Reid (Migration)

[2024] AATA 903

Reid (Migration) [2024] AATA 903 (18 April 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Christopher Alan William Reid

CASE NUMBER:  1918064

HOME AFFAIRS REFERENCE(S):          N93/007769 N93/7769

MEMBER:Ann Duffield

DATE:18 April 2024

PLACE OF DECISION:  Canberra

DECISION:The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.

Statement made on 18 April 2024 at 9:53am

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Spouse) – genuine and continuing relationship – sponsored by first wife – very long period as unlawful non-citizen – not correctly notified of visa refusal decision, so now considered not unlawful – relationship ceased before delegate’s decision, one other relationship and Australian citizen child, then current relationship and marriage – unaware of visa status, with no approach to department – specialised business in rural area – possibility of applying for ministerial intervention – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1993 (Cth), Schedule 2, cl 820.721(2)(b)
Migration Regulations 1994 (Cth), Schedule 2, cls 820.211, 820.221

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 Immigration and Border Protection on 24 February 1997 to refuse to grant the visa applicant a Partner (Temporary) (Class UK) Subclass 820 visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicant applied for the visa on 21 January 1994. The delegate refused to grant the visa on the basis that the applicant did not meet cl.820.721(2)(b) of the Migration Act (1958 and Migration regulations (1993) that was in force at the time of application. This clause required that the marriage between the applicant and the nominator (sponsor) was genuine and continuing.

3. The matter is before the Tribunal some 30 years after the application because the applicant was not correctly notified of the delegate’s decision to refuse the application on 24 February 1997, until the error was discovered in 2019.

4. On 27 June 2019 the Department wrote to the applicant informing him properly of the decision to refuse his application and that he could apply to have that decision reviewed by the Tribunal. The applicant lodged his application for review on 5 July 2019.

5. The applicant appeared before the Tribunal on 16 April 2024 to give evidence and present arguments.

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

   BACKGROUND

7. The applicant is a citizen of Northern Ireland born in September 1971. He arrived in Australia on 21 July 1993 on a Subclass UA680 visa. He married Australian citizen Emiear McGlinchy, whom he met in Ireland in 1992, in Australia in 1993. Ms McGlinchy sponsored the applicant for a subclass 820/801 partner visa in January 1994. The application was refused in February 1997 because the delegate did not have enough evidence of the relationship between the applicant and the sponsor to be satisfied that their marriage was genuine and continuing. The applicant remained on a Bridging Visa in relation to that application until 31 March 1997

8. The applicant remained living and working in Australia unlawfully until June 2019 when he was notified that he had been incorrectly notified. As such he was no longer considered unlawful and was able to lodge an application for a review of the delegate’s decision with the Tribunal.

   Requirements of the visa

9. The question before the Tribunal is whether the applicant was the spouse of the sponsor at time of application and the time of this decision.

10. At the time of application, the criteria that needed to be satisfied are contained in the Migration (1993) Regulations which were in force until 31 January 1993.

    820.72 Criteria to be satisfied at time of application (entry permit—after entry)

    820.721 (1) The applicant

    (a) is not the holder of a Class 771 (transit) entry permit; and

    (b) satisfies the requirements of subclause (2), (3), (4), (5) or (6).

    (2) An applicant satisfies the requirements of this subclause if:

    (a) the applicant is the spouse of an Australian citizen or an Australian permanent resident; and

    (b) the marital relationship between the applicant and the Australian citizen or Australian permanent resident referred to in paragraph (a) is both genuine and continuing; and

    (c) the applicant is nominated by that Australian citizen or Australian permanent resident; and

    (d) in the case of an applicant who is an illegal entrant:

    (i) either:

    (A) before becoming an illegal entrant, the applicant entered Australia as a prescribed exempt non-citizen; and

    (B) he or she satisfies illegal entrant criteria 6002 and 6004; or

    (ii) he or she satisfies illegal entrant criteria 6001, 6002, 6003 and 6005.

11. The delegate’s finding was as follows:

    The applicant claimed to be in a marital relationship with the nominator, Ms Eimear
    Mary Francis McGLINCHEY. The only evidence of co-habitation provided with
    the application was a non-certified photocopy of marriage certificate. Mr Reid was
    invited on several occasions - 08/02/96, 22/03/96 and 22/01/97 - to provide further
    information to substantiate the nature to the relationship between himself and the
    nominator. However, Mr Reid has not responded to date. I therefore am unable to
    establish if at time of application, the applicant and nominator have a mutual
    commitment to a shared life as husband and wife to the exclusion of others. I am
    not satisfied that spouse relationship between Mr Reid and the nominator, Ms McGlinchey, was/is genuine and continuing.

