Gimini (Migration)

[2018] AATA 323

Gimini (Migration) [2018] AATA 323 (20 February 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Kagui Debbie Gimini

CASE NUMBER:  1731841

DIBP REFERENCE(S):  BCC2017/4090123 PNJ

MEMBER:Mr S Norman

DATE:20 February 2018

PLACE OF DECISION:  Sydney

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

Statement made on 20 February 2018 at 10:30am

CATCHWORDS

Migration – New Zealand Citizen (Family Relationship) (Temporary) (Class UP) – Subclass 461 – Applicant was inside Australia at the time of lodgment – Unable to meet the essential criterion

LEGISLATION
Migration Act 1958, s 65, 359A, 359

Migration Regulations 1994, 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 Immigration on 6 December 2017 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 (the Act).

2. The delegate’s decision was lodged with the Tribunal.

3. The visa applicant applied for the visa on 27 October 2017. The delegate refused to grant the visa on the basis that the applicant did not satisfy cl.461.212(2) (not the family member of a New Zealand citizen); did not satisfy cl.461.212(3) (not the holder of a New Zealand Citizen Family Relationship visa and had not previously held a New Zealand Citizen visa); that she did not satisfy cl.461.212(4) (as she was inside Australia at the time of lodgement); and the applicant consequently did not satisfy cl.461.212(1).

4. The applicant was represented in relation to the review by her registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in the present case includes whether the applicant satisfies clause 461.212 of Schedule 2 of the Migration Regulations.

   The Tribunal’s jurisdiction:

7. The Tribunal issued a s.359A / s.359(2) letter dated 13 February 2018. For the purposes of s.359(2), the Tribunal noted that it had not determined whether it had jurisdiction in this matter. That was because by emailed letter to the applicant’s migration agent dated 19 January 2017, the Tribunal advised that it was a requirement for the applicant (a citizen of Papua New Guinea) to be in the migration zone at the time of the visa application and the time of the review application. It was then advised that “Departmental information provided to the Tribunal indicated that [the applicant was] in the migration zone at these times only as information that [the applicant] provided to [her] migration agent”. The applicant was then requested to provide a statutory declaration made by a person who could confirm that the applicant was in the migration zone at the time of the visa application on 27 October 2017, and at the time of the review application on 16 December 2017.

8. By statutory declaration dated 29 January 2018,[1] the applicant’s step mother swore the applicant was physically present in the migration zone at the time of the visa application and at the time of the review application. By email of 4 January 2018,[2] the applicant’s migration agent had also advised that their instructions were that the applicant was residing in the Northern Territory at the time of the visa application and merits review application. It was also noted the applicant (a citizen of Papua New Guinea) had arrived in the protected zone (Torres Strait Islands) under the Torres Strait Treaty and shortly thereafter lodged a Protection visa and then a Temporary Protection visa (both finalised[3]). The applicant had then moved within Australia (to Cairns and Darwin). The agent then noted that movements under the Torres Strait Treaty are recorded for statistical purposes and they are not entered into (the Department database) TRIPS. The agent continued that as TRIPS would not now be amended, the applicant is still showing in Department databases as being offshore. The information before the Tribunal included that:

   A special provision of the [Torres Strait] Treaty allows free movement (without passports or visas) between Australia and Papua New Guinea for traditional activities. This is only for Torres Strait Islanders and for coastal people from Papua New Guinea who live in and keep the traditions of the region.[4]

   [1] Tribunal file – folio 31.

   [2] Tribunal – folio 24.

   [3] Tribunal – folio 5 (reverse side). The applicant’s subsequent TPV was withdrawn at her request on 13 June 2017.

   [4] DFAT – The Torres Strait Treaty - accessed 8 February 2018.

9. The applicant did allegedly travel to Cairns (though advice was received that no corroborating evidence for this was available),[5] and the Tribunal understands this is further south than the applicant was entitled to travel within Australia by the terms of the Torres Strait Treaty. Be that as it may, and notwithstanding the lack of Department records for the applicant’s travel under the Torres Strait Treaty, based on the statutory declaration from the applicant’s step mother (though a similar statutory declaration which had been requested from the applicant was not lodged), the Tribunal proposes to accept the applicant was physically present in the migration zone at the time of the visa application (being 27 October 2017); and at the time of the review application (being 16 December 2017).

   [5] Tribunal – folio 24 (reverse side).

10. On the information before it, the Tribunal therefore has jurisdiction.

    Whether the applicant satisfies the criteria for the grant of the visa:

11. The delegate’s decision (lodged with the Tribunal), noted that the applicant lodged an application for a NZ Citizen Family Relationship (Class UP) (subclass 461) visa, though no claims were made the applicant had a NZ citizen family member. Subsequently recorded advice from the migration agent included that this visa application was “vexatious”[6] (this visa application is the subject of the present merits review application). The Tribunal understands the agent went on to advise that they intended to request the Minister to exercise their non-compellable humanitarian discretion.

    [6] Tribunal – folio 5 (reverse side).

12. By s.359A letter dated 13 February 2018, the Tribunal advised that subject to whether it was satisfied it had jurisdiction to consider the merits review application, and subject to their comments, the following information would be the reason or part of the reason for affirming the decision under review:

    The information before the Tribunal includes that applicant lodged an application for a New Zealand Citizen (Family Relationship) (Temporary) (Class UP) Subclass 461 visa, though no claims were made the applicant had a NZ citizen family member. Subsequently recorded advice from the migration agent included that this merits review application was for the purpose of requesting the Minister to exercise their non-compellable humanitarian discretion.

13. The Tribunal then put to the applicant (agent) that if the above was correct, please comment on whether inter alia the applicant:

    ·Agreed that the Tribunal conduct this hearing on the papers; and that they

    ·Acknowledged that based on the information cited in the Department delegate’s decision, the applicant may not meet the criteria for the grant of the NZ Citizen Family Relationship (Class UP) (subclass 461) visa.

14. By email of 13 February 2018, the applicant’s migration agent requested the Tribunal make its decision on the papers. Accordingly, the Tribunal has decided not to offer the applicant a hearing and has proceeded to decide this case on the papers.

15. That being said, the Tribunal has firstly considered whether the applicant meets cl.461.212(2) which requires that the applicant is the member of the family unit of a New Zealand citizen in Australia on a Subclass 444 visa. No evidence has been provided to indicate the applicant is a member of the family unit of a person who is a New Zealand citizen. Accordingly, the Tribunal finds the applicant does not meet cl. cl.461.212(2) of Schedule 2.

16. The Tribunal also considered cl. cl.461.212(3) which requires that the applicant is either the holder of a New Zealand Citizen (Family Relationship) (Subclass 461) visa or whose last substantive visa was a New Zealand Citizen (Family Relationship) (Subclass 461) visa and is no longer the member of the family unit of the person to whom the last visa was granted. The Tribunal finds that the applicant has never held a New Zealand Citizen (Family Relationship) (Subclass 461) visa and that she does not, therefore, meet cl. cl.461.212(3).

17. Finally, the Tribunal has considered whether the applicant meets cl.461.212(4), which requires the applicant to be outside of Australia at the time of lodgment. On the information before it, the Tribunal is satisfied the applicant was inside Australia at the time of lodgment and the Tribunal finds the applicant does not meet cl.461.212(4).

18. Having found that the applicant does not meet cl.461.212(2), (3) or (4), the Tribunal finds that the applicant does not meet cl.461.212 and she does not, therefore, meet an essential criterion for the grant of the Subclass 461 visa.

    DECISION

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

    Mr S Norman
    Member