Codd (Migration)

[2023] AATA 1430

Codd (Migration) [2023] AATA 1430 (27 April 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Karle Ann Codd

REPRESENTATIVE:  Mr Pathmanathan Rama

CASE NUMBER:  2211466

HOME AFFAIRS REFERENCE(S):          BCC2018/128496

MEMBER:David Crawshay

DATE:27 April 2023

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a New Zealand Citizen (Family Relationship) (Temporary) (Class UP) visa.

Statement made on 27 April 2023 at 1:39pm

CATCHWORDS
MIGRATION –New Zealand Citizen (Family Relationship) (Temporary) (Class UP) visa – Subclass 461 – applicant was no longer in a relationship with Mr Keiran Francis Codd – applicant was in Australia at the time of application – applicant had not become a member of the family unit of another person at that time – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 65
Migration Regulations 1994, rr 1.09, 1.12, Schedule 2, cl 461.212

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 22 July 2022 to refuse to grant the visa applicant a New Zealand Citizen (Family Relationship) (Temporary) (Class UP) Subclass 461 visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicant applied for the visa on 8 January 2018. The delegate refused to grant the visa on 22 July 2022 on the basis that the applicant did not satisfy the requirements of cl.461.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). Clause 461.212 of Schedule 2 requires an applicant to satisfy one of three subclauses at the time of application. The full clause is reproduced below.

3. The applicant appeared before the Tribunal on 27 April 2023 to give evidence and present arguments. The applicant was represented in relation to the review.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The issue in the present case is whether the applicant satisfies one of the three alternative subclauses under cl 461.212.

6. Clause 461.212 provides as follows:

   (1)   The applicant meets the requirements of subclause (2), (3) or (4).

   (2)   An applicant meets the requirements of this subclause if the applicant is a member of the family unit of:

   (a)a person, other than an eligible New Zealand citizen, who is in Australia as the holder of a Subclass 444 (Special Category) visa; or

   (b)a person, other than an eligible New Zealand citizen, who:

   (i)is outside Australia; and

   (ii)will be accompanying the applicant to Australia; and

   (iii)will, on entry, be the holder of a special category visa.

   (3)   An applicant meets the requirements of this subclause if the applicant:

   (a)   either:

   (i)is in Australia as the holder of a Subclass 461 (New Zealand Citizen Family Relationship (Temporary)) visa; or

   (ii)is not the holder of a substantive visa and the last substantive visa held by the applicant was a Subclass 461 visa; and

   (b)   is no longer a member of the family unit of the person in relation to whom the applicant was granted a Subclass 461 visa; and

   (c)   has not become a member of the family unit of another person (whether or not the applicant is still a member of the family unit of that other person).

   (4)   An applicant meets the requirements of this subclause if the applicant:

   (a)   is outside Australia; and

   (b)   either:

   (i)the applicant was lawfully present in Australia as the holder of a Subclass 461 visa for a period of, or periods that total, not less than 2 years in the period of 5 years immediately before the application for the visa; or

   (ii)the Minister is satisfied that the applicant:

   (A)has substantial business, cultural, employment or personal ties with Australia which are of benefit to Australia; and

   (B)has not been absent from Australia for a continuous period of 5 years or more immediately before the application for the visa, unless there are compelling reasons for the absence; and

   (c)   on last departure from Australia was a holder of a Subclass 461 visa; and

   (d)   is no longer a member of the family unit of the person in relation to whom the applicant was granted a Subclass 461 visa; and

   (e)   has not become a member of the family unit of another person (whether or not the applicant is still a member of the family unit of that other person).

   Clause 461.212(2)

7. The applicant’s Form 147 visa application form of 3 January 2018 stated that she was no longer in a relationship with Mr Keiran Francis Codd, the person with whom she claims a family relationship for the purposes of the application. Based on this information, the Tribunal finds that the applicant is unable to satisfy cl.461.212(2).

   Clause 461.212(4)

8. The applicant stated in her visa application form that she was in Australia at the time of application Therefore, she is unable to satisfy cl.461.212(4).

   Clause 461.212(3)

9. At the time the applicant applied for the present visa, her last substantive visa was a Subclass 461 visa. She therefore satisfies cl.461.212(3)(a).

10. As stated above, the applicant indicated in her visa application form that she was no longer in a relationship with Mr Codd, the person with whom she claims a family relationship for the purposes of the present visa application. She therefore satisfies cl.461.212(3)(b)

11. In a separate review application concerning whether or not she satisfied the Schedule 3 criteria (matter number 1920592), the applicant gave evidence about being in a relationship with Vu Hua and having moved in with this person in August 2019. This information was also contained in the delegate’s decision record, a copy of which was provided to the Tribunal by the applicant. At hearing, the applicant said that she began a relationship with Mr Hua in 2017, but it was not a de facto relationship until later.

12. Based on the information in front of it, including the applicant’s testimony at hearing which is also discussed in more detail below, the Tribunal accepts that this relationship began after the date of application. Therefore, it accepts that she had not become a member of the family unit of another person at that time. The applicant satisfies cl.461.212(3)(c).

