Amestica Merino (Migration)

[2022] AATA 3318

Amestica Merino (Migration) [2022] AATA 3318 (24 August 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Camila Belen Amestica Merino

REPRESENTATIVE:  Mr George Lombard (MARN: 9601056)

CASE NUMBER:  2100798

HOME AFFAIRS REFERENCE(S):          CLF2020/10753

MEMBER:Kira Raif

DATE:24 August 2022

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the visa applicant an Extended Eligibility (Temporary) (Class TK) visa.

Statement made on 24 August 2022 at 9:24am

CATCHWORDS

MIGRATION – Extended Eligibility (Temporary) (Class TK) visa – Subclass 445 (Dependent Child) visa – visa applicant was not a child of a visa-holding parent – applicant’s mother ceased to be a holder of a Subclass 820 visa upon the grant of the Subclass 801 visa – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 65, 351

Migration Regulations 1994, rr 1.03, 1.05, Schedule 2, cls 445.211, 445.221

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 6 January 2021 to refuse to grant the visa applicant a Extended Eligibility (Temporary) (Class TK) Subclass 445 visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicant is a national of Chile, born in November 1993. The visa applicant applied for the visa on 19 December 2019. The delegate refused to grant the visa on the basis that cl. 445.221 was not met because the visa applicant was not a child of a visa-holding parent. The applicant seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal on 10 August 2022 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s mother Ms Moya. The Tribunal hearing was conducted with the assistance of an interpreter in the Spanish and English languages. The applicant was represented in relation to the review. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   Relevant law

4. At the time the visa application was lodged, the Extended Eligibility (Temporary) (Class TK) visa contained only one subclass - Subclass 445 Dependent Child visa: Item 1211(4) of Schedule 1 to the Regulations.

5. The criteria for a Subclass 445 visa are set out in Part 445 of Schedule 2 to the Regulations. The primary criteria require that at the time of application, the visa applicant must be a ‘dependent child’ (as defined in r.1.03 and r.1.05A) of an Australian citizen, the holder of a permanent visa, or an eligible New Zealand citizen, who has not turned 25: cl.445.211(a). ‘Dependent child’ is defined in r.1.03 of the Regulations.

6. The other primary criterion to be satisfied at the time of application for this Subclass, is that the visa applicant is sponsored by the nominator or sponsor of the visa-holding parent: cl.445.211(b). At the time of decision, cl. 445.221 provides that the parent of the applicant must continue to be a visa-holding parent. Clause 445.111 relevantly defines a visa-holding parent as follows:

   For this Part, the parent of an applicant is a visa-holding parent if he or she holds any of the following visas:

   (a)Subclass 309 (Spouse (Provisional));

   (aa)Subclass 309 (Partner (Provisional));

   (b)Subclass 310 (Interdependency (Provisional));

   (c)Subclass 445 (Dependent Child);

   (d)Subclass 820 (Spouse);

   (da)Subclass 820 (Partner);

   (e)Subclass 826 (Interdependency).

   Is the parent a visa holding parent?

7. When making the application, the applicant claimed to be a dependent child of her mother. Electronic records before the Tribunal indicate that the applicant’s mother was granted the permanent Subclass 801 visa in December 2019, shortly after the application was made. The delegate provided that information to the applicant in accordance with s. 57 of the Act and the Tribunal also wrote to the applicant on 1 July 2022 pursuant to s. 359A of the Act. In oral evidence, the applicant confirmed that her mother has been granted a permanent Partner visa. Ms Moya told the Tribunal that when the application was made, she had not yet been granted the permanent visa and there was some time to go before the permanent visa was to be granted.

8. In her written submission to the Tribunal dated 8 July 2022 the applicant raised some concerns with the Department’s processing of her application but these are not matters with respect to which the Tribunal has any jurisdiction, nor control. The applicant also refers to s. 82(2) of the Act and cl. 820.511 of the Regulations, although the applicant’s argument in relation to these provisions is unclear.

9. The applicant’s representative submits there are two issues. The representative submits that even if the temporary visa has ceased, there is nothing to suggest that Ms Moya no longer ‘holds’ the temporary visa as it is possible to hold more than one visa at any one time. The second issue is in relation to Schedule 2 which provides when the visa is in effect, but not when the visa can be held and the representative submits that a visa can be held when it is not in effect.

