Overy (Migration)

Overy (Migration) [2020] AATA 6107 (18 March 2020)
CORRIGENDUM
DIVISION:Migration & Refugee Division
APPLICANT:  Ms Moriin Moaniba Overy
CASE NUMBER:  1933150
DIBP REFERENCE(S):  BCC2018/1511203
MEMBER:Christine Kannis
DATE OF DECISION:  18 March 2020
DATE CORRIGENDUM
SIGNED:26 June 2020
PLACE OF DECISION:  Perth
AMENDMENT:  The following corrections are made to the original Decision Record:

Paragraph 5 is deleted and the following paragraph is inserted:
For the following reasons, the Tribunal has concluded that the decision under review is affirmed.

Paragraph 20, lines 1 and 4 state “criterion 3000(c)” and these references are to be deleted and replaced with “criterion 3004(c)”.

Paragraph 23, the final line states “criterion 3000(c)” and this reference is to be deleted and replaced with “criterion 3004(c)”.

Paragraph 24, line 7 states “criterion 3000(d)” and this reference is to be deleted and replaced with “criterion 3004(d)”.

Paragraph 24, line 8 states “criteria 3000(e) to 3000(h)” and this reference is to be deleted and replaced with “criteria 3004(e) to 3004(h)”.

Paragraph 25, line 4 states “criterion 3000(c)” and this reference is to be deleted and replaced with “criterion 3004(c)”.

Christine Kannis
Member

DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ms Moriin Moaniba Overy
CASE NUMBER:  1933150
DIBP REFERENCE(S):  BCC2018/1511203
MEMBER:Christine Kannis
DATE:18 March 2020
PLACE OF DECISION:  Perth
DECISION:The Tribunal affirms the decision to refuse to grant the visa applicant a New Zealand Citizen (Family Relationship)(Temporary)(Class UP) subclass 461 visa.
Statement made on 18 March 2020 at 7:00am

