Sorbito (Migration)

[2023] AATA 4174

Sorbito (Migration) [2023] AATA 4174 (1 December 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Rosalie Quirabo Sorbito

REPRESENTATIVE:  Ms Rachel Anne Magill (MARN: 0601736)

CASE NUMBER:  2301446

HOME AFFAIRS REFERENCE(S):          BCC2023/209537

MEMBER:Simone Burford

DATE:1 December 2023

PLACE OF DECISION:  Perth

DECISION:The Tribunal affirms the decision not to grant the applicant a Confirmatory (Residence) (class AK) visa.

Statement made on 01 December 2023 at 11:11am

CATCHWORDS

MIGRATION – Confirmatory (Residence) (Class AK) visa – Subclass 808 (Confirmatory) – holder of a substantive visa – relationship ceased – family violence allegations – referral for Ministerial intervention – Australian citizen child – parenting plan with supervised visits – potential restrictions on the child travelling – decision under review affirmed          

LEGISLATION

Migration Act 1958, ss 65, 351
Migration Regulations 1994, Schedule 2, cls 808.211, 808.212, 808.213

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 17 January 2023 to refuse to grant the visa applicant a Confirmatory (Residence) (Class AK) Subclass 808 visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicant applied for the visa on 10 January 2023.

3. The delegate refused to grant the visa on the basis that the applicant did not meet the criteria for the visa. 

4. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.  The Tribunal recommends the matter be referred for consideration of Ministerial intervention.

   Background

5. The applicant is a Filipino national who was born in Basay, Philippines in 1989.  The applicant arrived in Australia 14 November 2017 on a FA 600 visitor visa. Her contact in Australia was listed as Philip John Conolly.

6. She departed Australia on 11 February 2018 and returned to Australia on 13 September 2018 on another visitor visa.  She departed again in March 2019.  She applied for a further visitor visa on 12 March 2019 which was refused by the Department on 21 March 2019.  

7. On 3 June 2019 she applied for a Prospective Marriage (TO 300) visa listing Phillip John Conolly as her ‘Spouse’. On 3 June 2019 the applicant applied for a Medical Treatment (Class UB) visa which was granted on 13 June 2019 to allow her to return to Australia for the birth of her child.  She arrived in Australia on 26 June 2019 and in August 2019 she gave birth to her daughter Ms S.

8. The applicant departed again on 12 December 2019. She told the Tribunal she returned to the Philippines with her daughter and Mr Conolly as her Medical Treatment visa conditions required her to depart. She said that due to COIVD restrictions the family was unable to return to Australia until 2021.  Mr Conolly returned in the middle of the year and Ms S and the applicant returned at the end of the year.  Records are consistent with this evidence and indicated that on 7 September 2021 she applied for a further visitor visa, including Mr Conolly as her ‘Spouse’. She was granted that visa on 5 October 2021 and she arrived in Australia on 27 November 2021.

9. On 10 February 2022 the applicant applied for a Temporary Activity (GG 408) visa.  On 22 April 2023 the applicant was granted a Prospective Marriage visa (onshore) under COVID-19 concessions.  Her application for the Temporary Activity visa was withdrawn on 29 September 2022.      

10. On 10 January 2023 the applicant applied for the Confirmatory (Nil) (AK 808) visa (the Confirmatory Residence visa) and this application was refused on 17 January 2023.  That is the application for which the applicant has sought review to the Tribunal.

11. On 7 March 2023 the Department was notified of the relationship breakdown with respect to the Prospective Marriage visa application.  The Prospective Marriage visa ceased on 28 July 2023.

    Review

12. The applicant appeared before the Tribunal on 30 November 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Tagalog and English languages.

13. The applicant was represented in relation to the review. The applicant’s representative, who was acting on a pro bono basis,  attended the hearing and made written submissions to the Tribunal.

