Sanele (Migration)

[2017] AATA 2721

Sanele (Migration) [2017] AATA 2721 (28 November 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Petero Sanele

CASE NUMBER:  1707274

DIBP REFERENCE(S):  Client ID 94227085920

MEMBER:Kira Raif

DATE:28 November 2017

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Transitional (Permanent) visa in Class 812.

Statement made on 28 November 2017 at 7:31am

CATCHWORDS
Migration – Transitional (Permanent) Visa – Subclass 812 – Decision under review made under the Migration Act1958 – AAT has jurisdiction to review the matter – No permanent entry permit

LEGISLATION
Migration Act 1958 ss 65, 351
Migration Regulations 1989 r 131
Migration Reform (Transitional Provisions) Regulations 1994 rr 3, 23(2), 23(3), 32, 131, Schedule 2 cls 154.431, 812.731, 812.723, 812.732, 812.723(3), 812.723(4), 812.723(5), 812.723(6), 829.421, 829.421(a)-(b), 812.723(2)

CASES

Kim Sang Keun v MIEA [1995] FCA 1586

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 on 4 April 2017 to refuse to grant the visa applicant a Transitional Permanent Visa Subclass 812 visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant is a national of Fiji, born in June 1954. The visa applicant applied for the visa on 28 October 1993. The delegate refused to grant the visa because the applicant did not meet the key criteria in any relevant subclass. The applicant seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal on 6 September 2017 and 23 November 2017 to give evidence and present arguments. The Tribunal hearings were conducted with the assistance of an interpreter in the Fijian and English languages. The applicant was represented in relation to the review. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   Relevant law

4. On 1 September, the 1993 Regulations were replaced by the Migration Regulations 1994. Under r.23(2) of the Migration Reform (Transitional Provisions) Regulations 1994 (the Transitional Regulations), an application for a temporary entry permit or a permanent entry permit made on or after 19 December 1989 and before 1 September 1994, and not finally determined before that date is taken, on that date, to be an application for a transitional (temporary) visa or a transitional (permanent) visa respectively. Pursuant to r.23(3) of the Transitional Regulations, such an application is to be decided according to the criteria that applied to the entry permit for which application was made.

   Does the applicant meet the requirements for the grant of the visa or an entry permit?

5. The applicant provided to the Tribunal a copy of the primary decision record, which sets out the background to this application and provides information about the visas and permits held by the applicant when he made the application for the visa.

6. In oral evidence to the Tribunal the applicant stated that he held a Tourist visa when he made the present visa application.

7. Clause 812.731 requires the applicant to hold a ‘s. 47 temporary entry permit’. According to the primary decision record, the applicant did not hold a s. 47 temporary entry permit or its transitional equivalent.

8. In his written submission to the Tribunal the applicant’s representative argues that r.32 of the Migration Reform (Transitional Provisions) Regulations 1994 removes the requirement for a review authority to consider whether the applicant holds a section 47 entry permit at the time of decision per cl.812.731 that. This appears to be correct.

9. Regulation 32 applies where a review authority is reviewing a decision to refuse a visa for which the application was constituted by an application for an entry permit. The decision under review, made in 2017, was is reviewable by the AAT under Part 5 of the Migration Act 1958. The Migration Reform (Transitional Provisions) Regulations 1994 define review authority at r.3 as ‘any Officer or Tribunal (other than the Administrative Appeals Tribunal) having the function of reviewing the merits of a decision that relates to a visa or entry permit’. However, to give this wording its literal meaning would lead to an absurd result of there being no relevant authority. On a purposive view, and in light of the statutory context which r.32 of the MR(TP) Regulations was made, it would seem appropriate to omit reference to ‘other than the AAT’. Reference to ‘Tribunal’ should be read as including the current Migration and Refugee Division of the AAT due to subsequent legislative amendments. As such, the requirement in cl.812.731 that the applicant holds a section 47 entry permit at the time of decision does not apply to the current review.