CATCHWORDS
MIGRATION – New Zealand Citizen (Family Relationship) (Temporary) (Class UP) visa – Subclass 461 New Zealand Citizen Family Relationship (Temporary) – late application for further visa – family health issues – potential separation from Australian children – factors beyond the applicant’s control – decision under review affirmed
LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2 cl 461.213; Schedule 3
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 Immigration on 16 November 2019 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.
The applicant applied for the visa on 29 March 2018. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.461.213 (b)(ii). That provision requires the applicant to satisfy Schedule 3 criteria 3002, 3003, 3004 and 3005. The delegate found the applicant failed to meet criterion 3004 and therefore did not consider criteria 3002, 3003 and 3005.
A copy of the Decision Record was submitted to the Tribunal by the applicant for the purposes of the review.
The applicant appeared before the Tribunal on 24 February 2020 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s husband, Mr Justin Munro and her sister-in-law, Ms Emma Overy.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
It is not in dispute that the applicant did not have a substantive visa at the time of application. The Tribunal accepts that the last substantive visa she held was a Subclass 461 visa, and she meets cl.461.213(b)(i). The issue in the present case is whether she satisfies Schedule 3 criterion 3004 for the purpose of cl.461.213.
Schedule 3 criterion 3004 requires that if the applicant:
(a)  ceased to hold a substantive or criminal justice visa on or after 1 September 1994; or
(b) entered Australia unlawfully on or after 1 September 1994 and has not subsequently been granted a substantive visa;
the Minister is satisfied that:
(c)  the applicant is not the holder of a substantive visa because of factors beyond the applicant's control; and
(d)  there are compelling reasons for granting the visa; and
(e)  the applicant has complied substantially with:
(i)  the conditions that apply or applied to:
(A)  the last of any entry permits held by the applicant (other than a condition of which the applicant was in breach solely because of the expiry of the entry permit); and
(B)  any subsequent bridging visa; or
(ii)  the conditions that apply or applied to:
(A)  the last of any substantive visas held by the applicant (other than a condition of which the applicant was in breach solely because the visa ceased to be in effect); and
(B)  any subsequent bridging visa; and
(f)  either:
(i)  in the case of an applicant referred to in paragraph (a) — the applicant would have been entitled to be granted a visa of the class applied for if the applicant had applied for the visa on the day when the applicant last held a substantive or criminal justice visa; or
(ii)  in the case of an applicant referred to in paragraph (b) — the applicant would have satisfied the criteria (other than any Schedule 3 criteria) for the grant of a visa of the class applied for on the day when the applicant last entered Australia unlawfully; and
(g)  the applicant intends to comply with any conditions subject to which the visa is granted; and
(h)  if the last visa (if any) held by the applicant was a transitional (temporary) visa, that visa was not subject to a condition that the holder would not, after entering Australia, be entitled to be granted an entry permit, or a further entry permit, while the holder remained in Australia.
The applicant arrived in Australia on 30 November 2007 as the holder of a New Zealand Citizen (Family Relationship) (Temporary) (Class UP) Subclass 461 visa, granted on 18 October 2007 and valid until 18 October 2012. She lodged a further application for a New Zealand Citizen (Family Relationship) (Temporary) (Class UP) Subclass 461 visa on 10 October 2012. On 7 February 2013 her second New Zealand Citizen (Family Relationship) (Temporary) (Class UP) Subclass 461 visa was granted and valid until 7 February 2018.
The applicant lodged a further application for a New Zealand Citizen (Family Relationship) (Temporary) (Class UP) Subclass 461 visa (the present application) on 29 March 2018, after the expiry of her previous visa. That application for a visa was refused and is the subject of this review.
Following the refusal of the visa the applicant provided information with respect to the reason for her late application. On 28 October 2018 she advised that the reason was an oversight on her part and she believed her visa was valid until the end of 2018. On 28 November 2019 the applicant provided the following information:
I try my best to keep my family’s lives running smoothly. This has, at times come at a cost and while I am privileged to be a stay at home mum, it has caused me to feel severe anxiety within myself while trying to manage the needs of everyone I care for.
2017 to 2018 was a trying time for our family. We offered extended family financial assistance and while this is not regretted, it did add to our stress load. In late 2017 I was also helping my brother, who was battling health problems, with childcare for my nephews so he and his wife could concentrate on lawyer and doctor’s appointments and recovery from his subsequent surgery in Dec 2017.
During this time through to early 2018 my husband was between full-time work. He was away a lot doing Shutdowns and I was at home trying to find him secure, full-time employment. Our eldest son was entering his final year of high school and I was looking into his higher education options. The only feasible option we found at the time was for him to attend University in New Zealand. This added to my anxiety and impacted my son’s concern for his future. He ultimately decided to stay in Perth and work this year. He has now applied for an Electrician Pre-App course at TAFE. Our eldest is having her first child next year which is a beautiful gift. Nothing would mean more to me than to remain here and meet my first grandchild. Our youngest is 8 and is understandably devastated with the fact that I may need to leave our home.
I take full responsibility for my mistake and I would ask that you remember life is, at times messy and important things can be overlooked. As mothers we try and take care of everyone and can neglect to take care of ourselves. It has been a very hard lesson for me. The past, near on 2 years of waiting to see if I would have my Visa granted has forced me to be honest about my mental health and the impact that juggling everyone’s needs has had on me. I am now open and honest about my struggles with my family and am grateful they have been so supportive.
I love it here, and I need to be with my family. They need me too.
The applicant told the Tribunal that when she applied for her second visa in 2012 she had just suffered a miscarriage and that time in her life is a blur. She said she probably thought her next application also had to be made around October 2018 and she did not take note that she was required to make the application by 7 February 2018.
