Melville (Migration) - [2024] AATA 4042

Melville (Migration) [2024] AATA 4042 (7 October 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mrs Lorraine Melville
CASE NUMBER:  2207472
HOME AFFAIRS REFERENCE(S):          BCC2020/2674879

MEMBER:Christine Kannis
DATE:7 October 2024
PLACE OF DECISION: Perth
DECISION:The Tribunal affirms the decision not to grant the applicant a New Zealand Citizen (Family Relationship) (Temporary) (Class UP).

Statement made on 07 October 2024 at 12:42pm
CATCHWORDS
MIGRATION – New Zealand Citizen (Family Relationship) (Temporary) (Class UP) visa – Subclass 461 – applicant was not the holder of a substantive visa at time of application – applicant fails to satisfy Schedule 3 criteria – applicant and her family will suffer significant financial and emotional hardship – have strong ties to the Australian community – a refusal of the visa would result in continuing hardship to an Australian citizen – unique exceptional circumstances – refers this matter to the Minister – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5, 65, 351
Migration Regulations 1994, Schedule 2, cl 461.213
CASES
Liu v MIAC [2010] FMCA 60
Su v MIAC [2007] FMCA 318
Montero v MIBP [2014] FCCA 946
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 12 May 2022 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 (Cth) (the Act).
The applicant applied for the visa on 19 November 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) of cl 461.213 to the Regulations. The delegate did not consider criteria 3002, 3003 and 3005.
The applicant appeared before the Tribunal on 7 October 2024 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s husband, Mr Stephen Melville.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether, at the time of application on 19 November 2020, the applicant met criterion 3004 for the purpose of cl 461.213.
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.
Schedule 3 to the Regulations contains additional criteria applicable to unlawful non-citizens and certain bridging visa holders.
On 10 November 2020 the applicant’s substantive visa ceased. The evidence before the Tribunal was that she lodged her application for a Subclass 461 visa by post which was received by the Department on 19 November 2020, 9 days after her substantive visa ceased.
On 16 March 2022, the Department sent the applicant a Natural Justice letter which requested that she provide information or other evidence that may be relevant to the assessment of whether she is able meet Schedule 3 criteria including but not limited to whether there were factors beyond her control which prevented her from lodging a valid application whilst she was still the holder of a substantive visa and any compelling reasons she considers may be relevant to the granting of the visa.
On 5 April 2022, the applicant responded to the Natural Justice letter and provided the following information in a statutory declaration:
(a)She was 8 days late submitting her application for the reasons outlined below but also because she made a genuine error and thought there was a 28-day grace period from when the visa expired to submit her renewal.
(b)She was waiting for important documents to arrive, which were impacted by the COVID-19 pandemic, so she could submit them with her application.
(c)She did not realise the impact being just over a week late would have and thought she was doing the right thing by waiting until she had the important documents. When she was preparing her application in October 2020 she realised her passport had expired. Irish passport renewals usually take 10 days however due to Level 5 of the Irish National Framework for Living with COVID-19, the Dublin passport office closed in October/November 2020 and paused processing of applications during this time. This was outside of her control. She could not get any assistance and went around in circles for a few weeks and was not able to get any help.
(d)As she did not have a current passport (which she believed to be a critical part of her application) to submit with her application she wanted to ensure she included all other important documents with her application. On 29 October 2020, she was notified that her AFP National Police Clearance had been processed and would be dispatched the next business day with an estimated postage time of 3-7 working days which she believed would have given her enough time to submit her application before her visa was due to expire on 10 November 2020. However there were major postage delays which were outside of her control and due to the COVID-19 pandemic it took almost 2 weeks to receive the document. She then submitted her application as soon as she could. She also decided to apply online for her passport anyway (despite the office being closed and no passports being processed) so that she could submit evidence that she had applied for a new passport with her application.
(e)She lives with her husband and two school aged children. Her husband and children are New Zealand citizens. She has been in a relationship with her husband for over 18 years and they have been married since January 2007. They have lived in the same property for almost 7 years and have made important friendships. Australia is the only home her children have known; they attend the local primary school and have strong ties to the school and community. Her eldest daughter, Elodie, was diagnosed with an Expressive Language Delay in 2018 and with a Specific Learning Disorder (Dyslexia) in March 2021. She has an Individual Education Plan at school and receives ongoing private therapy on a weekly basis. Any disruption to this could severely and negatively impact her progress.
