Murphy (Migration) - [2025] ARTA 143

Murphy (Migration) [2025] ARTA 143 (7 February 2025)
DECISION AND
REASONS FOR DECISION
Applicant:Miss Claire Murphy
Respondent:  Minister for Home Affairs
Tribunal Number:  2208279
Tribunal:General Member C Kannis
Place:Perth
Date:  7 February 2025
Decision:The Tribunal remits the application for a New Zealand Citizen (Family Relationship) (Temporary) (Class UP) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 461 visa:

Criterion 3004 for the purposes of cl 461.213 of Schedule 2 to the Regulations·

Statement made on 07 February 2025 at 7:56am
CATCHWORDS
MIGRATION – New Zealand Citizen (Family Relationship) (Temporary) (Class UP) visa – Subclass 461 – did not have a substantive visa at the time of application – the delays brought about by the pandemic were beyond the applicant’s control– criterion 3004(c) is met – decision under review remitted
LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 461.213, Schedule 3
CASES
Liu v MIAC [2010] FMCA 60
Montero v MIBP [2014] FCCA 946
Su v MIAC [2007] FMCA 318

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 18 May 2022 to refuse to grant the 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 18 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.
From 14 October 2024, the Administrative Appeals Tribunal (AAT) became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
The applicant appeared before the Tribunal on 3 February 2025 to give evidence and present arguments. The Tribunal also received oral evidence from the…

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.

Continue reading Murphy (Migration)

Details

AGLC: Murphy (Migration) [2025] ARTA 143
Case: [2025] ARTA 143
Decision Date: 7 February 2025

CaseChat Overview and Summary

In the case of Murphy, the applicant, a New Zealand citizen, sought a Subclass 461 visa to reside in Australia temporarily due to family relationships. The Tribunal considered the application in light of the pandemic's impact and the delays it caused in processing. The primary issue was whether the applicant met criterion 3004 under clause 461.213, which requires the applicant to have held a substantive temporary visa at the time of application or to satisfy certain conditions if not holding a substantive visa. The applicant's substantive visa expired two days before she submitted her visa application, and she argued that the pandemic's disruption was beyond her control.

The Tribunal had to determine if the delays caused by the pandemic qualified as factors beyond the applicant's control, thus meeting criterion 3004. The applicant submitted evidence that she had made a payment for the application online and believed it would be sufficient, only to realise later that she needed to submit the application by post. She cited her responsibilities as a full-time working mother of two young children as contributing to the oversight. The Tribunal assessed the evidence and concluded that the applicant's situation was indeed affected by circumstances beyond her control, particularly the COVID-19 pandemic.

Based on these findings, the Tribunal decided to remit the matter to the Minister for reconsideration of the remaining criteria for the visa. The Tribunal noted that the applicant met criterion 3004 due to the pandemic's impact, and it was appropriate to allow the Minister to reassess the application under this criterion. The Tribunal's decision was to remit the application for a New Zealand Citizen (Family Relationship) (Temporary) (Class UP) visa for reconsideration, directing that the applicant meets the specified criterion.

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

Given the findings above, the appropriate course is for the Tribunal to remit the matter to the Minister for reconsideration of the remaining criteria for the visa.DECISION The Tribunal remits the application for a New Zealand Citizen (Family Relationship) (Temporary) (Class UP) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 461 visa:· Criterion 3004 for the purposes of cl 461.213 of Schedule 2 to the RegulationsDate of hearing: 3 February 2025

Ratio Decidendi

Legal Principle Established

For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in the present case is whether, at the time of application on 18 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 16 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 18 November 2020, 2 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 31 March 2022, the applicant responded to the Natural Justice letter and provided the following information in a written statement dated 22 March 2022: She did not intend to lodge the visa application at a time she did not hold a visa and this occurred due to a misunderstanding on her part. She made payment for the application online on 13 November 2020 and assumed this would count as having the application in on time and thought she could fill out the application form and lodge it online on that day however only then did she realise she had to send the application by post. She is a full-time working mother with 2 boys and did not have herself organised efficiently enough to make sure she had enough time. She moved to Perth 10 years ago and met her partner 9 years ago. They have 2 sons aged 4 years and 6 years and Australia is all they have ever known and is the place they call and have made home. She and her partner both work full-time and have made some wonderful friends and they have built a loving home here. Their boys attend the local school where they have each made a lot of great friends. They have joined the local rugby team and they are all enjoying becoming part of the local community. Being away from families can be a struggle but they love the life they live here and the life they have created for their 2 boys and Australia is home. She cannot think of anything worse than their family being torn apart because of a mistake she made.