Johnston (Migration)

[2024] AATA 2342

Johnston (Migration) [2024] AATA 2342 (24 June 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Andrew David Johnston

CASE NUMBER:  2312519

HOME AFFAIRS REFERENCE(S):          BCC2023/324025

MEMBER:Kate Millar

DATE:24 June 2024

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal affirms the decision  not to grant the applicant a Special Category (Class TY) (Subclass 444) visa. 

Statement made on 24 June 2024 at 11:51am

CATCHWORDS

MIGRATION – Special Category (Temporary) (Class TY) visa – Subclass 444 (Special Category) – behaviour concern non-citizen – applicant deported from the United Kingdom –previous visa not allowing re-entry – shared care of Australian children – financial hardship – multiple re-entries on the same visa in error – circumstances not anticipated by the legislation – referral for Ministerial Intervention – decision under review affirmed          

LEGISLATION

Migration Act 1958, ss 5, 32, 65, 82, 351
Migration Regulations 1994, Part 444

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 7 August 2023 to refuse to grant Mr Johnston a Special Category (Temporary) (Class TY) Subclass 444 visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. Mr Johnston applied for the visa on 17 January 2023. The delegate refused his application because the delegate found he had been deported from the United Kingdom in 2011, and this results in him being ineligible for the visa. 

   CONSIDERATION OF CLAIMS AND EVIDENCE

3. The requirements for a special category visa are contained in in s 32 of the Act and include at s 32(2)(a)(ii) that the person is neither a behaviour concern non-citizen nor a health concern non-citizen. 

4. The term ‘behaviour concern non-citizen’ is defined in s 5 of the Act and means, among other things, a person who has been removed or deported from Australia or removed or deported from another country.

5. In his application, Mr Johnston declares he was removed, deported or excluded from the United Kingdom in 2011.

6. He was asked to provide further information and on 21 February 2023 he provided a copy of his previous New Zealand passport which included a crossed-out travel stamp for arrival at Heathrow. 

7. In a statement provided to the Department, Mr Johnston says he had a friend Billy who asked him to visit the United Kingdom in 2011.  When Mr Johnston arrived in the United Kingdom, he said he was stopped at customs and taken into a meeting room for interrogation.  He said they rang Billy to find out what was going on and because Mr Johnston said they were friends and Billy said they were long lost cousins he was arrested and taken to immigration detention.  After two nights he was told he was leaving and taken to the airport where he was handcuffed .  When he got the airport, he was handcuffed and put on a plane.  I find Mr Johnston was been deported or removed from the United Kingdom in 2011.

8. On arriving in Australia, Mr Johnston says he was asked why he had a cross on his passport which he tried to explain.  He says immigration tried to call the United Kingdom but were unsuccessful.  He says he was told to go to his brother on the Gold Coast and if there were any problems he would be contacted. 

9. Mr Johnston says he has not been contacted and has flown to New Zealand and Africa many times and has not previously been stopped on re-entering Australia until his last entry at the Gold Coast.

10. Departmental records of Mr Johnston’s entry and exit from Australia show he has re-entered Australia on many occasions after 2011 on a Subclass 444 visa. 

11. Under s 82(8) of the Act, a visa to remain in, but not re-enter Australia granted to a non-citizen in Australia ceases to be in effect if the holder leaves Australia. Under Part 444 of Schedule of the Migration Regulations 1994, a Subclass 444 visa is a temporary visa permitting the holder to remain in Australia while the person is a New Zealand citizen. It is not a visa that allows re-entry to Australia. On Mr Johnston leaving Australia, each previous Subclass 444 visa ceased, and he must apply again for the visa each time he re-enters Australia.

12. Mr Johnston was removed from the United Kingdom in 2011 and is a behaviour concern non-citizen as defined in s 5 of the Act.  As a result he does not meet s 32(2)(a)(ii) of the Act and does not meet the requirements for the grant of the visa.  There is no discretion in the legislation to address his circumstances further. 

13. As he does not meet the requirements for the grant of the visa, the decision must be affirmed. 

    REFERRAL TO THE MINISTER UNDER SECTION 351 OF THE ACT

14. Under s 351 of the Act, the Minister may substitute a decision of the Tribunal for another decision that is more favourable for the applicant.

