Nwosu (Migration)

[2023] AATA 2251

Nwosu (Migration) [2023] AATA 2251 (22 May 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Florence Ulumma Alionye Nwosu

REPRESENTATIVE:  Ms Ngozi Iheanacho (MARN: 1805861)

CASE NUMBER:  2200128

HOME AFFAIRS REFERENCE(S):          BCC2019/2179057

MEMBER:David Crawshay

DATE:22 May 2023

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a New Zealand Citizen (Family Relationship) (Temporary) (Class UP) visa.

Statement made on 22 May 2023 at 3:43pm

CATCHWORDS
MIGRATION – New Zealand Citizen (Family Relationship) (Temporary) (Class UP) visa – Subclass 461 (New Zealand Family Relationship (Temporary)) – ‘member of the family unit’ requirement – validity of the visa application – s.56 letter – apprehended bias – role of merits review – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.12; Schedule 1, item 1214BA; Schedule 2, cl 461.212

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 to refuse to grant the applicant a New Zealand Citizen (Family Relationship) (Temporary) (Class UP) visa under s.65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 18 April 2019. The delegate refused to grant the visa on 17 December 2021 on the basis that the applicant did not satisfy the requirements of cl.461.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). Clause 461.212 of Schedule 2 requires an applicant to satisfy one of three subclauses at the time of application. The full clause is reproduced below.

3. The applicant appeared before the Tribunal on 22 May 2023 to give evidence and present arguments. The Tribunal also heard from two witnesses – Mrs Philomena Okorom, the applicant’s daughter, and Mr Cosmas Okorom, Philomena’s husband and the applicant’s son-in-law. The Tribunal hearing was conducted with the assistance of an interpreter in the Igbo and English languages. The applicant was represented in relation to the review.

4. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The issue in this review is whether the applicant satisfies one of the three alternative subclauses under cl 461.212.

6. Clause 461.212 provides as follows:

   (1)   The applicant meets the requirements of subclause (2), (3) or (4).

   (2)   An applicant meets the requirements of this subclause if the applicant is a member of the family unit of:

   (a)a person, other than an eligible New Zealand citizen, who is in Australia as the holder of a Subclass 444 (Special Category) visa; or

   (b)a person, other than an eligible New Zealand citizen, who:

   (i)is outside Australia; and

   (ii)will be accompanying the applicant to Australia; and

   (iii)will, on entry, be the holder of a special category visa.

   (3)   An applicant meets the requirements of this subclause if the applicant:

   (a)   either:

   (i)is in Australia as the holder of a Subclass 461 (New Zealand Citizen Family Relationship (Temporary)) visa; or

   (ii)is not the holder of a substantive visa and the last substantive visa held by the applicant was a Subclass 461 visa; and

   (b)   is no longer a member of the family unit of the person in relation to whom the applicant was granted a Subclass 461 visa; and

   (c)   has not become a member of the family unit of another person (whether or not the applicant is still a member of the family unit of that other person).

   (4)   An applicant meets the requirements of this subclause if the applicant:

   (a)   is outside Australia; and

   (b)   either:

   (i)the applicant was lawfully present in Australia as the holder of a Subclass 461 visa for a period of, or periods that total, not less than 2 years in the period of 5 years immediately before the application for the visa; or

   (ii)the Minister is satisfied that the applicant:

   (A)has substantial business, cultural, employment or personal ties with Australia which are of benefit to Australia; and

   (B)has not been absent from Australia for a continuous period of 5 years or more immediately before the application for the visa, unless there are compelling reasons for the absence; and

   (c)   on last departure from Australia was a holder of a Subclass 461 visa; and

   (d)   is no longer a member of the family unit of the person in relation to whom the applicant was granted a Subclass 461 visa; and

   (e)   has not become a member of the family unit of another person (whether or not the applicant is still a member of the family unit of that other person).

   Clause 461.212(2)

7. The information in front of the Tribunal, courtesy of the applicant’s visa application form which was received by the Department on 23 April 2019, is that the person with whom she claimed a family relationship for the purpose of the application is “Philomena Ngozi Okorom”. The applicant was listed as Philomena’s mother in Philomena’s Form 80 dated 15 November 2019. At hearing, the Tribunal explained to the applicant that she did not fall under any of the relationship categories under the definition of “member of the family unit” as she was not the spouse or de facto partner, dependent child, or dependent child of a dependent child of Philomena.

8. The Tribunal has considered the information in front of it. It finds that the applicant is the mother of Philomena. As such, she is not the kind of relation that is eligible under the definition of “member of the family unit” in r.1.12(2) of the Regulations. Based on these findings, the Tribunal is not satisfied that the applicant is a member of the family unit of Philomena.

