Augerea (Migration) - [2020] AATA 5913

Augerea (Migration) [2020] AATA 5913 (17 November 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ms Avia Kwari Augerea
CASE NUMBER:  1821042
HOME AFFAIRS REFERENCE(S):          BCC20183925177
MEMBER:Frances Simmons
DATE:17 November 2020
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the visa applicant a Visitor (Class FA) visa.

Statement made on 17 November 2020 at 5:40pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – subclass 600 (Visa) – Visitor stream – visa applicant wanted to remain permanently in Australia - not the purpose of a visitor visa - exceptional circumstances – adoption order–decision under review affirmed

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 600.211, 600.215

CASES
An v Minister for Immigration and Citizenship [2007] FCAFC 97
Hatcher v Cohn [2004] FCA 1548
Wang v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 918
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 3 July 2018 to refuse to grant the visa applicant a Visitor (Class FA) visa under s.65 of the Migration Act 1958 (the Act).The visa applicant applied for the visa on 25 June 2018. At the time the visa application was lodged, Class FA contained one subclass, Subclass 600 (Visitor), with a number of different streams. In this case the applicant applied for the visa seeking to satisfy the primary criteria in the tourist stream.
The criteria for a Subclass 600 visa are set out in Part 600 of Schedule 2 to the Migration Regulations 1994 (the Regulations). Relevantly to this case, they include cl.600.211, which requires the visa applicant to satisfy the Minister that the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted. Clause 600.215 requires that where the grant of the visa would result in the applicant staying consecutively in Australia for more than 12 months, there must be exceptional circumstances for the grant of the visa.
Mr Peter Augerea appeared before the Tribunal on 16 November 2020 to give evidence and present arguments on behalf of the review applicant. The review applicant is an eleven-year-old child and the Tribunal is satisfied, based on the documentation before it, that Mr Peter Augerea is her father. Where a parent or guardian holds him or herself out as acting as the representative for an applicant who is a minor, the Tribunal is entitled under the common law and the Migration Act to treat those actions of the parent or guardian undertaken on behalf of the applicant as the actions of the applicant.[1]
[1] In SZLSM v MIAC (2009) 176 FCR 539 at [24.
The Tribunal exercised its discretion to hold the hearing by telephone. The Tribunal determined it was reasonable to hold a hearing in this manner, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had…

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.

Continue reading Augerea (Migration)

Details

AGLC: Augerea (Migration) [2020] AATA 5913
Case: [2020] AATA 5913
Decision Date

CaseChat Overview and Summary

The Administrative Appeals Tribunal reviewed a decision concerning a child, the review applicant, who was born in Papua New Guinea and held PNG citizenship. The applicant, represented by Mr Peter Augerea, an Australian citizen, had applied for a subclass 600 visitor visa. The applicant had previously entered Australia on visitor visas and her current visa application was made in June 2018, with a bridging visa A granted in association. The application was refused by the delegate on the basis that the applicant did not meet clause 600.215 of the Migration Regulations 1994, which requires exceptional circumstances for the grant of a visa if it would result in the applicant staying in Australia for more than 12 months consecutively.

The primary legal issue before the Tribunal was whether exceptional circumstances existed to justify granting the subclass 600 visa, as required by clause 600.215. This clause is engaged because the applicant's intended stay in Australia, if the visa were granted, would exceed 12 months consecutively. The Tribunal was required to assess the evidence presented, including documentation relating to an adoption process in both Papua New Guinea and Australia, to determine if the threshold of exceptional circumstances was met.

The Tribunal considered evidence that the applicant had been in the care of Mr and Mrs Augerea, who are Australian citizens, since she was a baby. An adoption order was granted in Papua New Guinea in October 2015, and Mr Augerea is the paternal uncle of the child's biological mother. Northern Territory Wide Services for Territory Families assessed the Augereas' adoption application and provided a letter stating that exceptional circumstances existed, including that the Augereas had been the child's parents since birth and had adopted her legally and traditionally in PNG. However, the Tribunal concluded that these circumstances did not meet the threshold for exceptional circumstances as required by clause 600.215. Consequently, the Tribunal found that the applicant was not eligible for the grant of the visa sought.

The Tribunal affirmed the decision not to grant the applicant a Visitor (Class FA) visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.CONSIDERATION OF EVIDENCE AND CLAIMS Background The review applicant in this case is a child who was born in Papua New Guinea on 6 April 2011. She is a citizen of PNG and a copy of the biodata page of her PNG passport appears on the Tribunal file. The review applicant was represented before the Tribunal by Mr Peter Augerea. Mr Augerea is an Australian citizen and a copy of the biodata page of his Australian passport and Australian citizenship certificate appear on the Tribunal file. The information before the Tribunal indicates that Miss Augerea was granted a visitor visa in May 2015 and has travelled in and out of Australia on visitor visas on multiple occasions between 2014 and 2017 when she last entered Australia. She last arrived in Australia on 3 July 2017 as the holder of a visitor visa that remained in effect until 3 July 2018. She made her current subclass 600 visa application on 25 June 2018 and was granted a bridging visa A in association with that visa application. The reason for the visa application was ‘adopting of Avia Kwari Augerea still progressing’. Clause 600.215 requires that where the grant of the visa would result in the applicant staying consecutively in Australia for more than 12 months, there must be exceptional circumstances for the grant of the visa. In this case the delegate was not satisfied that exceptional circumstances existed and refused to grant the visa on the basis the visa applicant did not meet cl.600.215. The application for review was accompanied by a letter from Deborah Moore, a senior adoption practitioner, at the Northern Territory Wide Services for Territory Families dated 5 July 2018. Relevantly, this letter states: Mr and Mrs Augerea have applied to be assessed to adopt Miss Avia Kwari Augerea n regards to her best interest and wellbeing under the Adoption of Children Act 1994. It is my understanding that if an adoption order is granted that they will apply for a Child visa (subclass 802)Mr Peter and Mrs Avia Augerea are Australian citizens and have requested the Territory Families Adoption Unit provide evidence of their involvement with us regarding their adoption application for this child to the Department of Home Affairs. The couple first contacted the adoption unit Oct/Nov 2015 initially about their desire to adopt the child who has been in their care since she was a baby. Mr Augerea is [the] paternal uncle of the child’s biological mother. The Papua New Guinea National Court of Justice granted an Adoption Order dated 1 October 2015 as the child’s birth mother and extended family were unable to care for her. On 29 October 2020 the Tribunal received a copy of a letter from the Acting Senior Director at the Northern Territory Wide Services for Territory Families dated 15 November 2018. This letter, which is addressed to Mr and Mrs Augerea, states that their circumstances have been assessed under the Adoption of Children Act 1994 in regards to a non-citizen child. The letter continues that, in the opinion of Territory families, exceptional circumstances exist which mean the granting of the adoption order for Miss Augerea would be in her best interests. The exceptional circumstances include that Mr and Mrs Augerea have been her parents she was born and have adopted her both legally and traditionally in PNG. The letter notes an adoption order will confer on them the same rights and responsibilities as if they were Miss Augerea’s biological parents.

Decision

Reasons for decision

As the Tribunal finds there are no exceptional circumstances in this case, cl.600.215 (1) is not met, and accordingly cl.600.215 is not met and the applicant is not eligible for the grant of the visa sought.DECISION The Tribunal affirms the decision not to grant the visa applicant a Visitor (Class FA) visa.F. SimmonsMember

Ratio Decidendi

Legal Principle Established

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