Kingsle (Migration)

[2022] AATA 4908

Kingsle (Migration) [2022] AATA 4908 (13 December 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Kenneth Daniel Kingsle

REPRESENTATIVE:  Mr Rhys Strang

CASE NUMBER:  2001648

HOME AFFAIRS REFERENCE(S):          BCC2018/1238581

MEMBER:Katie Malyon

DATE:13 December 2022

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Skilled Independent (Permanent) (Class SI) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 189 (Skilled Independent) visa:

·cl 189.313 of Schedule 2 to the Regulations.

Statement made on 13 December 2022 at 1:19 pm

CATCHWORDS
MIGRATION – Skilled Independent (Permanent) visa– Subclass 189 – was not satisfied that Mr Irudayaraj had demonstrated that he has full custody of Mr Kingsle –applicant is now 20 years old – evidence of custodial arrangements is no longer required –– decision under review remitted   

LEGISLATION
Migration Act 1958, ss 56, 65, 349, 360
Migration Regulations 1994, r 1.03, Schedule 2, cl 189.312, 189.313

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 10 January 2020 to refuse to grant the visa applicant, New Zealand national Kenneth Daniel Kingsle, a Skilled Independent (Permanent) Subclass 189 visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. Mr Kingsle applied for the visa on 15 March 2018.  He was included as a dependent child in the Subclass 189 Skilled Independent (New Zealand) (Class SI) visa application lodged by his father, Mr Paul Kingsle Irudayaraj.  Mr Irudayaraj’s Subclass 189 visa was approved on 13 November 2020. 

   Background

3. For context, the Tribunal has set out in some detail the background of this matter.  As confirmed by his Birth Certificate and the bio data page of his New Zealand passport accompanying Mr Irudayaraj’s Subclass 189 visa application, Mr Kingsle was born in Henderson, New Zealand on 16 October 2002.  When his father’s visa application was lodged on 15 March 2018, Mr Kingsle was 15 years old.  At the time of the delegate’s decision, he was 17 years old.

4. The delegate refused to grant Mr Kingsle’s visa on the basis that, at the time of the delegate’s decision, cl 189.312 of Schedule 2 to the Regulations had not been met.  Clause 189.312 of Schedule 2 to the Regulations states that:

   189.312  (1)  The applicant satisfies public interest criteria 4001, 4002, 4003, 4003B, 4004, 4020 and 4021.

   (2)  If the applicant had turned 18 at the time of application, the applicant satisfies public interest criterion 4019.

   (3)  If the applicant has not turned 18, the applicant satisfies public interest criteria 4017 and 4018.

   (4)  If the primary applicant holds a Subclass 189 visa in the Points-tested stream, the applicant satisfies public interest criteria 4005 and 4010.

   (5)  If the primary applicant holds a Subclass 189 visa in the New Zealand stream, the applicant satisfies public interest criterion 4007.

5. Since Mr Kingsle had not turned 18 at the time of the delegate’s decision, consideration was given as to whether he meets public interest criteria (PIC) 4017 and 4018 as required by cl 189.312(3) of Schedule 2 to the Regulations.  Relevant to the circumstances of Mr Kingsle’s case, PIC 4017 provides that:

   4017  The Minister is satisfied of 1 of the following:

   (a)  the law of the applicant's home country permits the removal of the applicant;

   (b)  each person who can lawfully determine where the applicant is to live consents to the grant of the visa;

   (c)  the grant of the visa would be consistent with any Australian child order in force in relation to the applicant.

6. As noted in the delegate’s decision, Mr Irudayaraj’s Form 1229 Consent to grant an Australian visa to a child under the age of 18 years contains details of Mr Kingsle’s biological mother (Ms Arockia Rani Joseph), who was not included in the Subclass 189 visa application.  Consequently, the delegate requested the biological mother’s consent to the grant of the visa to Mr Kingsle.  The delegate notes that the Department attempted to verify Ms Joseph’s consent to her son Mr Kingsle being included in his father’s Subclass 189 visa application by attempting to contact her on multiple occasions on the mobile phone number provided: however, Ms Joseph’s phone was switched off at each attempt.  The delegate’s decision notes that the Department also made a number of unsuccessful attempts to contact her on the land line provided in the Form 1229.

