Leith (Migration)

[2024] AATA 735

Leith (Migration) [2024] AATA 735 (25 March 2024)

DECISION RECORD

DIVISION:  Migration & Refugee Division

APPLICANT:  Mr Mishka Robert Leith

CASE NUMBER:  2200660

HOME AFFAIRS REFERENCE(S):           BCC2019/781389

MEMBER:  Christine Kannis

DATE:  25 March 2024

PLACE OF DECISION:  Perth

DECISION:The Tribunal remits the application for a New Zealand Citizen (Family Relationship) (Temporary) (Class UP) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 461 visa:

·Criterion 3004 for the purposes of cl

461.213 of Schedule 2 to the Regulations

Statement made on 25 March 2024 at 7:19am

CATCHWORDS

MIGRATION – New Zealand Citizen (Family Relationship) (Temporary) (Class UP) visa – Subclass 461 New Zealand Citizen Family Relationship (Temporary) – no substantial visa at the time of application – factors beyond the applicant’s control – applicant awaiting passport renewal – application posted by Express Post delayed – compelling reasons – partner’s shared custody of children with ex-partner – impact on family – impact of bushfires – decision under review affirmed  

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 461.213; Schedule 3, Criterion 3004; r 2.05

CASES

Anani v MIMAC [2013] FCCA 1140
Liu v MIAC [2010] FMCA 60
Montero v MIBP [2014] FCCA 946
Paduano v MIMIA (2005) 143 FCR 204
Plaintiff M64/2015 v MIBP [2015] HCA 50
Secretary, Department of Social Security v Secara & Ors (1998) 89 FCR 151
Su v MIAC [2007] FMCA 318 
Waensila v MIBP [2016] FCAFC 32

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 4 January 2022 to refuse to grant the 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 applicant applied for the visa on 7 January 2020. The criteria for the Subclass 461 visa are set out in Part 461 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). The primary criteria to be met include cl 461.213, which is a time of application criterion. Clause 461.213 requires that, inter alia, if an applicant lodges the application in Australia and the applicant did not hold a substantive visa at that time, an applicant must satisfy each of criteria contained within Schedule 3, including criteria 3002, 3003, 3004 and 3005.

3. The delegate refused to grant the visa on the basis that the applicant did not meet cl

   461.213 because the delegate was not satisfied that the applicant met the requirements of criterion 3004 (c) and (d) of cl 461.213 to the Regulations. The delegate did not consider criteria 3002, 3003 and 3005.

4. The applicant appeared before the Tribunal by MS Teams video on 19 March 2024 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s partner, Ms Sandra Bucknell.

5. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The issue in the present case is whether, at the time of application on 7 January 2020, the applicant met criterion 3004 for the purpose of cl 461.213.

2. Clause 461.213 says:

   If the application is made in Australia:

(a)at the time of application, the applicant held a substantive temporary visa other than a Subclass 403 (Temporary Work (International Relations)) visa in the Domestic Worker (Diplomatic or Consular) stream; or

(b)if the applicant did not hold a substantive visa at that time:

(i)the last substantive temporary visa held by the applicant was not a visa mentioned in paragraph (a); and

(ii)the applicant satisfies Schedule 3 criteria 3002, 3003, 3004 and 3005.

1. Schedule 3 to the Regulations contains additional criteria applicable to unlawful non-citizens and certain bridging visa holders.

   Evidence provided prior to the hearing

1. The applicant provided a written submission and 2 photographs. The written submission included the following:

   When I asked what other issues had arisen, the answer was that same as two years ago - my original application was 33 days late.

   I have provided as much truthful information possible about why the application was late.

   In fact the application was written, dated, signed, paid for and mailed on time.

   …

   If its possible, I request that the member make an informed decision and grants my application without further delay.

   I have been waiting four years.

   33 days seems quite trivial in comparison.

   …..

   Please see attached.

   First photo is of Sandy, myself, Sandy's children - Ruby and Scarlett and their father, Brian. At Christmas 2019.

