMS appointed psychologists, and that but for his faith, he may have committed suicide.

7. I empathise with the applicant’s claims. However, I do not consider that the circumstances raised by the applicant are within the scope of the Guidelines.

8. Further, I note that the Guidelines provide that it would be inappropriate for the Minister to consider a request for ministerial intervention where ‘the person has an ongoing Ministerial intervention request under any of the powers covered by these guidelines’. While I note that the RAILS correspondence relates to a request for ministerial intervention that is not covered by the Guidelines, I am not minded to refer a second, identical request for ministerial intervention to the minister.

   DECISION

9. The Tribunal affirms the decision not to grant the applicant a Partner (Residence) (Class BS) visa.

   Tegen Downes
   Member