13. As the applicant satisfies all three cumulative requirements under cl.461.212(3), she satisfies cl.461.212(3) in its entirety. She therefore satisfies cl.461.212(1).

    Clause 461.221

14. Clause 461.221 provides as follows:

    The applicant continues to satisfy the criterion in subclause 461.212(1).

15. As alluded to above, since the time of application, the applicant has entered into a new relationship. A submissions letter from the applicant’s representative dated 24 April 2023 relevantly stated as follows:

    On 30 April 2021 the applicant has advised the Department that in her AAT hearing (previous) that she is currently in a relationship with Mr Vu Hua and that she had moved in with Vu Hua in August 2019. Mr Vu is an Australian citizen. My client has advised that she and Mr Vu are in a genuine, continuing de facto relationship and intend to marry. She has advised that both have recently in February 2023 exchanged their rings and intend to marry soon. However, they are living together for a long time and consider their relationship as de facto.

16. At hearing, the Tribunal asked the applicant if she agreed with her representative’s submissions, which included this information. She replied yes.

17. Having considered the circumstances of that relationship against the definition of “de facto partner” in s.5CB and matters including those in r.1.09A, the Tribunal finds that this relationship is a de facto relationship. In coming to this finding, it puts particular weight on evidence given on the applicant’s behalf in the submissions letter of 24 April 2023 that she and Mr Hua had entered into a relationship, had moved in together, intend on marrying and consider their relationship as being a de facto one. Based on this finding, it finds that the applicant has become a member of the family unit of another person: r.1.12(2)(a).

18. The applicant is therefore unable to continue to satisfy cl.461.212(1) based on satisfying cl.461.212(3) because she has become a member of the family unit of someone other than the person in relation to whom she was granted a Subclass 461 visa.

19. Furthermore, the person of whom she has become a member of the family unit is not a holder of a Subclass 444 visa, meaning that the applicant is unable to continue to satisfy cl.461.212(1) based on satisfying cl.461.212(2). Lastly, the applicant is currently in Australia and so she is unable to continue to satisfy cl.461.212(1) based on satisfying cl.461.212(4).

20. As the applicant is unable to continue to satisfy cl.461.212(1) at the time of this decision, she does not satisfy cl.461.221.

    MINISTERIAL INTERVENTION

21. The submissions letter from the applicant’s representative dated 24 April 2023 expressly requested the Tribunal to refer the matter to the Minister for Immigration for his intervention on the basis of unique and exceptional circumstances that are compelling and compassionate. These circumstances centre on the effect of the applicant leaving Australia on her de facto partner and his and her children, the benefit to Australia in having her remain here, and the considerable length of time that she has been in Australia along with the strong connections she has made during this time and her integration into the Australian community. Lastly, the submissions point to the applicant’s status as a victim of family violence which has caused her severe trauma.

22. Section 351 of the Act provides that the Minister can substitute for a decision of a review tribunal a decision that is more favourable to a person if he thinks it is in the public interest to do so. The Tribunal specifically notes that cases having one or more unique or exceptional circumstances may be referred to the Minister for possible consideration of the use of his intervention powers.

23. The Tribunal certainly has sympathy with the applicant in light of her circumstances, particularly as they relate to the incidents of family violence. In this regard, it notes that she was the protected party in a Final Apprehended Domestic Violence Order against her ex-spouse dated 30 August 2017.

24. However, before the Tribunal can assess whether there are unique or exceptional circumstances, it must determine if there are circumstances that make the matter inappropriate to consider, by reference to the Guidelines for Ministerial Intervention.[1] One such circumstance is where “the person may be able to apply for a Partner visa onshore, as prescribed under regulation 2.12(1) of the Migration Regulations 1994”. Without more information, the Tribunal finds that the applicant is not barred from applying for an onshore partner visa by s.48 of the Act as Subclass 820/801 visas are prescribed by r.2.12(1). Furthermore, there is no information to show that she would be unable to satisfy the criteria under s.1124B or s.1214C of Schedule 1 of the Regulations.

    [1] Department of Home Affairs, “Status Resolution Service: Ministerial Intervention”, >

    At hearing, the applicant told the Tribunal that she has been unable to travel to the US because of her visa status. In this regard, it notes that she is currently the holder of a Bridging C visa and is unable to obtain a Bridging B visa to travel overseas. She said that she was hoping to travel to see her family members including a grandmother who is 97 years old. The applicant’s representative said that, with the Department wait times as they were, the applicant would be waiting a while for an onshore partner visa to be processed.

25. Although the Tribunal is sympathetic to the applicant’s circumstances, including the fact that she has been unable to travel to the US to see family, it does not consider that these would displace the clear words of the Guidelines or the intention that underpins those words. Having said that, it would hope that any partner visa application made by the applicant is processed in a timely manner.

26. For the above reasons, the Tribunal does not intend to refer the applicant’s matter to the Minister for his intervention, although it reminds her that it is open to her to make her own request.

    DECISION

27. The Tribunal affirms the decision not to grant the applicant a New Zealand Citizen (Family Relationship) (Temporary) (Class UP).

    David Crawshay
    Member