7. On 13 May 2019, Mr Irudayaraj provided the Department with a Statutory Declaration sworn 12 May 2019 in which he states that:

   “my wife is now residing in New Zealand.  I have previously been able to contact her by email.  I annex hereto a copy of emails forwarded to my former wife requesting that she provide a point to contact. To date I have had no response. I do not have a telephone number for my former wife. I have asked my son Kenneth to contact his mother. To date she has not responded to his messages either”.

8. In response to Mr Irudayaraj’s Statutory Declaration, the Department sent a further request under s 56 of the Act to the representative on 14 August 2019 requesting the biological mother’s New Zealand contact details or an Australian Family Court Order stating that Mr Irudayaraj has full custody of the child. As at the date of the delegate’s decision, no response had been received regarding the requested contact details of Mr Kingsle’s biological mother. Whilst the delegate acknowledged that Mr Kingsle resides in Australia with his father, the Regulations require verifiable consent from the biological parent who is not included in the visa application in order to satisfy the custody criterion cl 189.312(3) of Schedule 2 to the Regulations.

9. Based on the available evidence, the delegate was not satisfied that Mr Irudayaraj had demonstrated that he has full custody of Mr Kingsle.  Therefore, the delegate concluded that the custody requirement in PIC 4017 was not met and, as a consequence, Mr Kingsle does not meet cl 189.312(3) of Schedule 2 to the Regulations.

10. The Tribunal did not hold a hearing in this matter as, consistent with s 360(2)(a) of the Act, it considers that it should decide the review in Mr Kingsle’s favour on the basis of material before it.

11. For the following reasons, the Tribunal has decided that the matter should be remitted for reconsideration.

    CONSIDERATION OF EVIDENCE

12. The issues in the present case are, given the passage of time and the fact that Mr Kingsle is now 20 years old, whether the delegate’s basis for refusing him a Subclass 189 visa remains relevant at the time of this decision and, if not, what power the Tribunal has on review. 

    Is the delegate’s basis for visa refusal still relevant at the time of this decision?

13. As noted above, the basis of the delegate’s refusing Mr Kingsle a Subclass 189 visa was that no evidence was provided of custody arrangements to demonstrate that PIC 4017 was met with the result that Mr Kingsle did not meet cl 189.312(3).  At the time of the delegate’s decision, Mr Kingsle was 17 years old.  However, he is now 20 years old.  In the opinion of the Tribunal, the requirement in cl 189.312(3) of Schedule 2 to the Regulations is a time of decision requirement: unlike cl 189.312(2), which expressly refers to an applicant who ‘had turned 18 at the time of application’, there is no such temporal context qualification in cl 189.312(3) of Schedule 2 to the Regulations.    

14. Based on this analysis, it is evident to the Tribunal that cl 189.312(3) of Schedule 2 to the Regulations is no longer relevant to Mr Kingsle and so evidence of custodial arrangements in relation to him is no longer required. 

    Tribunal’s powers on review

15. Relevant to the circumstances of this case, the Tribunal acknowledges that its powers set out in s 349(2) of the Act enable it to: affirm the delegate’s decision; vary the decision; remit the matter for reconsideration in accordance with directions or recommendations of the Tribunal: or, set aside the decision and substitute a new decision. As confirmed by the High Court in MIAC v SZKTI [2009] HCA 30, s 349(1) of the Act confers on the Tribunal ‘all the powers and discretions‘ that are conferred on the primary decision maker, both substantive and procedural: that is, the Tribunal stands in the shoes of the primary decision maker. Mindful of the Tribunal’s statutory objective in s 2A of the Administrative Appeals Tribunal Act 1975 to make decisions which are, amongst other things, ‘fair, just … and quick’, the Tribunal has therefore considered the appropriate course to adopt to facilitate an expeditious decision following constitution of the matter to the Member.  Since cl 189.312(3) of Schedule 2 to the Regulations is no longer relevant in this case for the reasons outlined above, the Tribunal has considered if it can remit the matter with a permissible direction that Mr Kingsley meets a specified criterion in Subdivision 189.31. 

