Maamaloa (Migration)

[2021] AATA 671

Maamaloa (Migration) [2021] AATA 671 (5 February 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Tevita Tohi Maamaloa

CASE NUMBER:  1926117

DIBP REFERENCE(S):  BCC2018/3363881

MEMBER:Michael Cooke

DATE:5 February 2021

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision under review.

Statement made on 05 February 2021 at 10:33am

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 – major family health issues – referral for Ministerial Intervention - compassionate circumstances – decision under review affirmed           

LEGISLATION

Migration Act 1958, ss 65, 351
Migration Regulations 1994, Schedule 2, cl 461.213; Schedule 3 Criterion 3002

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 16 September 2019 to refuse to grant the visa applicant a New Zealand Citizen (Family Relationship) (Temporary) (Class UP) Subclass 461 visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 4 September 2018. The delegate refused to grant the visa on the basis that the applicant did not meet the criteria for a New Zealand Citizen (Family Relationship) (Temporary)(Class UP) Subclass 461 visa and, in particular, criterion 3002 of cl.461.213 of the Regulations.

3. The applicant through his representative has forwarded a submission regarding the applicant’s disabled daughter’s health situation and that of his partner as follows:

   Child’s severe illnesses

   The review applicant has instructed that Miss Elena June Maamaloa’s medical conditions are still the same (as at time of the delegate’s decision). Her severe ischaemic encephalopathy due to birth asphyxia, spastic quadriplegic cerebral palsy and bilateral hip dislocation are still being monitored at the Westmead Children hospital. She is still being nasogastric fed which is for life.4

   The review applicant has instructed that Miss Maamaloa was admitted again to hospital on 11 January 2021 and still being under closed observation by her doctors at Westmead Children hospital.

   The review applicant has instructed that Miss Maamaloa has been admitted to hospital as she dislocated both of her arms and chest infections. The dislocations of her arms are due to her cerebral palsy conditions and her bones are very sensitive. However, at this time, evidence of Miss Maamaloa’s admission and medical conditions are yet to be available.

   The review applicant has instructed that since the time of visa application, Miss Maamaloa has been attending regular overnight screening study at the Westmead Children hospital.

   The review applicant is providing further evidence and recent photographs of Miss Maamaloa during her ongoing medical treatments and monitoring.

   The review applicant has further instructed that the visa sponsor is currently six weeks pregnant with their fifth child and experiencing severe morning sickness all day long. She is also being monitored for a small subchorionic haematoma (bleeding).

4. The representative submits the visa applicant has also instructed that he cannot return to his country of citizenship (Tonga) due to circumstances outside of his control. Tonga’s borders have been closed since 23 March 2020 due to the Covid-19 pandemic. There have been no repatriated flights from Sydney to Tonga since then.

5. The applicant appeared before the Tribunal on 18 January 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Tongan and English languages.

6. The applicant was represented in relation to the review by his registered migration agent.

7. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether the applicant can meet the criterion 3002 of cl.461.213 of the Regulations.

   The Hearing

9. The applicant explained that he and his partner had 3 children and one on the way. His wife was presently in hospital due to issues with severe morning sickness. Their third child had serious birth complication at birth and as a result is severely disabled. She requires constant care at Westmead Hospital and her returns to the family home often result in return to hospital due to weakness in her bones and subsequent fractures from movement. She will require permanent care and seems to enjoy no quality of life other than the love of her parents for their child and what unremitting professional care the staff at Westmead Hospital can provide to little Miss June Maamaloa.

10. Her condition is permanent according to medical advice submitted by the applicant. She was born with severe ischaemic encephalopathy due to birth asphyxia, spastic quadriplegic cerebral palsy, bilateral hip dislocation and permanent nasogastric feed.

11. The Tribunal noted from the applicant’s submission that the applicant’s last substantive visa (a Temporary Work (Short Stay Activity)(Class GA)(Subclass 400)) visa expired on 26 August 2014. The delegate found that at the time of application, the review applicant had last held a substantive visa on 26 August 2014, which was 4 years and 7 days prior to time of visa application. The delegate concluded that that the review applicant did not meet criterion 3002 because he ceased to hold a substantive visa more than 12 months prior to lodging the application for the visa and in fact he had remained for 4 years and 7 days prior to time of visa application.

12. Th applicant was questioned by the Tribunal as to why he had not returned to either Tonga or New Zealand. He responded that his daughter’s precarious health situation did not allow him or his family to return to Tonga or New Zealand. He believed his daughter (Ms June Maamaloa) would not be able to receive the health care in New Zealand which they presently received at Westmead.

13. The Westmead specialist supports this contention in a recent submission to the Tribunal.

    REQUEST FOR REFERRAL TO THE MINISTER FOR HOME AFFAIRS FOR CONSIDERATION UNDER s.351 of the Act

14. The Tribunal acknowledges that a request was made by the applicant (through his representative) to refer their matter to the Minister in the event of an unfavourable decision on the review.

15. Under the Ministerial guidelines, the Tribunal may refer a case to the Department if the Tribunal member believes there are issues involved that fall within the unique or exceptional circumstances described in section 4 of the guidelines. The Tribunal has carefully considered the submissions and evidence and has decided to make a specific recommendation of referral. 

16. Both the applicant and his sponsor are not citizens or permanent residents of Australia. The applicant is a Tongan citizen and his partner is a New Zealand citizen of Rarotongan origin - the Tribunal is informed.

17. The applicant has informed the Tribunal in his representative’s submission that he acknowledges that he has been an unlawful non-citizen in Australia leading up to time of visa application for 4 years and 7 months but claims to have abided substantially with the visa conditions imposed on the last substantive visa held.

    Best interest of children

18. The applicant has instructed that he needs to remain with his family in Australia due to Miss Maamaloa’s severe medical conditions and to help his partner take care of their three younger children (ages 3, 2 and 1).

19. The applicant has instructed that if he were to depart Australia this would severely affect the mental, physical and emotional health of his partner.

20. The applicant has instructed that there is no one available to assist with caring and raising their four young children but himself and his partner. The review applicant’s uncle who had helped them from time to time moved to the USA. Therefore, leaving his partner here alone to take care of Miss Maamaloa and their three young children (all Australian born) with no physical and emotional support will be detrimental to the psychological health of her partner and the children.

21. The applicant has instructed that since he was granted with work rights, he has been working hard to provide for the family including medical costs for Miss June Maamaloa. His partner previously worked but is now pregnant with their fourth child and has health issues occasioned by the pregnancy (see medical information).

22. The applicant has instructed that his family cannot relocate to New Zealand because the applicant does not hold a visa for that country. He claims he cannot return to Tonga because of COVID19 considerations.

23. The Tribunal has reviewed the submission and it will request the Minister to intervene in the case based on the following Ministerial Guidelines for Intervention advice:

    ·Compassionate circumstances regarding the age and/or health and/or psychological state of the person that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to the person

24. The Tribunal finds that the applicant does not meet criterion 3002 of cl.461.213 of the Regulations. There is no avenue available to the applicant for waiver of this criterion.

25. Therefore, as the applicant does not meet the requirements for a Subclass 461 visa the delegate’s decision to refuse him the visa must be affirmed.

    DECISION

26. The Tribunal affirms the decision under review.

    Michael Cooke
    Senior Member