10. The Tribunal finds that  the applicant’s mother has been granted a subclass 801 visa in 2019. The Tribunal finds that upon the grant of that visa,  the mother’s previously held subclass 820 visa had ceased to be in effect, in accordance with s. 82. The Tribunal rejects the submission that when a visa ceases or is no longer in effect either under operation of s. 82 or in accordance with the relevant part of Schedule 2, one can or does continue to be a holder of that visa. In the Tribunal’s view, there is nothing in the legislation to support that interpretation and that interpretation is completely impracticable and unworkable. If that approach was taken, a person could continue to be a holder of numerous visas that had already ceased to be in effect, with different visas being subject to a variety of conditions and possibly imposing a variety of obligations upon the holder of visa, which could potentially be conflicting or contradictory.

11. The Tribunal acknowledges, and accepts, the representative’s submission that the legislation uses different phrases such as ‘a holder of a visa’ and ‘when visa ceases’ but in the Tribunal’s view, the most sensical and practical interpretation, and the one that was intended by the drafters of the legislation, is that when visa ceases to be in effect, a person is no longer a holder of that visa.

12. The representative also submits that the Migration Act subjugates the rights of women and is patriarchal and it may not have been appropriate for Ms Moya to be informed of visa decisions through her husband. The Tribunal does not accept that argument as the Act provides for notification to a visa applicant through an authorised recipient, irrespective of their gender and relationship with the visa applicant and it is equally common for authorised recipients to be female in relation to male applicants. The Tribunal does not consider the notification provisions of the Act to be invalid because of any implied unfairness or their patriarchal nature, even if in this case Ms Moya was notified of visa grant through her husband.

13. Further, the Tribunal is mindful that an invalid notification, even if established (and the Tribunal has formed the view that there is no basis for that finding), does not invalidate the visa grant to Ms Moya.

14. The Tribunal finds that upon the grant of the Subclass 801 visa, the applicant’s mother ceased to be a holder of a Subclass 820 visa. There is no evidence before the Tribunal to indicate that at the time of this decision, the applicant has a visa holding parent. The Tribunal is not satisfied the visa applicant meets cl. 445.221.

15. The applicant has requested that the Tribunal refer the case to the Department for consideration by the Minister pursuant to s 351 which gives the Minister a discretion to substitute for a decision of the Tribunal another decision that is more favourable to the applicant, if the Minister thinks that it is in the public interest to do so. Ms Moya told the Tribunal that her daughter has been living in Australia for a number of years, she is settled here and her entire family are in Australia and she has no family overseas. Ms Merino refers to receiving threats in her home country and lack of safety. She states that her father lives in Chile but they have no contact and the relationship has been fractured. She states that the idea of returning to Chile is affecting her mental health. Ms Moya told the Tribunal that when they made the application, they followed the legal requirements and acted in good faith and she sponsored her daughter to avoid the risky situation in Chile.  

16. In her post-hearing submission the applicant also states that the Department’s failure to properly manage the application process should also be considered as a basis for Ministerial referral. The Tribunal is not convinced that there was any failure in the process because, in the Tribunal’s view, there was no obligation on the Department to manage all applications that may have been relevant to the application made by the applicant’s mother and to consider these in any particular order. While it may have been preferable for the Child application to be considered before the mother’s permanent visa was granted, there was no obligation on the Department to do so and it may have been preferable for the applicant herself to manage that process. The Tribunal does not consider that  the claimed failure to manage the process constitutes a reason for the Ministerial referral by this Tribunal.

17. The Tribunal has also considered a statement prepared by Rusty Young. Mr Young’s qualification in preparing that report are somewhat unclear and the Tribunal has not tested the evidence contained in Mr Young’s statement and various attachments. In the Tribunal’s view, these matters would be more properly addressed through a different visa process where the evidence can be tested and findings made against the appropriate visa category. The Tribunal is not prepared to make the referral on the basis of untested and unverified evidence.

18. The Tribunal has considered the applicant’s case and the ministerial guidelines relating to the discretionary power set out in the Department’s Procedures Advice Manual (PAM3). The Tribunal has formed the view, on the evidence before it, that the circumstances of this case do not fall within the guidelines and has decided not to refer the matter. The Tribunal notes that the applicant can still make a request directly to the Minister.

    decision

19. The Tribunal affirms the decision not to grant the visa applicant an Extended Eligibility (Temporary) (Class TK) visa.

    Kira Raif
    Senior Member