14. The applicant’s representative made written submissions on 30 October 2023 and provided the following documents in support of the application:

    ·            Bank statement for the applicant, said to demonstrate her limited funds;

    ·Letter from Supported Accommodation and Homelessness Services Shoalhaven lllawarra Ltd;

    ·            Email from the applicant’s family lawyer, Ms Lauren Dunn;

    ·            Parenting plan between the applicant and Mr Conolly;

    ·            Letter from Novotel Hotel confirming the applicant’s employment;

    ·            Example payslips showing the applicant’s income;

    ·            Statement from Mr Stephen Leggett, the applicant’s flatmate;

    ·            Birth certificate Ms S, the applicant’s daughter;

    ·Confirmation of childcare for Ms S from Wollongong TAFE Children’s Centre.

15. The submissions indicated these documents were offered in support of the request for Ministerial intervention.

    CRITERIA FOR THE VISA

16. A visa cannot be granted unless the relevant criteria specified in the Act and the Migration Regulations (Cth) (the Regulations) are satisfied.

17. The criteria for a Confirmatory (Residence) (Class AK) (subclass 808) visa are set out in

    
    

    cl 808 of the Regulations.  According to cl 808.21 at the time of application the applicant must satisfy the following criteria:

    (a) clauses 808.211 and 808.212; or

    (b) clause 808.213 (which applies to some former holders of Norfolk Island immigration permits)

18. Clause 808.211 requires that the applicant is:

    (a) is the holder of a Resident Return (Temporary) (Class TP) visa and satisfies the Minister that he or she would have satisfied the criteria for the grant of a Return (Residence) (Class BB) visa at the time he or she was granted the Resident Return (Temporary) (Class TP) visa;

    or

    (b) is a person who is the holder of an Emergency (Temporary) (Class TI) visa and:

    (i) either:

    (A) satisfies the remaining criteria, within the meaning of Part 302; or

    (B) is unable to satisfy those criteria, but is able to substantiate a claim to be an Australian permanent resident; or

    (ii) is a member of the family unit of a person who:

    (A) is the holder of a Subclass 302 (Emergency (Permanent Visa Applicant)) visa; and

    (B) has satisfied the primary criteria; or

    (C) is the holder of a Border (Temporary) (Class TA) visa and satisfies the Minister that he or she would have satisfied the criteria for the grant of a Return (Residence) (Class BB) visa when he or she was granted the Border (Temporary) (Class TA) visa; or

    (D) is the holder of a Class 301 (Australian requirement) entry permit or visa granted under the Migration (1993) Regulations and has satisfied the criteria referred to in paragraph 301.321(b) of Schedule 2 of those Regulations.

19. Clause 808.212 requires that in the case of an applicant who is the holder of a Subclass 302 visa, all members of the family unit of the applicant satisfy the public interest criteria applicable to them.

20. Clause 808.213 provides:

    (1) This clause applies if paragraph 1111(2A)(b), (c) or (d) of Schedule 1 covers the application.

    Note: Paragraphs 1111(2A)(b), (c) or (d) of Schedule 1 cover applications made on the basis  of the former migration status under the Immigration Act 1980 (Norfolk Island) of the applicant or a parent of the applicant.

    (2) The application must be made before 1 January 2024, unless the Minister is satisfied that there are compelling reasons for granting the visa.

    (3) During a period of, or periods that total, not less than 5 years in the period of 7 years immediately before the application is made (including any period, or part of a period, before 30 June 2016), the applicant meets the requirements of subclause (4).

    (4) The applicant meets the requirements of this subclause during any period or periods while:

    (a) the applicant is (or has been) lawfully present in Norfolk Island; or

    (b) the applicant is (or has been) lawfully present in a place elsewhere in Australia, and:

    (i) has not turned 25; and

    (ii) is a dependent child of a person who is ordinarily resident in Norfolk Island; and

    (iii) lives (or has lived) in that place for the purpose of study; and

    (iv) while living there, meets (or met) the requirements mentioned in condition 8105 (which relates to students engaging in work).

    Note 1: An applicant can meet the requirements of subclause (4) by a combination of periods to which either paragraph (4)(a) or (4)(b) applies, if the total duration of that combination of periods amounts to not less than 5 years.

    Note 2: Condition 8105 is not imposed on the visa.

    CONSIDERATION

21. The applicant did not contend that she meets the criteria for a Confirmatory Residence visa.  This was consistent with the submissions made by her representative and the information before the Tribunal.