   The second photo is of Sandy, myself, Ruby and Scarlett. Taken by Brian. Christmas 2023.

   Sandy and I are still living together.

2. The applicant provided Statement 3 of his CBA bank account for the period 3 December to 25 December (year not specified). When providing the statement the applicant advised that it was a record of his bank statement showing payment made and application sent to the Department on the day before his previous visa expired. The Tribunal accepts that the statement is for a period in December 2019. The statement shows:

04 Dec	DEPARTMENT OF HOME AFF SOUTHPORT AUS Card xx0828 Value Date: 03/12/2019	$369.82
06 Dec	POST MULLUMBIMBY POSMU MULLUMBIMBY WA AU Card xx0828 Value Date: 03/12/2019	$23.95

1. The applicant said he needed to provide a passport valid for at least 2 years for the application however his passport was due to expire and he was forced to wait for his new passport to arrive from the United Kingdom. Copies of his passports valid from 17 November 2009 to 17 November 2019 and valid from 19 November 2019 to 19 November 2029 were provided.

2. Regarding the delay of 33 days from the cessation of his previous substantive visa and the lodgement of his Subclass 461 visa on 7 January 2020, the applicant said he cannot account for what happened after he posted the application. He said he paid the Department and posted the application on 4 December 2019.

1. Ms Sandra Bucknell, provided a written statement in which she provided information consistent with the information provided by the applicant in relation to awaiting his new passport and their understanding of applying for a subclass 461 visa. She said the applicant’s payment was processed digitally prior to the due date even though there was a delay in the lodging of the paper application and they believed the applicant’s Bridging visa would be backdated. She also provided details of her 5 year relationship with the applicant and said she is unable to depart Australia with him because she shares custody of two children with her ex-partner.

2. A written statement dated 12 March 2024 from the applicant’s partner’s mother, Ms Linda Mellsop was provided. Ms Mellsop referred to Ms Bucknell’s history of partner relationships, her two children, her father’s suicide and her previous trauma. She opined that the relationship between the applicant and Ms Bucknell is genuine, healthy and loving.

Does the applicant meet Schedule 3 criteria?

1. The Tribunal informed the applicant that he is required to meet criterion 3004 of Schedule 3 and that the hearing would focus on the requirements in criterion 3004(c) that the applicant was not the holder of a substantive visa because of factors beyond his control and criterion 3004 (d) that there were compelling reasons for granting the visa. As explained to the applicant at hearing, satisfaction of criterion 3004(c) concerning factors beyond the applicant’s control and criterion 3004 (d) are conjunctive and must both be satisfied. Satisfaction of criteria 3004(d) does not negate the need to satisfy criterion 3004(c).

2. The delegate’s decision contains a summary of the applicant’s immigration history. The evidence before the Tribunal is that the applicant’s substantive visa (a Working Holiday visa) ceased on 5 December 2019. Accordingly, the Tribunal finds that the applicant meets criterion 3004 (a) of Schedule 3 as he ceased to hold a substantive visa on or after 1 September 1994. The applicant is not required to meet criterion 3004(b) because it is an alternate requirement to criterion 3004 (a).

   Evidence at hearing

3. The Tribunal asked the applicant about posting the application from regional New South Wales the day before his substantive visa ceased. He said he sent the application by Express Post and he did not post it sooner because he had been awaiting his new United Kingdom passport to arrive which he needed to lodge the application. His United Kingdom passport could not be sent directly to him and had to be sent to his mother’s address in the United Kingdom and then posted to him in Australia. He cannot recall when he received the passport but referred to it being valid from 19 November 2019 and that he delayed posting his application for the Subclass 461 visa until it arrived. The applicant told the Tribunal that bushfires in the area where he was living also impacted on his ability to post the application earlier as they had to move their belongings from a high fire danger area.

4. Ms Bucknell told the Tribunal that she feels responsible for the delay in the applicant posting the application because she did not offer the applicant the option of a subclass 461 visa until very late. She said at the time she was recovering from a previous relationship and was not sure whether the applicant wanted to be with her or just wanted a visa.

