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

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

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Leith (Migration)

Details

AGLC: Leith (Migration) [2024] AATA 735
Case: [2024] AATA 735
Decision Date: 25 March 2024

CaseChat Overview and Summary

This matter concerned an application for review of a decision by the Department of Home Affairs to affirm a refusal to grant a Subclass 461 New Zealand Citizen Family Relationship (Temporary) visa. The applicant, a New Zealand citizen, sought to have the decision set aside and remitted for reconsideration. The core of the dispute revolved around whether the applicant met criterion 3004 of Schedule 3 to the Migration Regulations 1994, which applies to unlawful non-citizens and certain bridging visa holders at the time of application.

The legal issues before the Tribunal were whether the applicant had satisfied the requirements of criterion 3004, specifically concerning the timing of his visa application and the circumstances surrounding any delay. The applicant contended that while his application was lodged 33 days after his previous substantive visa expired, this delay was due to factors beyond his control, including the need to renew his passport from the United Kingdom and the subsequent postal delay of his application. He also presented evidence of his ongoing relationship with his partner, an Australian citizen, and her shared custody arrangements for her children, which prevented her from leaving Australia with him.

The Tribunal considered the applicant's explanation for the delay, noting that he had provided evidence of his passport renewal and a bank statement indicating payment for the application was made on 4 December 2019, prior to his previous visa's expiry. The applicant's partner corroborated his account, stating they believed the bridging visa would be backdated and that the delay in lodging the paper application was due to awaiting the new passport. The Tribunal accepted that the applicant had made genuine efforts to lodge his application on time, but external factors, including postal delays, contributed to the application being formally lodged after the expiry of his substantive visa. The Tribunal also acknowledged the impact of the bushfires and the applicant's partner's custody arrangements as potentially compelling reasons for the delay.

Consequently, the Tribunal concluded that the matter should be remitted for reconsideration. This decision was based on the finding that the applicant had provided sufficient evidence to suggest that the delay in lodging his application was due to circumstances beyond his control, and that there were potentially compelling reasons that warranted further consideration under criterion 3004.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration. 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. Clause 461.213 says:If the application is made in Australia: Schedule 3 to the Regulations contains additional criteria applicable to unlawful non-citizens and certain bridging visa holders.Evidence provided prior to the hearing 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. 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: 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. 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. 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.