Lolohea (Migration)

[2017] AATA 1467

Lolohea (Migration) [2017] AATA 1467 (31 August 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Pita Heitukutonga Lolohea

CASE NUMBER:  1612192

DIBP REFERENCE(S):  N94/111741

MEMBER:Kira Raif

DATE:31 August 2017

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Transitional (Temporary) visa in Subclass 812.

Statement made on 31 August 2017 at 6:25pm

CATCHWORDS

Migration – Transitional (Temporary) Visa – Subclass 812 – Not in genuine and continuing marital relationship from before 15 October 1990 – Not aged parent of Australian citizen or resident – Not aged dependent relative or special need relative – No continuing compassionate grounds – Request for Ministerial Intervention

LEGISLATION

Migration Act 1958, ss 65, 351

Migration Regulation 1994, Schedule 2 cl 812.723
Migration Reform (Transitional Provisions) Regulations 1994, r.23(2)

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 5 September 1996 to refuse to grant the visa applicant a Transitional Permanent Visa Subclass 812 visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant is a national of Tonga, born in November 1947. He applied for the visa on 21 December 1993. The delegate refused to grant the visa on the basis that the applicant did not meet cl. 812.723. The applicant was re-notified of the delegate’s decision on 10 July 2016. The applicant seeks review of the delegate’s decision.

3. On 11 August 2017 the Tribunal wrote to review applicant advising that it had considered all the material before it relating to his application but it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing on 6 September 2017. On 30 August 2017 the applicant advised the Tribunal that he did not wish to give oral evidence and consented to the Tribunal proceeding to make a decision on the review without taking any further action to allow or enable him to appear before it. This matter has therefore been determined on the evidence available to the Tribunal.

   Relevant law

4. On 1 September, the 1993 Regulations were replaced by the Migration Regulations 1994. Under r.23(2) of the Migration Reform (Transitional Provisions) Regulations 1994 (the Transitional Regulations), an application for a temporary entry permit or a permanent entry permit made on or after 19 December 1989 and before 1 September 1994, and not finally determined before that date is taken, on that date, to be an application for a transitional (temporary) visa or a transitional (permanent) visa respectively. Pursuant to r.23(3) of the Transitional Regulations, such an application is to be decided according to the criteria that applied to the entry permit for which application was made.

5. Clause 812.723 relevantly states the following:

   (1)      The applicant satisfies the requirements of subclause (2),(3), (4), (5) or (6).

   (2)An applicant satisfies the requirements of this subclause if he or she is in a marital relationship that is both genuine and continuing, that began on or before 15 October 1990, as the spouse of an Australian citizen or Australian permanent resident.

   (3)An applicant satisfies the requirements of this subclause if he or she has, since 15 October 1990, been the dependent child of an Australian citizen or an Australian permanent resident.

   (4)An applicant satisfies the requirements of this subclause if:

   (a)the applicant has been, since 15 October 1990, an aged parent of an Australian citizen or an Australian permanent resident; and

   (b)on 15 October 1990 and continuously since that date the applicant satisfied the balance of family test in regulation 1.5.

   (5)      An applicant satisfies the requirements of this subclause if on 15 October 1990 and continuously since that date, the applicant was:

   (a)         an aged dependent relative; or
   (b)         an orphan relative; or
   (c)         a special need relative; or
   (d)         a remaining relative;
   of a settled Australian citizen or of a settled Australian permanent resident.
   (NOTE: The various kinds of relative mentioned in subclause (5) are defined in regulation 1.3.)

   
   
   
   
   
   

   (6)An applicant satisfies the requirements of this subclause if, subject to subclause (7):

   (a)there was, on 15 October 1990, any compassionate ground (other than the grounds mentioned in subclauses (1) to (5)) for the grant to the applicant of an entry permit, to the effect that refusal to grant the entry permit would have caused extreme hardship or irreparable prejudice to an Australian citizen or an Australian permanent resident; and

   (b)the compassionate ground continues to exist.

   (7)For the purposes of subclause (6), "compassionate ground" does not include a circumstance that results directly from an event of a political nature only that occurred in the applicant's country of citizenship or of usual residence.

   Claims and evidence

6. The applicant provided to the Tribunal a copy of the primary decision record. The Tribunal has had regard to the information contained in the decision record, as well as the information the applicant provided to the delegate and the Tribunal.

7. There is, essentially, no evidence before the Tribunal to indicate that the applicant meets any of the subclauses set out in cl. 812.723. There is no evidence that the applicant is in a genuine and continuing marital relationship that began on or before 15 October 1990. The Tribunal is not satisfied the applicant meets cl. 812.723(3). There is no evidence that the applicant has been, since 15 October 1990, an aged parent of an Australian citizen or resident and that since that date, the applicant had satisfied the balance of family test. The Tribunal is not satisfied the applicant meets cl. 812.723(4). There is no evidence that on, and since 15 October 1990, the applicant was an aged dependent relative, or an orphan relative, or a special need relative or a remaining relative of an Australian citizen or permanent resident. In his submission to the Tribunal of 30 August 2017 the applicant claims that he came to Australia as a special need relative of his cousin, but there is no evidence that the applicant continues to satisfy that requirement. The Tribunal is not satisfied the applicant meets cl. 812.723(5).

8. There is no evidence that there was, on 15 October 1990, any compassionate ground that continues to exist. In his written submission to the Tribunal the applicant refers to various health needs that he presently has and that his daughter had when they entered Australia. However, the Tribunal is not satisfied that the applicant’s own health needs existed on 15 October 1990 and that his daughter’s needs, even if these did exist in October 1990, continue to exist. The Tribunal is not satisfied the applicant meets cl. 812.723(6).

9. The Tribunal is not satisfied on the evidence before it that the applicant meets cl. 812.723.

10. The applicant has requested that the Tribunal refer the case to the Department for consideration by the Minister pursuant to s.351 which gives the Minister a discretion to substitute for a decision of the Tribunal another decision that is more favourable to the applicant, if the Minister thinks that it is in the public interest to do so. The applicant refers to his poor health and his reliance on his daughter in Australia to look after his medical needs. The applicant refers to the presence of family in Australia, as well as Tonga and states that the family in Tonga cannot support him financially for a variety of reasons. The applicant refers to the length of his residence in Australia and outlines the reasons he cannot return to Tonga. The Tribunal acknowledges these submissions but the Tribunal does not accept the entirety of the applicant’s evidence. The Tribunal is mindful that the applicant does have close family in Tonga and the Tribunal is not satisfied that such family members are unable to provide requisite care to the applicant. There is also no obvious reason why his family in Australia cannot provide the financial support to the applicant, even if his family in Tonga cannot support him financially. There is very little evidence before the Tribunal to indicate that the applicant will not be able to access adequate medical care in his home country. The Tribunal acknowledges the statement from Dr Sheridan which refers to lack of medication in Tonga. It does not indicate the source of that information, not does Dr Sheridan’s letter indicate whether any consideration has been given to whether medication could be supplied to the applicant overseas, either by his family or by other organisations. The Tribunal is also mindful that despite the length of the applicant’s residence in Australia, much of that time the applicant has spent in Australia as an unlawful non-citizen. The Tribunal accepts that there are compassionate circumstances in this case. However, having considered the ministerial guidelines relating to the discretionary power set out in the Department’s Procedures Advice Manual (PAM3) the Tribunal has decided not to refer the matter. The Tribunal notes that the applicant can still make a request directly to the Minister.

    Decision

11. The Tribunal affirms the decision not to grant the applicant a Transitional (Temporary) visa in Subclass 812.

    Kira Raif
    Senior Member