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…

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.

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Details

AGLC: Melville (Migration) [2024] AATA 4042
Case: [2024] AATA 4042
Decision Date: 7 October 2024

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the case of an applicant for a New Zealand Citizen (Family Relationship) (Temporary) (Class UP) visa, Subclass 461. The dispute centred on whether the applicant met the criteria for the visa, specifically concerning her immigration status at the time of application. The applicant had failed to hold a substantive visa when she lodged her application, meaning she was required to satisfy Schedule 3 criteria.

The primary legal issue before the Tribunal was whether the applicant satisfied criterion 3004 of Schedule 3, as required by clause 461.213(b)(ii) of the Migration Regulations 1994. This criterion applies when an applicant does not hold a substantive visa at the time of application and their last substantive temporary visa was not of a specified type. The Tribunal had to determine if the applicant's failure to lodge her application while holding a substantive visa was due to factors beyond her control and if there were compelling reasons for granting the visa.

The Tribunal noted that the applicant's substantive visa ceased on 10 November 2020, and her application was received by the Department on 19 November 2020, nine days later. The applicant provided a statutory declaration detailing several reasons for the delay, including a genuine error regarding a grace period, delays in receiving essential documents due to the COVID-19 pandemic, and an expired passport requiring renewal from a closed Irish passport office. She also highlighted significant postal delays in receiving a police clearance certificate. Furthermore, the applicant presented evidence of strong ties to the Australian community, including her long-term relationship with her Australian citizen husband, her children's Australian upbringing and schooling, and her stable employment. The Tribunal acknowledged the potential for significant financial and emotional hardship to her family, including her husband's employment and her daughter's ongoing therapy, if the visa were refused.

Despite acknowledging the applicant's circumstances and the hardship that would result from a refusal, the Tribunal concluded that the decision under review should be affirmed. The Tribunal found that the applicant did not satisfy the Schedule 3 criteria. However, the Tribunal referred the matter to the Minister under section 48B of the Migration Act 1958, indicating that there were unique and exceptional circumstances that warranted consideration for a waiver of the Schedule 3 requirements.

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

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

Ratio Decidendi

Legal Principle Established

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