16. In this regard, the Tribunal has considered the requirements in cl 189.313 of Schedule 2 to the Regulations which applied at the time of lodgement of the visa application:   

    189.313  (1)  If the primary applicant holds a Subclass 189 visa in the Points-tested stream, the applicant satisfies public interest criteria 5001, 5002 and 5010.

    (2)  If the primary applicant holds a Subclass 189 visa in the New Zealand stream, the applicant satisfies special return criteria 5001 and 5002.

17. As noted above and having reviewed the Department’s file, Mr Kingsle’s father Mr Irudayaraj applied for a Subclass 189 visa in the New Zealand stream.  Mr Irudayaraj’s Subclass 189 visa application was approved on 13 November 2020.  Accordingly, the Tribunal has considered the requirements in cl 189.313(2) of Schedule 2 to the Regulations since Mr Irudayaraj did not apply in the Points-tested stream referred to in cl 189.313(1).

18. Schedule 5 of the Regulations sets out a range of special return criteria (SRC) for the purposes of reg 1.03 of the Regulations.  Relevant to the circumstances of this case, SRC 5001 and 5002 provide as follows:

    5001  The applicant is not:

    (a)  a person who left Australia while the subject of a deportation order under:

    (i) section 200 of the Act; or

    (ii) section 55, 56 or 57 of the Act as in force on and after 19 December 1989 but before 1 September 1994; or

    (iii) section 12, 13 or 14 of the Act as in force before 19 December 1989;or

    (b) a person whose visa has been cancelled under section 501 of the Act, as in force before 1 June 1999, wholly or partly because the Minister, having regard to the person's past criminal conduct, was satisfied that the person is not of good character; or

    (c) a person whose visa has been cancelled under section 501, 501A or 501B of the Act, if:

    (i) the cancellation has not been revoked under subsection 501C(4) or 501CA(4) of the Act; or

    (ii)  after cancelling the visa, the Minister has not, acting personally, granted a permanent visa to the person; or

    (d) a person whose visa has been cancelled under section 501BA of the Act if the Minister has not, acting personally, granted a permanent visa to the person after that cancellation.

    5002 If the applicant is a person who has been removed from Australia under section 198, 199 or 205 of the Act:

    (a)  the application is made more than 12 months after the removal; or

    (b)  the Minister is satisfied that, in the particular case:

    (i)  compelling circumstances that affect the interests of Australia; or

    (ii)  compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen;

    justify the granting of the visa within 12 months after the removal.

19. Having reviewed the Department’s records, the Tribunal is satisfied that Mr Kingsle is not a person who has ever: left Australia while the subject of any deportation order issued under the Act; had any visas cancelled; or, been removed from Australia under ss 198, 199 or 205 of the Act. The Department’s movement records confirmed that Mr Kingsle has essentially lived in Australia continuously since February 2013 as the holder of a Subclass 444 visa. Based on documentation provided to the Tribunal, it is evident that Mr Kingsle has studied hard at high school in Australia such that he scored an ATAR of 96.35 in 2020. He was awarded the Australian Government’s ANSTO Science, Ingenuity, Sustainability - Science Prize on 10 December 2019.  Currently, Mr Kingsle is enrolled at the University of Wollongong where he is studying a Bachelor of Pre-Medicine, Science and Health majoring in Medical Science.  He scored High Distinctions in all of subjects in 2020 and 2021, with his lowest mark being 90% and the highest being 99%. 

20. Based on available evidence, the Tribunal is satisfied that Mr Irudayaraj was granted a Subclass 189 visa in the New Zealand stream and that Mr Kingsle satisfies both SRC 5001 and 5002 of Schedule 5 to the Regulations.  For this reason, the requirement in cl 189.313(2) of Schedule 2 to the Regulations is met.  As such, the Tribunal finds cl 189.313 of Schedule 2 to the Regulations of now met by Mr Kingsle.

21. Given this finding, the appropriate course is to remit the matter to the Minister to enable prompt consideration of the remaining criteria for the visa.

    decision

22. The Tribunal remits the application for a Skilled Independent (Permanent) (Class SI) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 189 (Skilled Independent) visa:

    ·cl 189.313 of Schedule 2 to the Regulations.

    Katie Malyon

    
    Member