Mimoso (Migration)

[2021] AATA 4011

Mimoso (Migration) [2021] AATA 4011 (30 September 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Francisco Javier Mimoso

CASE NUMBER:  2107767

HOME AFFAIRS REFERENCE(S):          BCC2020/1997266

MEMBER:Alison Murphy

DATE:30 September 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the visa applicant a Return (Residence) (Class BB) visa.

Statement made on 30 September 2021 at 4:00pm

CATCHWORDS
MIGRATION –subclass 155 (Five Year Resident Return) visa – not satisfied the applicant is or has ever been the holder of an Australian permanent visa – applicant’s presence in Australia was not recorded – unique and exceptional circumstances – Ministerial Intervention referral – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 351, 360

Migration Regulations 1994, Schedule 2, cls 155.211, 155.221

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 Home Affairs on 27 May 2021 to refuse to grant the visa applicant (the applicant) a Return (Residence) (Class BB) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 29 July 2020. At the time of application, Class BB contained two subclasses – Subclass 155 (Five Year Resident Return) and Subclass 157 (Three Month Resident Return). In this case, claims have been advanced in respect of Subclass 155. The criteria for a Subclass 155 visa are set out in Part 155 of Schedule 2 to the Migration Regulations 1994 (the Regulations). Relevantly to this case, they include cl.155.221, which requires that the applicant for the visa either be a former Australian citizen or a current or former Australian permanent resident.

3. The delegate refused to grant the visa on the basis that the applicant did not meet cl.155.221 because he is not a former Australian citizen and the delegate was not satisfied the applicant had ever been an Australian permanent resident.

4. The applicant was represented in relation to the review. In email correspondence dated 14 and 24 September 2021, the applicant’s representative conceded that the applicant does not meet the criteria for the grant of the visa and confirmed that the applicant waived his right to a hearing pursuant to s 360(2)(b). The representative advised that the applicant wished to seek Ministerial intervention and requested that the Tribunal refer the matter to the Minister pursuant to s 351 of the Act.

5. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed and the matter referred to the Department to be brought to the Minister’s attention.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in this case is whether the applicant meets the residency/ citizenship requirement set out in cl.155.211.

7. In this case, it is not in dispute that the applicant arrived in Australia on 16 May 1999 as a ten-month-old baby travelling on his mother’s passport. Copies of his mother’s passport containing the applicant’s name as a child travelling on her passport have been provided to the Departmental by the applicant. The Department has also located the incoming passenger card which shows the applicant arrived in Australia from Spain on 16 May 1999. That card records the applicant as a ‘resident returning to Australia’.

8. However for reasons that remain unclear, the applicant’s arrival was not recorded in ICSE or the Department’s mainframe and consequently it appears that the applicant’s presence in Australia was not known by the department until relatively recently. Internal correspondence dated 27 May 2021 contained on the Departmental file suggests that departmental records were only updated at that time to reflect that the applicant was in Australia.

9. The applicant and his family appear to have believed he was granted entry to Australia as a dependent on his mother’s resident return visa, as stated on his incoming passenger card. His mother’s movement records indicate she is an Italian national who was granted the resident return visa on 8 September 1997, shortly before departing Australia the following month. She re-entered Australia on 16 May 1999 together with the applicant who was born in Madrid, Spain during the time she was outside of Australia.

10. However the Departmental file indicates that the delegate was unable to find any evidence that the applicant was ever granted a visa to enter or remain in Australia, either before or after his entry to Australia. The applicant’s representative submitted that the applicant was included in one of his mother’s applications for a further resident return visa, but correspondence between the department and the applicant’s representative records that departmental file N97795127 (relating to the applicant’s mother’s resident return visa) was destroyed in line with the Department’s record destruction policy on 1 August 2001. In any event her movement records suggest that visa was issued to her in 1997, before the applicant was born, and that she has not since been granted any other visa.

11. I note the pages of a visa application stated to be a visa application lodged in respect of the applicant, however it is not clear whether that visa application was ever lodged and the mother’s visa records do not indicate that it was ever granted. I have had regard also to the receipt from the department in respect of a payment of $10.00 made in respect of the applicant on 20 January 2003, but I am unable to ascertain what that payment was for. On the evidence before me, I am not satisfied the applicant is or has ever been the holder of an Australian permanent visa.