The applicant said that since her miscarriage she has suffered from depression. When asked whether she has sought medical assistance for her depression the applicant said she has been too scared to talk to a doctor about her mental health in case it is recorded and used to adversely affect her visa applications. She told the Tribunal that since late 2018 she has talked to her husband and her family to help her through her mental health issues. She said her symptoms include becoming panicky, tightness in her belly, dry throat and headaches.
The applicant said in early 2018 she was experiencing depression and anxiety. Her husband was in and out of work and was not earning enough to cover their living expenses and they lived off credit cards for a period. She said she looked for employment for him on a daily basis and regularly updated his curriculum vitae. She said her elder son had just commenced his final year of high school and he wasn’t sure if he wanted to go on and study at a tertiary level. The applicant said she and her husband could not afford to support him through tertiary studies in Australia and they were considering sending him to New Zealand to study. This was stressful for her because her son did not want to leave Australia.
The applicant told the Tribunal that in 2017 and 2018 her brother was involved in Workers Compensation proceedings arising out of a workplace accident in which he was injured and required surgery. She said in 2017 and 2018 she looked after her brother’s children when he and his partner had to attend legal and medical appointments. This occurred at least once a week. She said she was worried about her brother’s financial and marital circumstances at this time.
The applicant said she tends to take on other people’s problems and tries to help if she can. Ms Emma Overy told the Tribunal that in 2017 and 2018 a lot of the family problems fell on the applicant’s shoulders. She said the applicant goes out of her way to help others in need.
The applicant told the Tribunal that her husband travelled to Australia in 2006 for work reasons. In 2007 she and their two eldest children arrived in Australia. Their youngest child was born in Australia. The children are currently aged 23, 19 and 9. They all live with the applicant and her husband. Her 23 year old daughter’s first child (and the applicant’s first grandchild) is due in June 2020. Her elder son will commence at TAFE in June 2020 and her youngest school is in primary school. She said if she is required to depart Australia temporarily her 9 year old son will remain in Australia. He has never lived apart from the applicant. The applicant’s husband is a FIFO worker (20 on 8 off) and therefore he would not always be available to look after the child.
The applicant told the Tribunal that her husband and two elder children hold Special Category visas granted to New Zealand citizens.
Mr Overy and Ms Emma Overy both gave evidence that it would be devastating for the family if the applicant is required to depart Australia temporarily to make an offshore visa application. Mr Overy said the applicant takes care of everything for the family.
Following the hearing the applicant provided a written submission in which she provided further information with respect to the anxiety and depression she has suffered since late 2012 and difficulties she and her family experienced in 2016, 2017 and 2018. She said during the 2017-2018 period she was struggling. She was not sleeping and stayed at home a lot. She said the phone call advising that she had not lodged her visa renewal was a wakeup call because she would never forget something so important. The applicant also said, as she did at hearing, that her youngest son would be devastated if they are separated.
Criterion 3000(c) requires that the applicant is not the holder of a substantive visa because of factors beyond her control. The Tribunal has had regard to government policy guidelines contained in the Department’s Procedures Advice Manual (PAM3). The guidelines state that to meet criterion 3000(c) 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 a person without a substantive visa.
In relation to the meaning of “beyond the applicant’s control” PAM3 says:
…claimed misunderstandings relating to when a visa is in effect or to the conditions attached to a visa should be considered on a case by case basis. It is reasonable to assume that a visa holder is aware of the period covered by the visa and the conditions attached to the visa unless there is evidence to the contrary. An example of when there would be evidence to the contrary is when file records indicate that incorrect advice was given by the department.
The Tribunal accepts that the applicant believed she was not required to lodge an application for a further visa until October 2018. The Tribunal notes her previous Subclass 461 visa was granted in October 2007 and ceased in October 2012. The Tribunal accepts the applicant’s evidence that she suffered depression after her miscarriage and that financial and family stressors have contributed to her ongoing depression and anxiety since that time. The applicant did not provide medical evidence relating to her depression and anxiety however the Tribunal considered her to be a credible witness and accepts her evidence in this regard.
The Tribunal accepts that the applicant’s mental health was affected by financial and family stressors in 2017 and 2018. However the applicant’s mental health was not the reason she ceased to hold a substantive visa. The reason was that she incorrectly believed that her second New Zealand Citizen (Family Relationship) (Temporary) (Class UP) Subclass 461 visa was valid until October 2018. The applicant’s evidence was that in early 2018 she was looking for work for her husband, updating his curriculum vitae and looking into tertiary study options for her elder son. This demonstrates that her mental health issues did not preclude her from attending to paperwork and making enquiries. The Tribunal finds that the applicant’s oversight of the cessation date of her visa is not a factor beyond her control. As such the applicant does not meet criterion 3000(c).
In considering whether there are compelling reasons to grant the visa the Tribunal takes into account the likely consequences of not granting the visa which include the separation of the applicant from her 9 year old son. The Tribunal also takes into account that the applicant’s first grandchild is due in June 2020. The Tribunal accepts the evidence of the two witnesses that the applicant’s departure from Australia would be devastating for the family. The Tribunal therefore considers there are sufficiently compelling reasons for the granting of the visa and that the applicant meets criterion 3000(d). On the basis of the information provided the Tribunal is also satisfied that the applicant also meets criteria 3000(e) to 3000(h).
As discussed at hearing, the Tribunal has no discretion to waive individual elements of criterion 3004 and the criterion requires that the applicant meet each of the conditions (a) through to (h). Whilst the Tribunal has considerable sympathy for the applicant, she does not meet criterion 3000(c) and therefore does not meet Schedule 3 criterion 3004. Accordingly she does not meet cl.461.213.
DECISION
The Tribunal affirms the decision to refuse to grant the visa applicant a New Zealand Citizen (Family Relationship)(Temporary)(Class UP) subclass 461 visa.
Christine Kannis
Member

[2020] AATA 6107

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Procedural Fairness