O'Brien (Migration)

[2022] AATA 3020

O'Brien (Migration) [2022] AATA 3020 (1 August 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Connor Michael O'Brien

REPRESENTATIVE:  Mr Paul Taekhwan Kwon (MARN: 0701575)

CASE NUMBER:  2116059

HOME AFFAIRS REFERENCE(S):          BCC2020/2778225

MEMBER:Justin Meyer

DATE:1 August 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a New Zealand Citizen Family Relationship (Temporary) (Class UP) (Subclass 461) visa.

Statement made on 1 August 2022 at 10:04am

CATCHWORDS
MIGRATION – New Zealand Citizen Family Relationship (Temporary) (Class UP) visa – Subclass 461 (New Zealand Citizen Family Relationship (Temporary)) – application made more than 12 months after last substantive visa held – child applicant born in Australia to visa holder father has never held substantive visa – not eligible for citizenship of either of father’s countries of citizenship – not eligible to join mother and sibling’s visa application because of lack of passport – no discretion to waive criterion – unintended consequences of legislation and exceptional circumstances – referred for ministerial consideration – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 65

Migration Regulations 1994 (Cth), r 1.03, Schedule 2, 461.213(b)(ii), Schedule 3, criterion 3002

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 19 October 2021 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).

2. The visa applicant applied for the visa on 1 December 2020. The delegate refused to grant the visa on the basis that (per the decision):

   “Assessment against criterion 3002

   In order to meet Schedule 3 Criterion 3002, the application must have been validly made within 12 months after the relevant day. For the purposes of this application, the relevant day is the last day the applicant held a substantive visa. Departmental records show that your last substantive visa ceased on 25 July 2018. As you ceased to hold a substantive visa more than 12 months prior to lodging this application, I have concluded you do not meet criterion 3002. To meet the requirements of subclause 461.213(b)(ii), you must satisfy each of Schedule 3 Criteria 3002, 3003, 3004 and 3005. As you fail to meet criterion 3002, I am not required to assess your application against the remaining Schedule 3 criteria.”

3. The applicant is a six year-old child and did not appear before the Tribunal’s 20 July 2022 hearing - appropriately his father, Mr Ross O’Brien, appeared to give evidence and present arguments.

4. The applicant was invited to appear before the Tribunal during the Covid-19 pandemic and the Tribunal exercised its discretion to hold the hearing by video via Teams. The Tribunal determined it was reasonable to hold a hearing in this manner, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal's objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by video. The applicant agreed to appear before the Tribunal by video. There was no indication that the applicant (i.e. as represented by his father) had any difficulty in understanding and responding to the questions being put to him during the video hearing. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

5. The applicant was represented in relation to the review.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. In written submissions and in oral testimony, the applicant’s father explained to the Tribunal the circumstances by which he arrived in Australia.

   ·The applicant was born in Australian and is a member of the family unit of Ross Craigg O'Brien, his father, a New Zealand citizen who is in Australia as a holder of a Subclass 444 visa and is not an eligible New Zealand citizen as defined in regulation 1.03 of the Regulations.

   ·The applicant's birth certificate was supplied.

   ·The applicant is onshore without a substantive visa. The applicant did not have passport until early in 2018.

   ·The applicant’s father lodged New Zealand citizenship and passport by descent for Connor O'Brien which was refused due to Mr Ross not meeting the 'New Zealand Parent' requirement.

   ·The applicant has lived in Australia without a visa because of factors beyond his family’s control.

   ·It was accepted by the applicant’s father that the applicant does not meet criterion 3002 and that Subclause 461.213(b)(ii) is not met.

   ·The applicant’s mother and sister were granted Subclass 461 visas.

   ·The applicant did not hold a passport. He had issues in obtaining a South African passport on the strength of the dual South African / New Zealand nationality of his father. He was to receive a South African passport, but an error was made and he is not so entitled.

   ·The applicant applied for New Zealand citizenship as well, but this was refused. This was because he and his father are not resident in New Zealand. 

   ·The applicant was unable able to join with his mother’s and sister’s earlier, successful application for 461 visas because of his lack of a passport.

   ·The delegate is in error by writing in the decision:

   “Departmental records show that your last substantive visa ceased on 25 July 2018. As you ceased to hold a substantive visa more than 12 months prior to lodging this application, I have concluded you do not meet criterion 3002.

   The applicant’s father confirmed that there was no substantive visa ever held and this appears to be a reference to separate subclass 461 applications made by his wife and daughter.

8. The Tribunal has sympathy for the applicant and his family in the situation they face. There is reason to conclude that the applicant only fails to meet the criteria because he was born in a different time and place to his sibling and was not able to apply within 12 months of holding a substantive visa. 

9. There is possibly a perverse result in this case where, by virtue of being born in Australia to non-Australian parents and not having ever held a substantive visa, the regulations do not facilitate the applicant’s having an ongoing right to live with his family who do have such a right. This does not appear to be the intention of the legislation or regulations.   

10. The Tribunal does not have any discretion to waive the criterion 3002 of cl.461.213 that requires the application must have been made validly within 12 months after the relevant day: being the last day the applicant held a substantive visa.

11. The applicant does not meet criterion 3002 of cl.461.213 of the Regulations. There is no avenue available for waiver of this criterion.

    Ministerial Intervention

12. The Tribunal refers this matter to the Minister on the basis of potential unique and exceptional circumstances in the applicant's case, in particular, that the application of relevant legislation leads to unreasonable results, as described above, and compassionate circumstances, that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship.

    decision

13. The Tribunal affirms the decision not to grant the applicant a New Zealand Citizen Family Relationship (Temporary) (Class UP) (Subclass 461) visa.

    Justin Meyer
    Member