12. Notwithstanding that the applicant’s presence in Australia was not recorded by the Department, it does not appear to be in dispute that he grew up in NSW with his family comprising his parents and brother. He has provided education and Centrelink records, a NSW learners’ permit and other Australian identity documents to the Department. Movement records relating to his father and brother indicate they are both Australian citizens while his mother continues to hold a resident return visa.

13. It appears that it was not until the applicant applied for Australian citizenship in January 2018 that he became aware that he was in Australia without a visa, leading to the current application for a resident return visa.

14. Clause 155.211 requires that at the time of application the applicant either:

    ·is an Australian permanent resident; or

    ·was an Australian citizen but has subsequently lost or renounced Australian citizenship; or

    ·is a former Australian permanent resident, other than a former Australian permanent resident whose most recent permanent visa was cancelled.

15. It is not suggested that the applicant has at any time been an Australian citizen who has subsequently lost or renounced his citizenship and I find that he has not. Consistently with my findings above, the applicant through his representative now acknowledges that he is not a current or former permanent resident of Australia and I find that he is not. Therefore he does not meet the criteria set out in cl 155.211.

16. For these reasons, the Tribunal finds the visa applicant does not meet the criteria for the grant of a Subclass 155 visa. For the same reasons he does not meet the criteria for a Subclass 157 visa set out in cl.157.211, which includes the same residency/citizenship requirement as that set out in cl.155.211. Therefore the Tribunal must affirm the decision not to grant the visa applicant a Return (Residence) (Class BB) visa.

    Ministerial Intervention

17. Under s.351 of the Act, the Minister may substitute for a decision of the Tribunal, a decision that is more favourable to the applicant, if the Minister thinks that it is in the public interest to do so.  The Tribunal has no statutory obligation to consider whether matters should be referred to the Minister for the consideration of his powers under s.351, nor is there any statutory power to make a binding recommendation in this regard.  The power under s.351 may only be exercised by the Minister personally.

18. The Minister has issued guidelines explaining the circumstances in which he may wish to consider exercising his powers under s.351 of the Act. Those guidelines indicate that the Minister will generally only consider exercising his public interest powers which exhibit one or more unique or exceptional circumstances, including circumstances that the legislation does not anticipate or clearly unintended consequences of legislation or where the application of relevant legislation leads to unfair or unreasonable results.

19. Having regard to the circumstances of the applicant and having considered the Ministerial guidelines relating to the Minister’s discretionary power under section 351 set out in the ‘Minister’s guidelines on ministerial powers (sections 351, 417, and 501J)’, the Tribunal considers this case should be referred to the Department to be brought to the Minister’s attention on the basis that it appears to raise circumstances of a kind the Minister has indicated should be brought to his attention in those Guidelines. 

20. In Part 4 of those Guidelines, the Minister states that the following cases should be brought to his attention:

    Cases that have one or more unique or exceptional circumstances, such as those described below, may be referred to me for possible consideration of the use of my intervention powers:

    • 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;
    • circumstances not anticipated by relevant legislation; or clearly unintended consequences of legislation; or the application of relevant legislation leads to unfair or unreasonable results in a particular case.

21. In this case the applicant has resided in Australia since his arrival as a 10-month-old baby travelling on the passport of his mother. Nothing in the material before me suggests that he entered Australia unlawfully or covertly, rather his presence was declared on the incoming passenger card that was provided to and retained by the Department. I note his mother entered lawfully as the holder of a permanent resident visa at the time and she continues to hold that visa.

22. Although the applicant’s entry into Australia was recorded and retained in the incoming passenger card, it appears that it was not recorded in the Department’s digital records and as a consequence the Department appears to have been unaware of his continuing presence in Australia. In the absence of any other explanation, it would appear that some sort of administrative error occurred upon the applicant’s arrival. The family’s belief that the applicant was granted entry to Australia as a dependent on his mother’s resident return visa may explain why his visa status in Australia was never regularised.

23. The applicant has lived in Australia for nearly all of his life, not having departed since his arrival in 1999. All of his immediate family members reside in Australia lawfully. As noted above, his father and brother are Australian citizens. In these circumstances I consider that there are strong compassionate circumstances raised in this matter and that the application of the relevant legislation would lead to an unfair or unreasonable result in this particular case. Therefore I consider it is appropriate for the Tribunal to bring this matter to the Minister’s attention.

    DECISION

24. The Tribunal affirms the decision not to grant the visa applicant a Return (Residence) (Class BB) visa.

    Alison Murphy
    Member