(f)She has been with the same employer since January 2019 in a permanent part-time role. This employment allows her to pay for her daughter's therapy and her extra activities outside of school (dancing, art, sport etc) which are important in her development, self-esteem and in helping her gain new life skills.
(g)Her husband has been with his employer, Shell Australia, the entire time they have been in Australia (11+ years). If they need to leave Australia due to her visa being refused, he will lose his job which is the family’s main source of income. This would be detrimental to their family and would impact his career and his mental health. He was diagnosed with depression and anxiety in 2018 and looking after his health and well-being as well as his career is very important.
(h)If her visa is refused, she will have to leave Australia to apply for another visa. This will have two possible outcomes: She leaves and her children and husband stay. Processing times are long and she is the primary carer of the children and her husband provides the primary financial support. He will not be able to continue working in his current role and the children will be separated from one of their parents which will be detrimental to their emotional, physical and intellectual development. If the children leave with her then they will be separated from their father and from their home. If the whole family leaves, the children will be separated from their school and friends. They will have to sell their home to afford to buy or rent somewhere for the visa processing period and she and her husband will have to leave their jobs with no guarantee they could resume them upon returning to Australia. Both outcomes are equally disruptive to the whole family.
Evidence provided prior to the hearing
The applicant provided a written submission which included the following:
(a)Her husband was diagnosed with Stage 3 cancer in late 2023. Since then he has undergone medical treatment including surgery in February 2024. He is currently receiving ongoing treatment every 4 weeks at Fiona Stanley Hospital.
(b)During this challenging period she has been her husband’s primary caregiver, attending medical appointments and managing his care needs. Additionally, she is the main caregiver of the children, balancing their needs alongside her husband’s treatment. Her role encompasses providing emotional support, managing household responsibilities and ensuring the well-being of the family.
(c)She is devoted to supporting her husband through his recovery while also fulfilling her responsibilities as a parent.
The applicant provided a further written submission dated 26 September 2024 which included following:
(a)On completing her visa application she discovered her passport had expired. She attempted to renew her passport however due to COVID-19 the Irish Passport Office was closed and she was not able to secure a new passport in a timely manner.
(b)She contacted the Department by telephone for guidance on 26 October 2020 and expressed uncertainty about when she would be able to obtain a new passport. The Department was unable to provide guidance on how to navigate her situation leaving her uncertain about her options.
(c)Lacking a passport, which she believed was critical for her application, she awaited her AFP National Clearance Certificate. On 29 October 2020 she was notified that it had been processed however due to the pandemic it took nearly 2 weeks to arrive after which she submitted her visa application.
(d)Delays caused by the pandemic were beyond her control. The pandemic was a stressful situation and during that time she also faced personal challenges. She completed her Certificate III in Beauty Services while managing her work and family responsibilities. She was also worried about her sister in Ireland who had suffered a head injury and she could not travel to see her sister. She was also navigating her daughter’s SLD diagnosis and subsequent ADHD diagnosis.
(e)In late 2023 her husband was diagnosed with Stage 3 cancer and underwent surgery in February 2024. He is now subject to 4 weekly reviews. It has been a stressful time financially and mentally. She is the primary caregiver for her husband and her children. Her children are worried about their father and their daughter Lucia has seen the school chaplain for her anxiety.
(f)Elodie has lived in Australia all her life and is an Australian citizen. If they have to leave the country it might put her place in high school in jeopardy. She needs additional support because of her learning difficulties and ADHD.
(g)Lucia is scheduled to have her first orthodontics fitted on 14 October 2024 which involves a considerable financial and care commitment.
(h)They are a close-knit family and separation would take an immense emotional toll. She is worried about her husband’s mental health if he has to undergo cancer treatment on his own in Australia. He has no relatives in Australia. Additionally managing two households financially including a mortgage in Australia would add to the stress.
A written submission from the applicant’s husband was also provided which included information consistent with information provided by the applicant in relation the diagnosis and treatment of his cancer illness and related stress. He referred to the applicant’s emotional support and the emotional impact of his illness on their children. He referred to his work-related depression in 2018 and the applicant’s support in helping him manage this condition. The applicant’s husband said if she is forced to leave the country it will affect his mental and physical health and the family would face financial strain because they would have to maintain two residences. He cannot leave Australia because he may need to use his accrued sick leave entitlement, his private health insurance would become void and finding a new job would be challenging.