    Information before the Tribunal

12. The Tribunal has before it a copy of the Department’s file along with the delegate’s decision provided to the Tribunal by the applicant.

13. The Tribunal wrote to the applicant inviting him to provide submissions and information to support his application and invited him to a hearing. Prior to the scheduled hearing the applicant provided some detailed information and documentation including statements of support from friends and colleagues, including the following timeline of events after his arrival in Australia:

    1992 I meet Emiear McGlinchy, being Catholic and myself a Protestant, we could not live inBelfast without fear of reprisals.
    1993 Arrived in Australia and married Eimear later that year. Worked at MLC centre, Sydney
    1994 Separation from Emiear, met Lisa Wardle. Worked at Mike Lyon Photography
    1995 Sam born
    1996 Started work at Phototechnia, met Glenys Jones
    1998 Separated from Lisa, lived nearby.
    1999, December left Phototechnia
    2000, January became self employed as Blanco Negro Darkroom, started dating Glenys Jones
    2001 Moved to Sydney and lived with Glenys.
    2017 Relocated business to Laguna, NSW.
    2019 Contacted immigration Lawyer, D’Ambra Murphy Lawyers

14. The applicant has explained, in a submission to the Tribunal that his relationship with his sponsor ended sometime in 1994 and he began another relationship with a woman named Lisa and they had a son together. Lisa and the applicant separated in 1998 but continued to raise their son together. He said that all the documentation in relation to the sponsorship was managed by Emiear and he had an expectation that she would notify him of any developments and send him any correspondence. The applicant claims that he was distracted by parenthood and did not follow up with Emiear.

15. In 2000 the applicant began a relationship with Glenys Jones, and they moved in together. They were married in 2009 and have remained together for 24 years. They moved to rural Laguna in 2017 where the applicant relocated his black and white photo developing business serving a specialist and niche market which is in high demand. It is the only business of its type in Australia and the applicant is recognised for this.

    Tribunal hearing

16. The applicant confirmed with the Tribunal that he and his original sponsor were no longer married and were not at the time of the delegate’s decision in 1997. He has since remarried Ms Jones, and they have been together for 24 years. They have been living in rural Laguna since 2017.

17. The applicant explained that he has never received any notifications from the Department of Immigration in relation to his visa status. He stated that he was aware his visa status may be problematic but was afraid of what would happen if he approached the department. Over the years he has provided financially for his Australian citizen son and wife and did not want to disrupt their lives.

18. However, he approached a lawyer in 2019 and sought their advice. The lawyer lodged an FOI request and obtained the departments files where it was discovered that he did not have a visa. After the department made its own inquiries, it was discovered that the notification of the original decision in 1997 was SREY affected, and this allowed the department to re-notify the applicant of the decision. This in turn allowed him to lodge an appeal of that decision with the Tribunal. The effect of this means that the applicant has remained lawfully in Australia since his arrival in 1993.

19. The Tribunal put to the applicant the requirements of the visa at the time of application and informed the applicant that by his own evidence he and his sponsor at the time had separated in 1994 and he had entered another relationship and had a son by the time of the Delegate’s decision in 1997. The Tribunal put to him that the requirements of the visa were that he and his sponsor were in a genuine and continuing relationship at the time of the delegates decision. The Tribunal put to his that he therefore did not meet the requirements of cl.820.721(2)(b) which was in force at the time of application.

20. As such, the Tribunal told the applicant that he could not meet the criteria at clause 820.211 and clause 820.221 which are the relevant requirements at the time of this decision. Those requirements are that the applicant remains in a genuine and continuing relationship with the sponsor at the time of the Tribunal’s decision (unless he met any of the exceptions, which he did not claim).

21. The applicant indicated that he had been informed that would likely be the outcome and his lawyer would discuss the options with him after they received the Tribunal’s decision. The Tribunal indicated that should he decide to ask the Minister to intervene, it would be supportive of that request as he has been living lawfully in Australia for 30 years. He has a specialist business in rural Australia and been in a long-term marriage of over 24 years with an Australian citizen. He has an Australian citizen son, and it would be unreasonable and damaging to his business, his family and himself, to require him to depart Australia.

    CONCLUSION

22. For the reasons above, the applicant does not satisfy the criteria for the grant of the visa.

    DECISION

23. The Tribunal affirms the decisions not to grant the applicant a Partner (Temporary) (Class UK) visa.

    Ann Duffield
    Senior Member