5. The Tribunal asked the applicant whether there are compelling reasons in his case for granting the visa. He said if he is forced to depart Australia it will be devastating to leave Ms Bucknell and her children. He said he and Ms Bucknell have been in a relationship for 5 years and in that time they have only been apart for 1 week. He said he has a good relationship with Ms Bucknell’s children aged 15 years and 12 years and with her adult son aged 25 years. He said it would be very difficult for all of them if he has to walk away.

1. Ms Bucknell told the Tribunal that her two younger children adore the applicant and it has taken some time to settle them after she separated from their father. She said the applicant has been an important part in the children becoming settled and they are thriving personally and at school. Ms Bucknell gave evidence consistent with the applicant’s evidence with respect to their relationship and she became very emotional when discussing the possibility of him having to depart Australia.

2. Ms Bucknell told the Tribunal that her mother (Ms Mellsop) has not met the applicant in person but has talked to him on messaging and video. Given that Ms Mellsop has not spent time with the applicant and Ms Bucknell as a couple, the Tribunal gives her written statement minimal weight.

   Evidence provided following the hearing

3. Statement dated 22 March 2024 made by Ms Bucknell in which she provided the reasons her mother has not travelled to Australia. She also said that she and the applicant have reduced their shared care of her two younger children due to financial constraints. She stated that the applicant is a healthy step father and role model to the children. Miss Bucknell said if the applicant is required to depart Australia she will not be able to cope with the loss. She said he is her support person and if he is required to leave her mental health will suffer which will in turn have an adverse impact on her children.

4. Statement dated 22 March 2024 made by Mr Brian Nicholson, the father of Ms Bucknell’s two younger children in which he said the children have an emotional and ongoing connection and relationship with the applicant and they view him as family.

   Criterion 3004(c)

5. Criterion 3004(c) requires that the Minister (or the Tribunal on review) is satisfied that the applicant is not the holder of a substantive visa because of factors beyond the applicant’s control.

6. The Department’s Procedures Advice Manual (PAM3) provides guidance to decision makers about this requirement. PAM3 states that the phrase ‘factors beyond the applicant’s control’ is ‘to be given its natural meaning and considered against all relevant circumstances of the applicant’. It also provides that ‘[t]he test is whether the applicant became a person to whom 3003 or 3004 applies because of circumstances that were “external” to the applicant and over which they had no control’. Essentially two requirements must be satisfied:

   ·     there must be factors that caused the applicant to become an illegal entrant or a person without a substantive visa and

   ·     those factors must have been beyond the applicant’s control.

   The element of causation is important. It is not sufficient that factors beyond the control of the applicant existed. Those factors must have caused the applicant to become an illegal entrant or a person without a substantive visa.

7. The Tribunal has had regard to the Department’s policy. However, the Tribunal is also mindful that it is not bound to follow the Department’s policy but rather it is obliged to consider all the circumstances of the case and determine, on the evidence as a whole, whether it is satisfied that the applicant is not the holder of a substantive visa because of factors beyond the applicant’s control.

8. The Tribunal has had regard to various intermediate appellate court authorities regarding the interpretation of this provision including the decisions in Su v MIAC [2007] FMCA 318; Liu v MIAC [2010] FMCA 60; and Montero v MIBP [2014] FCCA 946.

1. The case of Su & Ors v Minister for Immigration & Anor [2007] FMCA 318 Smith FM, referring to the judgment of Mansfield J in Secretary, Department of Social Security v Secara & Ors (1998)89 FCR 151, states at [17]:

   The first is that a test of whether something was beyond the control of a person requires a consideration of whether that person, in his or her own particular circumstances, might have been able to do something to prevent the relevant event occurring. The test is in that sense "subjective", rather than being directed at deciding what would have been beyond the control of an abstract or "reasonable" person. A second point, is that what is "beyond control" should be tested by considering whether the happening of the event was or was not within the control of the applicant in a practical or realistic sense.