Additional documents were provided including but not limited to a Vodafone bill evidencing telephone calls made on 26 October 2020, the children’s Birth Certificates, photographs, evidence in relation to Elodie’s education and medical evidence in relation to the applicant’s husband.
Does the applicant meet Schedule 3 criteria?
The Tribunal informed the applicant that she 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 her control. The Tribunal informed the applicant that it would also consider 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).
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 ceased on 10 November 2020. Accordingly, the Tribunal finds that the applicant meets criterion 3004 (a) of Schedule 3 as she 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 provided at the hearing
The Tribunal put to the applicant that she did not need a valid passport or an AFP National Police Clearance to apply for the visa, noting that the delegate had made the same point. The applicant told the Tribunal that she contacted the Department twice by telephone on 26 October 2020 to discuss her visa application. In the first contact she was referred to the Department’s website for information about lodging her visa application. She could not find the information she required and called back within a couple of minutes. She told the Tribunal that she did not recall being advised that she could proceed with lodging her application for a visa without a current passport.
The applicant conceded that she had misunderstood the requirements for her visa application and explained that she believed her passport was a critical requirement because it verified her identification. She said in previous automated responses from the Department she had been advised that it was in her best interests to lodge a completed application and although she understood that other matters such as medical examinations would be required after the application was lodged , she misunderstood the identification requirements at the time of lodgement.
The applicant explained to the Tribunal that prior to and at the time of lodging the application for the visa, she experienced stress due to the study associated with completion of her Certificate III in Beauty Services in September 2020, her worry about being unable to travel to Ireland if required in relation to her sister’s head injury and the ongoing learning difficulties with Elodie.
Mr Stephen Melville told the Tribunal that when he lived in Ireland his visa was stamped in his passport and that contributed to their misunderstanding that a valid current passport was required when the applicant applied for a Subclass 461 visa in Australia. Mr Melville confirmed that if the applicant is required to depart Australia, the children will leave with her and he will remain in Australia for the reasons set out in his written submission.
The Tribunal asked the applicant and her husband about the statement that Elodie is an Australian citizen. Mr Melville said he has been working to obtain Australia citizenship and in doing so the Department advised him to remove Elodie from his application as she is an Australian citizen because she has resided here since her birth, more than 10 years ago.
The Tribunal notes that all children born in Australia to New Zealand citizens from 1 July 2023 are automatically an Australian citizen upon birth. The Department’s website says that a person may be eligible for evidence of citizenship if they were born in Australia on or after 20 August 1986 and were ordinarily resident in Australia throughout the first 10 years from birth. There was no evidence of Elodie’s Australian citizenship before the Tribunal however based on the written and oral evidence, the Tribunal finds that she has been ordinarily resident in Australia throughout the first 10 years from her birth on 22 May 2014.
As noted, 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 her control. 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.
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.
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.
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.

In the case of Su[1], 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.
[1] Su & Ors v Minister for Immigration & Anor [2007] FMCA 318
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.
On 5 April 2022, the applicant advised the Department that she was late in submitting her visa application because she made a genuine error as she believed she had a 28 day grace period from when her visa expired. She also said it took time to organise her new Irish passport and AFP certificate due to postage and processing delays caused by COVID-19 restrictions and she believed that these documents were required prior to lodgement. The applicant told the Tribunal she had contacted the Department and was not provided with helpful advice about the requirements to lodge her visa application. She also referred to stressors of her study in 2020, her daughter’s ongoing learning difficulties and her worry that she would not be able to return to Ireland for her sister if she was required to do so.
The Tribunal has considered the entirety of the information before it and accepts that the COVID-19 pandemic and associated restrictions are factors beyond the applicant’s control and accepts that these factors likely extended the amount of time it took for the applicant to receive her new passport and AFP certificate. The Tribunal also accepts that study and family matters caused her a degree of stress in late 2020. However the Tribunal finds that these events faced by the applicant during the period from October to November 2020 are not ultimately relevant to an overall assessment of whether she was not the holder of a substantive visa because of factors beyond her control. The applicant did not need a valid passport in order to lodge a valid application for the present visa. There is nothing in the migration legislation, including in Schedule 1 of the Migration Regulations, that precluded her from doing so based on her not holding a valid passport. While the Tribunal accepts that the applicant is likely not knowledgeable about the Schedule 1 requirements, the application form itself left open the option for the applicant to put down that she did not hold a valid passport.