22. As noted earlier, cl 808.211 requires that, at the time of application, the applicant is a holder of a Resident Return (Temporary) (Class TP) visa, an Emergency (Temporary) (Class TI) visa, a Border(Temporary)(Class TA) visa, or a Class 301 (Australian requirement) entry permit or visa granted under the Migration (1993) Regulations.

23. The information before the Tribunal is that the applicant held a temporary Prospective Marriage Class TO (subclass 300), at the time of application.  Accordingly, cl 808.211 for the Confirmatory Residence visa is not met by the applicant. As cl 808.211 is not met, it follows that the applicant does not meet subclause 808.211A(a). Therefore, cl 808.212 does not apply to the applicant.

24. Consistent with submissions made on her behalf, the applicant also does not meet any of the subclauses in cl 808.213 relating to Norfolk Island. As such, the applicant fails to meet

    
    

    cl 808.213.

25. As the applicant did not satisfy cls 808.211 and 808.212, or 808.213 at the time of application, she does not meet clause 808.211A. As clause 808.211A is not met, the Tribunal is satisfied that the time of application criteria have not been met by the applicant (subclause 808.21 of the Regulations).

26. As clause 808.21 of Schedule 2 of the Regulations is not met by the applicant, the Tribunal finds the criteria for the grant of a Confirmatory (Residence) visa are not met. 28/09/

    Referral to the Minister

27. The applicant has requested that the Tribunal refer the case to the Department for consideration by the Minister pursuant to s.351 of the Act 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.

28. It was submitted that the applicant had previously been in a de facto relationship and engaged to an Australian citizen, Mr Phillip Conolly. They have had two children together, one who passed away two days after birth in traumatic circumstances in 2018 in the Philippines and Ms S who is an Australian citizen born in Australia in August 2019.

29. It was submitted that the applicant had been in Australia since 2021, most recently as the holder of a Prospective Marriage visa granted in April 2022. She claimed she was the victim of family violence within the relationship.  However, as the relationship between her and Mr Conolly broke down prior to a Partner visa application being lodged she cannot rely on the family violence provisions applying to partner visa application or to provisions relating to Australian citizen children to obtain a visa to remain in Australia.

30. It was submitted that the applicant is the sole carer of an Australian citizen child and that there are credible grounds to believe that she has been the victim of ‘significant family violence’ at the hands of Mr Conolly.  Submissions indicated the applicant’s representatives had been unable to obtain the Department of Communities and Justice (DCJ) or police records to further substantiate the allegations of family violence due to time constraints. However, it the letter from Supported Accommodation and Homelessness Services Shoalhaven lllawarra Ltd, was offered as evidence that emergency temporary accommodation was provided to the applicant and her daughter as a result of a referral from the police and DCJ due to family violence. At the hearing the applicant’s representative said that there had been several interventions by police and DCJ in relationship to which further evidence would be sought to be provided to the Minister if the matter is referred.

31. A letter from the applicant’s family lawyer, Ms Lauren Dunn, was also offered as evidence of family violence allegations, noting also that from March 2022 when the applicant fled the family home until August 2023, Ms S had spent no time with Mr Conolly.

32. It was submitted that the applicant and Mr Conolly now have a parenting plan in place for Mr Conolly to have supervised visits with Ms S for two hours per fortnight. It was contended that the applicant is seeking obtaining sole parental responsibility for Ms S in view of ‘the extent of the claimed family violence.’  Currently no orders are in place with respect to the child.

33. It was submitted that the applicant remains in very vulnerable circumstances, but has worked to provide a safe and stable environment for Ms S. She rents a private room with Stephen Leggett in Kurri Kurri, New South Wales, who has also been very supportive of both the applicant and Ms S. Ms S currently attends childcare at Wollongong TAFE Children’s Centre three days a week and it was submitted she had benefitted greatly from the safety and stability that the applicant has provided.

34. The applicant provided evidence that she has recently commenced casual employment in housekeeping with the Novotel Hotel in Wollongong Northbeach and also receives limited financial support from Centrelink. She does not currently receive child support.