15. Mr Johnston has departed Australia and returned on many occasions since he was removed from the United Kingdom in 2011.  He says that he has never been stopped from re-entering until his visa was refused, and that he was told this was an error occurring at Brisbane airport.  He states he was not aware there was a problem and does not understand why this is happening.  I do not have any information before me to show what was declared by Mr Johnston on each of these entries and whether he had previously declared he had been removed from the United Kingdom.

16. Mr Johnston’s ex-partner Ms Belinda Radford provided a statement and gave evidence to the Tribunal.  Ms Radford was in a domestic relationship with Mr Johnston from January 2013 until approximately 2021. 

17. Ms Radford’s older son is now 20 years old.  Ms Radford said her son has seen Mr Johnston as a father figure from when he was 9 years old and calls Mr Johnston “dad’.  Her son has ADHD and Ms Radford said Mr Johnston has assisted with her son in difficult times.  She said Mr Johnston and her eldest son are in frequent contact.

18. Ms Radford’s second son was 2 years old when she and Mr Johnston started seeing each other, and he is now 13 years old.  Her second son was diagnosed with ADHD at 4 years of age and Ms Radford says he was a challenging toddler.  Ms Radford said her second son sees Mr Johnston as his father, and Mr Johnston supported them through the ADHD diagnosis.  She and Mr Johnston share the care of her second son week on and week off after they separated.

19. Ms Radford and Mr Johnston have a daughter who is 8 years old.  They also share the care of their daughter week on and week off.  Ms Radford says their daughter is very close to Mr Johnston, and that if he is not in Australia this will be devastating for her.

20. Ms Radford said that she has arranged her shift work around the time the children are in Mr Johnston’s care and works 4 am – 2pm on the weeks they are in the care of Mr Johnston and 7am – 2pm on the weeks they are in her care.  She said if Mr Johnston is not available to provide care every second week, she will have to reduce her hours and take a significant pay cut.

21. Ms Radford said she and Mr Johnston share the costs of the two younger children equally including uniforms, school fees, medication and psychiatry appointments for her second son.  If he is unable to assist with these costs this will have a significant impact on her and the children.

22. Mr Paul Fisher also gave evidence to the Tribunal.  Mr Fisher contracts Mr Johnston full time to construct sheds.  Mr Fisher has employed Mr Johnston for 5 – 6 years on and off, and for the the last two years Mr Johnston has been contracted permanently.  Mr Fisher said he has invested time in developing Mr Johnston and his skills, and that he is now excellent at his work.  If Mr Johnston were not available Mr Fisher says this will have a significant effect on his business.  Due to labour shortages in construction Mr Fisher said that Mr Johnston would be difficult to replace as it is quite rare to find a reliable and punctual contractor.

23. Ms Radford said, and a separate written statement from Mr Joshua Patuka supports, that Mr Johnston coaches rugby league at the local junior rugby league club.

24. Mr Johnston says that the refusal of a Subclass 444 visa has arisen many years after he was removed from the United Kingdom and that the Department were aware of his situation when he was returned from the United Kingdom.  He has travelled on many occasions since, and his movement records show that he has left Australia and returned on a Subclass 444 visa. He says he was told that the subsequent grant of a Subclass 444 visa when he returned to Australia was in error.  If this is the case, these are circumstances not anticipated by the legislation. 

25. In the 13 years since being removed from the United Kingdom and returning to Australia, Mr Johnston has formed a relationship with Ms Radford and has taken on a parenting role for two of her children as well as for his daughter.  He has week about care of two children, meets half of their expenses, and his care allows Ms Radford to work.  If he is not available to care for the children this will have a significant effect on the children and Ms Radford, and this will result in hardship to the children and Ms Radford, as well as Ms Radford’s adult child.  

26. Having regard to  Mr Johnston’s circumstances and the ministerial guidelines relating to the Minister’s discretionary power under s 351, set out in the Department’s Procedures Advice Manual (PAM3) I consider this case should be referred to the Department to be brought to the Minister’s attention.

    DECISION

27. The Tribunal affirms the decision not to grant the applicant a Special Category (Class TY) (Subclass 444) visa. 

    Kate Millar
    Senior Member