Based on the above information including the decisions in Su and Liu , the Tribunal finds that it was within the control of the applicant in a practical or realistic sense to have known that she could lodge the application without being the holder of a valid passport and could have lodged the application prior to the expiration of her visa on 10 November 2020. In the Tribunal’s view the onus is on the visa applicant to check their eligibility before applying and to ensure that they lodge their application prior to the expiry of their visa.
Accordingly, the Tribunal is not satisfied that the applicant was not the holder of a substantive visa at the time the present visa was applied for because of factors that were beyond her control. The applicant therefore does not meet the requirement of Schedule 3 criterion 3004(c).
As the applicant is unable to meet a cumulative requirement of Schedule 3 criterion 3004, she does not meet that criterion in its entirety and therefore does not meet cl.461.213. The Tribunal does not have the discretion to waive the requirement in cl. 416.213(b)(ii). There is no avenue available for the waiver of this criteria.
The Tribunal is not required to consider whether the applicant meets the remaining 3004 criterion however for completeness, and relevant to the referral to the Minister, it makes the following findings in relation to criterion 3004(d).
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.
[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
The Tribunal finds that the applicant and her family will suffer significant financial and emotional hardship if she is required to depart Australia. The Tribunal finds that the applicant and her husband have resided in Australia for an extended period, that they each have long-term employment and that both their children have resided in Australia since their respective births. The Tribunal finds that the applicant, her husband and her children have strong ties to the Australian community. The Tribunal finds that if the applicant is required to depart Australia, the children will depart with her and her husband will remain in Australia and the family unit will be separated. The Tribunal finds there are reasons in this case which are forceful, convincing and which involve moral necessity. Accordingly, the Tribunal is therefore satisfied that there are compelling reasons for granting the visa as provided for in criterion 3004(d).
MINISTERIAL INTERVENTION
Section 351 of the Act provides that, if the Minister thinks that it is in the public interest to do so, the Minister may substitute for a decision of the Tribunal another decision, being a decision that is more favourable to the applicant, whether or not the Tribunal had the power to make that other decision. In deciding whether to refer the matter to the Minister for consideration under s.351 the Tribunal has had regard to the President’s Direction Conducting Migration and Refugee Reviews, especially at paragraphs 16.1–16.7 concerning referrals for ministerial intervention and the Minister’s Guidelines on ministerial powers (s351, s417, and s501J) available in the Procedures Advice Manual 3 (the Minister’s Guidelines).
Among other things, the Minister’s Guidelines state that the Minister may consider exercising his or her discretion in cases that exhibit one or more ‘unique or exceptional circumstances’. The Guidelines then identify factors that may be relevant, individually or cumulatively, in assessing whether a case involves unique or exceptional circumstances. They include the following:
·Strong compassionate circumstances that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to an Australian citizen or an Australian family unit, where at least one member of the family is an Australian citizen or Australian permanent resident.
·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.
·The length of time the person has been present in Australia (including time spent in detention) and their level of integration into the Australian community.
The Minister’s Guidelines further note relevant issues including circumstances that may bring Australia’s obligations as a party to the Convention on the Rights of the Child (CROC) into consideration and circumstances that may bring Australia’s obligations as a party to the International Covenant on Civil and Political Rights (ICCPR) into consideration. The Tribunal notes that CROC Article 3 provides: ‘In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration’. ICCPR Article 23.1 provides: ‘The family is the natural and fundamental group unit of society, and is entitled to protection by society and the State.’
The Tribunal finds there are strong compassionate circumstances that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to an Australian citizen. As noted, the Tribunal accepts that the child Elodie is eligible for Australian citizenship and that a refusal of the visa would result in continuing hardship to an Australian citizen or an Australian family unit.
The Tribunal accepts the relevance of CROC and ICCPR and finds that the best interests of the children in the present case include that they remain living in the same country with both their parents, noting that the anxiety with respect to their father’s illness is likely to intensify the emotional impact of any separation.
The Tribunal accepts that a refusal of this application will have a significant detrimental financial and emotional impact on the applicant and each member of her family. The Tribunal accepts that the applicant and her family have been present in Australia for an extended period and have established social, financial, educational ties to the Australian community.
The Tribunal refers this matter to the Minister based on the unique exceptional circumstances relating to the applicant’s case. In particular, the Tribunal is of the view that if the applicable compassionate circumstances are not recognised the applicant and her family will suffer serious, ongoing and irreversible harm and hardship.
DECISION
The Tribunal affirms the decision not to grant the applicant a New Zealand Citizen (Family Relationship) (Temporary) (Class UP).