1. In the case of Su1, the court noted that the applicant could have kept himself informed of the expiry date on his visa in his passport and could have instructed his representative to do something about it. The court found that It was difficult to regard as ‘beyond control’ an event caused by forgetfulness or misunderstanding on the part of the person, where it was within the capacity of the person to appreciate what was needed and to perform an action which would have avoided the event occurring.

2. In Montero v MIBP [2014] FCCA 946 the applicant claimed he met criterion 3004(c) as he had submitted documents to his employer who prepared the application, repeatedly advised them of his visa expiry date, and that this was a type of visa application which required his employer’s assistance to lodge. The Tribunal did not accept it was beyond the applicant’s control to lodge the application within time himself and found his decision to let the employer lodge the application was a choice made within his control, referring to Su v MIAC [2007] FMCA 318. The court found the Tribunal made a jurisdictional error by misconstruing or misapplying criterion 3004(c) because it failed to consider that the applicant could not have applied for the visa without the cooperation of his employer; and that the applicant could not direct his employer to do what it had to do to enable him to apply before his Subclass 572 visa expired.

3. In Liu v MIAC [2010] FMCA 60 the applicant claimed that he did not hold a substantive visa because he misunderstood the duration of the initial visa due to factors beyond his control, being his lack of English, the complexity of the visa system, and the advice he received from the person who assisted him in applying for the initial visa. The Tribunal found these were not factors beyond the applicant’s control that led to him not having a substantive visa. In upholding the Tribunal’s decision, the court reiterated that the test for criterion 3004(c) is a subjective/objective test. First there must be an assessment of the facts to see whether the evidence demonstrates the applicant in his or her own particular circumstances might have been able to do something to prevent the relevant event occurring. Then, if that is satisfied, there must be an assessment of whether or not these facts were within the control of the applicant in a practical or realistic sense, measured objectively.

4. On 17 November 2021, the Department invited the applicant to provide reasons and evidence of the circumstances that both were beyond his control and were compelling reasons for granting the visa. On 14 December 2019, the applicant advised that he could provide a bank statement to show he paid for and posted the application for the subclass 461 visa on 4 December 2019.

5. In his reasons for seeking a review the applicant said he paid for and sent the application the day before his Working Holiday visa ran out. He said he did not know the reason it took 33 days for his application to be delivered to the Department and he assumed it would take 3 days at most. He also referred to bush fires and a state of emergency being declared where

1 Su & Ors v Minister for Immigration & Anor [2007] FMCA 318

he was living in November 2019. He said he had to move his sculpture work and all of his belongings away from the high fire danger area.

1. The Tribunal notes that a paper application was required and posting the application on 4 December 2019 meant the applicant relied on delivery to be the next day. Australia Post information regarding delivery indicates Express Post is delivered from regional New South Wales (where the applicant was residing) to Sydney CBD within 2 to 3 days.

2. The Tribunal has carefully considered the evidence of postage and payment on 4 December 2019. It is clear the applicant undertook some effort to ensure that his visa application was lodged prior to the expiry of his substantive visa, sending it by Express Post rather than ordinary mail. Although the applicant sent the application on 4 December 2019 it was realistically unlikely that the postal article would reach Sydney CBD the next day given the delivery guarantee times by Australia Post. Although an argument could be made that the applicant should, under ordinary circumstances, have given himself more time in applying for the visa to avoid a delay arising in the first instance, the Tribunal accepts the applicant’s evidence that the time period in question was a particularly stressful and unsettling one because of the bushfires which required moving their belongings and because he was awaiting a new United Kingdom passport which could not be sent directly to him and had to be sent to his mother in the United Kingdom and then to him in Australia.

3. The Tribunal also notes that the application was received by the Department 33 days after the applicant posted it using Express Post and therefore Australia Post did not perform its duty by ensuring the parcel was delivered within 2 to 3 days.