10. There is no evidence that he applicant was in a married relationship that was both genuine and continuing that began on or before 15 October 1990. The applicant told the Tribunal that he did have such a relationship but it no longer continues. Even if the applicant did meet r. 812.723(2), he does not continue to meet that provision for the purpose of r. 812.723. The applicant told the Tribunal he was not a dependent child and he does not meet r. 812.723(3). The applicant told the Tribunal he has no children in Australia for the purpose of the balance of family test. He does not meet r 812.723(4). The applicant confirmed in his evidence to the Tribunal that he was not an aged dependent relative, an orphan relative, a special need relative or a remaining relative visa. There is no evidence that the applicant meets any of these criteria. The Tribunal is not satisfied the applicant meets r 812.723(5). The applicant told the Tribunal that there are no Australian citizens or permanent residents who would be affected by the grant of the visa. The applicant’s representative submits that the applicant was in a relationship with an Australian citizen from 1987 and was in a relationship by October 1990. The representative submits that at that time, there were compassionate grounds. The Tribunal is of the view that the existence of a relationship in itself does not establish the existence of ‘extreme hardship or irreparable prejudice’ to an Australian citizen or permanent resident. Something more is required to show extreme hardship or irreparable prejudice (hence the distinction between r. 812.723(1) and r. 812.723(6) and the applicant has provided no evidence to the Tribunal to satisfy the Tribunal that such circumstances existed. Further, the applicant’s evidence to the Tribunal is that his relationship with his partner ended around 1994, well before the decision was made in this case. There is nothing to suggest the applicant continues to meet that criterion for the purpose of r. 812.732. The Tribunal Is not satisfied that the applicant meets r. 812.723 and r. 812.732.

11. Clause 829.421 required the applicant to be the holder of a Class 829 entry permit or of a processing entry permit, number 825. The applicant’s representative argues in his written submission to the Tribunal that the applicant is taken to have held the Class 829 visa due to the operation of the Transitional provisions. The Tribunal does not accept that this is so.

12. Clause 829.421 requires that at the time of application in April 1989 the applicant was the holder of (a) a Class 829 entry permit or (b) a Processing Entry Permit (code number (825)). A decision was not made on the application for a processing entry permit (825) until April 2013. As such, the applicant was not a holder of this permit on 28 October 1993 as a decision was not yet made on the application at this date. The representative submits that the applicant was deemed to have been granted a Processing Entry Permit due to the significant delay in making a decision on the application.  The applicant relies on the judgment in Kim Sang Keun v MIEA [1995] FCA 1586. Regulation 131 of the Migration Regulations 1989 prescribes the criteria for a Processing Entry Permit and does not allow for deemed grant of such permits. There is no evidence referred to in the submissions that suggest the applicant was in fact the holder of such a permit at the time of application and there is no provision to deem the grant of the visa merely on the basis of processing delay. For that reason, cl.829.421(b) is not satisfied.

13. According to the primary decision record, the applicant did not hold any entry permit or the transitional equivalent of an entry permit and he does not meet cl. 829.421. The Tribunal is not satisfied the applicant met cl.829.421(a) by holding a Class 829 entry permit at the time of application.

14. Clause 154.431 required the applicant to hold a permanent entry permit. According to the information in the primary decision record, the applicant did not hold a permanent entry permit or its transitional equivalent. The applicant does not meet cl. 154.431.

15. The applicant’s representative argues that the Department mislead the applicant and he was not issued with the correct visa and because of that, the applicant travelled to Fiji and could not come back to Australia and that resulted in the relationship breakdown. The Tribunal does not consider these submissions helpful in assessing the applicant’s eligibility for the visa for which he has applied. Neither is the Tribunal convinced by the claim that a relationship that breaks down as a result of temporary separation and visa issues was necessarily a genuine and committed relationship but that is not the issue for this Tribunal.

16. The applicant has requested that the Tribunal refer the case to the Department for consideration by the Minister pursuant to s.351 which gives the Minister a discretion to substitute for a decision of the Tribunal another decision that is more favourable to the applicant, if the Minister thinks that it is in the public interest to do so. The applicant referred to the incorrect advice he received from the Department, which resulted in him not being able to return to Australia and the breakdown of his relationship, which was beyond his control. The applicant also referred to the length of time he has been living in Australia. The Tribunal has considered the applicant’s case and the ministerial guidelines relating to the discretionary power set out in the Department’s Procedures Advice Manual (PAM3) but has decided not to refer the matter. The Tribunal notes that the applicant can still make a request directly to the Minister.

    DECISION

17. The Tribunal affirms the decision not to grant the applicant a Transitional (Permanent) visa in Class 812.

    Kira Raif
    Senior Member