9. The applicant is therefore unable to satisfy cl.461.212(2)(a) and cl.461.212(2) in its entirety.

   Clause 461.212(3)

10. There is no information to demonstrate that the applicant held a Subclass 461 visa at the time of application, and this was confirmed at hearing. She is therefore unable to satisfy cl.461.212(3)(a), which is a cumulative requirement for the satisfaction of cl.461.212(3).

    Clause 461.212(4)

11. At hearing, the applicant confirmed that she was in Australia at the time of application. Therefore, she is unable to satisfy cl.461.212(4).

12. As the applicant is unable to satisfy any of cl.461.212(2), cl.461.212(3) or cl.461.212(4), she does not satisfy cl.461.212(1).

    OTHER ISSUES

13. In pre-hearing submissions dated 18 April 2023, the applicant’s representative submitted that the Department should have notified the applicant of an “invalid application” within a reasonable period “allowing for the applicant to seek alternate migration pathways”. The representative submitted that, instead, the case officer “accepted the invalid visa application for processing then ultimately refused the visa which in turn adversely affected the applicant’s migration history”. The letter requested that the applicant’s Subclass 461 visa be declared invalid rather than it be refused and a refund of the visa application charge issued.

14. At hearing, the Tribunal took the applicant and her representative to the Schedule 1 criteria (and item 1214BA). It pointed out that subitem (1) related to the form, subitem (2) to the application charge and subitem (3) to miscellaneous requirements to do with the place of application and the procedures for secondary applicants (referred to as “person[s] claiming to be a member of the family unit”). The representative said that if the applicant did not fall within the class of people eligible for the visa in the first instance (as a member of the family unit), then the visa application should have stopped at Schedule 1 and not progressed to Schedule 2. Cosmas made a submission to similar effect.

15. The Tribunal rejects these submissions. The applicant’s visa application was lodged in accordance with the requirements under Schedule 1 of the Migration Regulations (specifically, item 1214BA) and the instrument in place at that time (IMMI 18/076). The evidence shows that the application fee was paid and the proper form was used – in this case, a Form 147 which was sent to a physical address named in the instrument. Moreover, while there is a reference to a “person claiming to be a member of the family unit”, this reference is to a secondary applicant who wishes to apply for the same visa and not to the applicant herself. The Tribunal finds that the applicant was refused under the Schedule 2 criteria, and it is not correct in these circumstances to say that the application was “invalid” under the Schedule 1 criteria.

16. The applicant’s representative made an oral submission at hearing that the Department usually provides an applicant with a s.56 letter which might alert an applicant and presumably provide an opportunity to withdraw the application. While this might be a practice that Department officials follow (although the Tribunal does not know for sure), it is not something that the Tribunal can make a valid direction about.

17. The submissions letter also asserted apprehended bias as the applicant had learnt of “numerous” family members of New Zealand citizens who were persons other than spouses, de facto partners, children or dependents of holders of Subclass 444 visas but who were granted Subclass 461 visas. In this regard, the representative alleged that there was “deferential treatment” of those other applicants based on their being families from Pacific islands and not, in this case, Nigeria.

18. In relation to the allegation of apprehended bias, which is an allegation of jurisdictional error, this should have been the subject of legal review to the Courts and not review to the Tribunal.

19. The submissions letter also alleged irrationality and a failure to take into account relevant considerations on the part of the delegate. These allegations are not particularised, but even if they were they allege jurisdictional error and as such should have been the subject of legal review and not merits review.

20. The applicant and two witnesses also spoke to their circumstances, especially those surrounding Philomena and Cosmas’ 16-year-old son who has autism. In this regard, Cosmas told the Tribunal that he is at a special needs school and is not eligible for NDIS funding. He said that the applicant has a rapport with his son. He said that if the applicant has to return home, then either he or Philomena will need to stop working.

21. Philomena told the Tribunal that she agreed with Cosmas. She said that she was the only surviving child of the applicant. She said that since the applicant had come here, she had helped her a lot by supporting her son. She said that it had been a relief and a burden off her shoulders. She said that the applicant is with her son when she and Cosmas go to work because their son cannot be left alone.

22. The applicant told the Tribunal that her life depends on her grandson, and he depends on her. She said that she assists him with his daily routine. She said that she feels good to be with him and is filled with joy and gratitude to assist him. She said that her life revolves around him, and she wants to stay with him.

23. While the Tribunal notes that these are difficult circumstances for all parties to face, with the applicant seemingly becoming a fixture in their lives in Australia, they do not form the basis for a finding that the applicant satisfies cl.461.212. Furthermore, no specific request was made of the Tribunal such as a request to refer the matter to the Minister under s.351 of the Act.

    DECISION

24. The Tribunal affirms the decision not to grant the applicant a New Zealand Citizen (Family Relationship) (Temporary) (Class UP) visa.

    David Crawshay
    Member