England (Migration)

[2023] AATA 272

England (Migration) [2023] AATA 272 (9 February 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Daniel Marc England

CASE NUMBER:  1826937

HOME AFFAIRS REFERENCE(S):          BCC2016/1883654

MEMBER:Meena Sripathy

DATE:9 February 2023

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the visa applicant a New Zealand Citizen (Family Relationship) (Temporary) (Class UP) Subclass 461 visa.

Statement made on 09 February 2023 at 2:20pm

CATCHWORDS
MIGRATION – New Zealand Citizen (Family Relationship) (Temporary) (Class UP) visa – Subclass 461 (New Zealand Citizen Family Relationship (Temporary)) – relationship ceased – consent to decision without hearing and request for referral for ministerial consideration –care for two Australian citizen children with previous partner – no documentary evidence provided – business ownership and integration into community – referral request declined – applicant can still make request directly – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5CB, 65, 351
Migration Regulations 1994 (Cth), r 1.09A, Schedule 2, cls 461.212(1), (3), (4), 416.221

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 29 August 2018 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 27 May 2016. The delegate refused to grant the visa on the basis of not being satisfied that the applicant was in a de facto relationship with Ms Ashleigh Willow-Lee Delaine Hetaraka -Tawhai, a New Zealand citizen at the time of application and therefore was not satisfied that he was a member of the family unit of a New Zealand citizen and holder of a Special Category (Class TY) (Subclass 444) visa and did not meet cl.461.212 of the Migration Regulations.

3. The applicant applied for review of this decision to the Tribunal on 14 September 2018. 

4. On 6 December 2022 the Tribunal wrote to the applicant and invited him to provide updated and current evidence of his relationship with the New Zealand citizen he claimed to be in a relationship with at time of application, noting that no evidence of the relationship is before the Tribunal since the review application was made more that 4 years ago.

5. The applicant requested and was provided an extension of time to provide a response to 3 February 2023. 

6. On 3 February 2023 the Tribunal received a response including a submission and supporting documents. The submission noted the applicant concedes he no longer meets the requirements of cl.461.212 owing to the irretrievable breakdown of his relationship with the eligible New Zealand citizen. The applicant requested a decision be made on the papers and requested the Tribunal consider referring the matter to the Minister for consideration under the intervention powers on the basis of the unique and compelling circumstances of his case.

7. On the basis of the applicant’s request for the Tribunal to make a decision on the review without taking any further action to allow or enable him to appear before it this matter has been determined on the evidence available to the Tribunal.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The application was refused on the basis that the delegate was not satisfied the applicant  met cl. 461.212 at time of application, which is set out below:

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

   (a)    a person who is in Australia as the holder of a Subclass 444 (Special Category) visa; or

   (b)    a person 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.

   461.212 (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).

   461.212] (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).

10. At time of decision cl 461.221 provides that the applicant must continue to satisfy the criterion in subclause 461.212(1).

11. The delegate, in their decision made on 29 August 2018, considered the evidence submitted by the applicant of his de facto relationship with Ashleigh Willow-Lee Delaine Hetaraka-Tawhai but was not satisfied, on the evidence provided, that the parties were in a de facto relationship within the meaning of that term in s5CB and having regard to the matters referred to in r.1.09A. 

12. No further evidence was submitted by the applicant until requested by the Tribunal to provide information on 6 December 2022. 

13. In his response provided on 3 February, it was submitted the applicant no longer seeks to meet the requirements of cl. 461.212 for the grant of the visa owing to the irretrievable breakdown of his relationship with the eligible New Zealand citizen and the Tribunal was requested to make a decision on the papers. A request was made to consider referring the matter to the Minister for consideration of his intervention powers.

14. On the basis of the applicant’s concession that he no longer seeks to meet the requirement of cl.461.212 as his relationship with Ms Hetaraka-Tawhai has ended, the Tribunal finds that he does not meet cl.461.221 in respect of this relationship. The Tribunal observes that cl.461.212 is a time of application criteria and the delegate refused the application on the basis of not being satisfied that the applicant was in a de facto relationship with Ms Hetaraka-Tawhai as at the time of application. The applicant’s concession that this relationship has ended, would appear to make the issue of whether it existed at time of application moot as it does not continue to exist at time of decision.

15. The Tribunal also observes that although no submissions or arguments were put forward by the applicant that he meets any of the alternative sub paragraphs in cl. 461.212, the information in the submissions stating that he entered into a relationship with an Australian citizen, with whom he subsequently had two children in 2013 and 2014 following his relationship with Miss Tamara Olegovna Rosova (the New Zealand citizen with whom he applied for his first Subclass 461 visa, granted on 30 May 2011) indicates that he does not meet cl.461.212(3).

16. As he was not outside Australia at time of application, he does not meet cl.461.212(4).

17. On the basis of the findings above, the Tribunal also finds that the applicant does not meet cl.461.221.

    Request to refer the matter for Ministerial intervention

18. 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.  It is submitted that there are unique, exceptional, and compelling circumstances in the applicant’s case, such that the application of the current relevant legislation leads to unreasonable results that are not in the best interests of two Australian Citizen children. 

19. The submissions state the applicant is the father of two Australian citizen children, aged 8 and 9 years, and is actively involved in their day to day care. It is submitted that the relationship between him and the mother of the children (Ms Leah Bullivant) ended in July 2014 prior to his relationship with Ms Hetaraka-Tawhai (the New Zealand citizen with whom he applied for the present application) and the applicant and Ms Bullivant did not pursue a Subclass 820/801 visa pathway during that relationship. The submissions state the applicant has a good relationship with his ex-partner Miss Bullivant (the mother of his children), and they live a street away from each other so that they can both actively care for their children and be a part of their everyday life, and that they have a very amicable and respectful care arrangement for their children, without the need for formal parenting orders. It is submitted that the applicant not being able to remain in Australia would result in serious, ongoing and irreversible harm and continuing hardship to his Australian Citizen children and pursuant to Australia’s obligations under the Convention on the Rights of the Child it would not be in the best interests of the children for the applicant not to be granted a visa, and therefore be required to depart Australia. 

20. The submissions state that the applicant at all times remained lawful in Australia and has contributed to the Australian community. He owns and runs a café in Freshwater which employs 17 staff and has a substantial revenue and annual projected turnover.  The submissions argue the applicant is fully integrated into the Australian community and contributing in a productive manner and that his ability to remain in Australia will also provide an economic benefit to Australia.

21. Documentary evidence, including ASIC extracts, a commercial lease and a financial statement relating to the applicant’s business was attached to the submission, however, the Tribunal observes that no supporting documentary evidence relating to the claims about the children was provided.  In particular, the Tribunal notes the absence of evidence of birth certificates to evidence the applicant as father, or any statement from the mother of the children to support the claimed amicable relationship between them and role of the applicant in the children’s life, or any other evidence to support the claims made in respect of the best interests of the children.

22. 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) but, in the absence of supporting documentary evidence (as indicated above)  it has decided not to refer the matter.

23. The Tribunal notes that the applicant can still make a request directly to the Minister.  If doing so, the applicant should forward any evidence he wishes to submit directly to the Department to be considered for referral to the Minister. 

    decision

24. The Tribunal affirms the decision not to grant the applicant a New Zealand Citizen (Family Relationship) (Temporary) (Class UP) Subclass 461 visa..

    Meena Sripathy
    Member