4. In the circumstances of the present case, having considered all the evidence that is before it, the Tribunal is satisfied that the applicant is not the holder of a substantive visa because of factors beyond his control criterion 3004(c) is met.

   Criterion 3004(d)

5. Criterion 3004(d) requires that the Minister (or the Tribunal on review) is satisfied that there are compelling reasons for granting the visa. The expression ‘compelling reasons’ is not specifically defined in the Act or Regulations; however, the reasons in question must force or drive the decision-maker irresistibly to some end.2 While the word ‘compelling’ may include reasons which are forceful, involve moral necessity or are convincing, it does not, by itself, necessarily require an involuntary element involving circumstances beyond a person's control.3 Circumstances which constitute ‘compelling reasons’ for not applying the Schedule 3 criteria can arise at any time, including after the visa application is made.4 Compelling reasons may stem from compassionate factors or may arise, for example, from the applicant’s circumstances or the circumstances of another person.

1. The Tribunal finds that the applicant and Ms Bucknell gave credible oral evidence about their relationship and the consequences for them and Ms Bucknell’s children if the applicant is required to depart Australia. The Tribunal finds there are reasons in this case which are

2 Plaintiff M64/2015 v MIBP [2015] HCA 50 at [31].

3 Paduano v MIMIA (2005) 143 FCR 204 at [37]. Note certain regulations are worded, however, so as to specifically require such an ‘involuntary element’. For example, reg 2.05(4) requires 'compelling and compassionate circumstances … over which the person had no control’. In considering

reg 2.05(4), the Court in Anani v MIMAC [2013] FCCA 1140 found that the delegate’s reference to policy to the effect that compelling circumstances generally referred to circumstances that were involuntary and characterised by necessity such that the visa holder was faced with a situation in which there was little or no alternative but to seek to remain in Australia did not establish a misstatement or misunderstanding of the law (at [33]).

4 Waensila v MIBP [2016] FCAFC 32

forceful, convincing and which involve moral necessity. Accordingly, the Tribunal is satisfied that there are compelling reasons in this case. The Tribunal has considered the likely consequences of not granting the visa on Ms Bucknell’s children and finds that, in the circumstances of the present case, there are compelling reasons for granting the visa. The Tribunal is therefore satisfied that there are compelling reasons for granting the visa as provided for in criterion 3004(d).

1. Criterion 3004(e) requires that the applicant has complied substantially with the conditions of previous substantive or bridging visas. There is no evidence before the Tribunal that the applicant has not complied with the conditions of previous substantive or bridging visas. The Tribunal is satisfied the applicant meets the requirement that he has complied with the conditions of previously held visas.

2. Criterion 3004(f) requires that the applicant would have been entitled to be granted the visa applied for. The applicant is a person referred to in criterion 3004 (a), and based on the evidence before it, the Tribunal is satisfied that if the applicant had applied for the visa when the holder of a substantive visa, he would have been entitled to the grant of the visa.

3. Criterion 3004(g) requires that the applicant intends to comply with the conditions to which the visa will be subject. Based on the applicant’s submissions, the Tribunal is satisfied the applicant meets this requirement.

4. Criterion 3004(h) requires that if the last visa held by the applicant was a temporary visa, it was not subject to a condition that the holder not be entitled to a further entry permit. The last substantive visa was not subject to this condition so criterion 3004 (h) does not apply.

5. For the above reasons the Tribunal is satisfied that the applicant either meets the requirements of criterion 3004(a) to (h), or they do not apply. Therefore, the applicant meets the requirements of criterion 3004 for the purposes of cl 461.213.

6. Given the findings above, the appropriate course is for the Tribunal to remit the matter to the Minister for reconsideration of the remaining criteria for the visa.

DECISION

The Tribunal remits the application for a New Zealand Citizen (Family Relationship) (Temporary) (Class UP) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 461 visa:

·Criterion 3004 for the purposes of cl

461.213 of Schedule 2 to the Regulations

Christine Kannis Member