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 applicant’s partner, Mr Tame Whata.
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.
On 31 March 2022 the applicant also provided a 461 receipt dated 13 November 2020 and 8 photographs of her family including her partner and 2 sons.
Evidence provided prior to the hearing
The applicant provided the following character reference from Mrs McKenzie Pugh, Physical Education Teacher and Sport Coordinator, at Christ Church Grammar School:
I am writing this letter to sincerely support the visa application of Claire Murphy and her partner, Tame. I have had the privilege of knowing Claire and Tum for over six years, during which they have become invaluable members of our community here in Perth. They have clearly made this city their home, and their positive contributions to the local area are evident in many aspects of their daily lives.
Claire and Tum are both involved in the local rugby club, Wests Scarborough Rugby Union Club, where their commitment and enthusiasm shine through. Tum is the coach and umpire of the boys' rugby team, a role he takes on with dedication and passion. His ability to connect with the children have had a notably positive impact, fostering not only their rugby skills but also their sense of teamwork and sportsmanship. Claire is equally engaged, supporting the club by assisting with team management, cooking on the barbecue, and contributing her time and efforts wherever needed. Their involvement has been a key part of the club’s success and a reflection of their dedication to our community.
In addition to their contributions to the rugby club, Claire and Tum have shown themselves to be caring, dependable friends and neighbours. Their two boys attend Doubleview Primary School with my sons, and our families have developed a close bond through shared activities and mutual support. Claire and Tum are always willing to help me with my boys, regularly looking after them and ensuring they get to and from school safely. Their generosity and kindness have made a significant difference to my family, and I am deeply grateful for their ongoing support.
It is evident that Claire and Tum have embraced life in Perth wholeheartedly. They are active members of the community who consistently demonstrate kindness, commitment, and a strong work ethic. I believe their continued presence will have a positive impact, and I am confident they will remain involved and supportive members of the local community.
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 16 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 applicant told the Tribunal that she was not able to lodge the application for the Subclass 416 visa because of factors beyond her control. She said she paid the lodgement fee online on 13 November 2020 and assumed she could also upload the visa application online. When she discovered she was incorrect and that a physical visa application was required she went to her local post office on the following day, 14 November 2020. She told the Tribunal that she paid for Express Post which the post office advised meant that in normal circumstances the item would be delivered within 48 hours. The post office advised that at that time however they could not guarantee delivery due to delays arising from the COVID-19 pandemic.
The applicant told the Tribunal that she came to Australia 14 years ago and she and her partner have been together for 13 years. They have two sons aged 9 years and 7 years. Their children were born here and have only lived in Australia. They attend the local primary school and are involved in soccer and rugby. The applicant said the boys have an amazing group of friends.
The applicant told the Tribunal and she and her partner both work full-time and said they also have a good group of friends.
When the Tribunal asked the applicant what would happen if the visa were refused and she has to depart Australia, she said her partner and their sons would remain in Australia while she applies for a visa offshore. She said she would return to Ireland. She has not been back to Ireland for at least 7 years.
Mr Whata asked the Tribunal to consider keeping his family together.
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 31 March 2022, the applicant advised the Department that she was late in submitting her visa application because she made an incorrect assumption that she could lodge her visa application online. The Tribunal accepts that the applicant’s delay in submitting her application was unintentional and a mistake. Nonetheless, it is the applicant’s responsibility to be aware of the expiration date of her visa and to lodge a further visa whilst holding a substantive visa to regularise and maintain a lawful migration status in Australia. The Tribunal places little weight on this oral assertion and does not regard this as a factor beyond the applicant’s control.
The Tribunal notes that a paper application was required and that the applicant posted the application on 14 November 2020. The applicant said she paid for Express Post and was advised that this meant delivery would be within 48 hours. The Tribunal notes that Australia Post information regarding delivery indicates Express Post is delivered in 1 to 2 business days.
It is clear the applicant undertook some effort to ensure that her visa application was lodged prior to the expiry of her substantive visa, sending it by Express Post rather than ordinary mail. Although the applicant sent the application on 14 November 2020 it was not guaranteed that the postal article would be delivered within 48 hours due to delays arising from the COVID-19. Although an argument could be made that the applicant should have given herself more time in applying for the visa to avoid a delay arising in the first instance, the Tribunal accepts that the delays brought about by the pandemic were beyond the applicant’s control.
In the circumstances of the present case, having considered all the evidence that is before it, the Tribunal is satisfied that the applicant is not the holder of a substantive visa because of factors beyond her control criterion 3004(c) is met.
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 Mr Whata gave credible oral evidence about their relationship and the consequences for their children if the applicant is required to depart Australia. The Tribunal finds there are reasons in this case which are forceful, convincing and which involve moral necessity including that it is in the best interests of the children that they remain living in the same country with both their parents. Accordingly, the Tribunal is satisfied that there are compelling reasons in this case. The Tribunal has considered the likely consequences of not granting the visa on the applicant’s children and finds that, in the circumstances of the present case, there are compelling reasons for granting the visa. The Tribunal is therefore satisfied that there are compelling reasons for granting the visa as provided for in criterion 3004(d).

Criterion 3004(e) requires that the applicant has complied substantially with the conditions of previous substantive or bridging visas. There is no evidence before the Tribunal that the applicant has not complied with the conditions of previous substantive or bridging visas. The Tribunal is satisfied the applicant meets the requirement that she has complied with the conditions of previously held visas.
Criterion 3004(f) requires that the applicant would have been entitled to be granted the visa applied for. The applicant is a person referred to in criterion 3004 (a), and based on the evidence before it, the Tribunal is satisfied that if the applicant had applied for the visa when the holder of a substantive visa, she would have been entitled to the grant of the visa.
Criterion 3004(g) requires that the applicant intends to comply with the conditions to which the visa will be subject. Based on the applicant’s submissions, the Tribunal is satisfied the applicant meets this requirement.
Criterion 3004(h) requires that if the last visa held by the applicant was a temporary visa, it was not subject to a condition that the holder not be entitled to a further entry permit. The last substantive visa was not subject to this condition so criterion 3004 (h) does not apply.
For the above reasons the Tribunal is satisfied that the applicant either meets the requirements of criterion 3004(a) to (h), or they do not apply. Therefore, the applicant meets the requirements of criterion 3004 for the purposes of cl 461.213.
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 Regulations
Date of hearing: 3 February 2025