35. It was submitted that the applicant has equal shared parental responsibility with Mr Conolly, and if she were to leave Australia she would not have clear authority to take Ms S with her. It was submitted that it would be inconsistent with the Convention on the Rights of the Child if Ms S was left with a remaining parent in Australia who is the ‘subject of grave family violence allegations’ and ‘who has a very limited relationship with that child’.  While the applicant testified there were currently no restrictions on Ms S travelling, the Tribunal considers there is a likelihood based on the fact he has sought access to the child through parenting order that he would seek to restrict her removal from Australia if the applicant sought to relocate with her to the Philippines.  The Tribunal notes in this regard that the applicant testified Mr Conolly has previously threatened that the child would remain in Australia while the applicant would be returned to the Philippines.

36. It was further submitted that the grant of a visa through Ministerial intervention would be consistent with the intention of the family violence provisions within the Partner visa program which were introduced to ensure that visa holders did not feel compelled to remain with perpetrators of family violence. It was submitted that while the applicant cannot rely on these family violence provisions in her particular circumstances, the family violence occurred in Australia whilst she was caring for their Australian citizen child, and that allowing her to remain is consistent with the ‘legislative measures and Government’s stance in relation to family violence’.

37. The Tribunal notes that the applicant’s visa history was consistent with the submissions made on her behalf.  It was also consistent with information provided to the Department confirming the breakdown of the relationship.  There was no information before the Tribunal to suggest that  Ms S was not a daughter of the relationship between the applicant and Mr Conolly.  Had the applicant applied for a partner visa prior to the breakdown of the relationship she may well have been able to provide information to satisfy the decision maker that she met the criteria for that visa notwithstanding the breakdown of her relationship.  However, it was submitted that the grant of the Prospective Marriage visa onshore during COVID had in effect delayed the necessity of any application for a Partner visa and that in the interim the relationship broke down while the applicant remained on a visa which did not have access to the protections available under the partner visa program. The Tribunal notes that specific provisions in the partner visa criteria are designed to deal with such circumstances where there is a child of the relationship and/or where the applicant has been a victim of family violence. 

38. The Tribunal notes that the applicant was not sponsored by her partner for a Partner visa. Had she applied for a Partner visa on arrival in Australia, based on the history provided and the fact the couple had a child together it seems likely she would have met the requirements time of application requirements for a Partner visa. Had she been an applicant for a combined Partner visa, the fact that she shared parental responsibility for an Australian child and/or was the victim of domestic violence perpetrated by her partner would have likely qualified her for the grant of a Partner visa regardless of whether there was a continuing relationship with her sponsor.  In this regard the Tribunal notes that while the current evidence of family violence does not appear to be sufficient to meet the evidentiary thresholds under the Act, the Tribunal accepts on the material before it there would likely be further evidence which would support the applicant’s claims.  In any event the Tribunal accepts the submission that there is credible evidence that the applicant was a victim of family violence, including from the shelter to which she and her daughter were referred by police.

39. The exemptions which apply to the grant of a Partner visa following the withdrawal of sponsorship or in the absence of an ongoing genuine and continuing relationship explicitly recognise the importance of Australian citizen children being able to remain in Australia with the support and, ideally, care and protection of both parents after family breakdown. They also seek to ameliorate the risk of visa status being used as a weapon of domestic violence, empowering victims of violence to leave abusive relationships without losing their visa status, reflecting the fact the Australian Government has ‘zero tolerance for domestic and family violence’.[1] Both considerations are present in the applicant’s circumstances.

    [1] >

    The Tribunal considers on the information before it that the applicant has been denied the opportunity to obtain a permanent visa which would enable her to remain in Australia with her daughter because she was in an abusive relationship where her visa status was used as a tool of control. This has left her and her Australian citizen child in a situation of ongoing instability and financial strain and has limited the applicant’s options with respect to remaining in Australia with her daughter as her primary caregiver.

40. Additionally compelling are the interests of her Australian citizen child.  The Tribunal accepts that the applicant is currently the primary caregiver for her daughter.  The Tribunal also considers that as the child is resident in Australia and has been for some time that there is a significant risk that the applicant would not be permitted to remove the child from Australia without Mr Conolly’s consent which may not be forthcoming. This raises the real risk that her daughter may be left without the care and protection of her primary caregiver if the applicant is removed from Australia.  Even if the child were able to move to the Philippines with her mother, this will result in limited contact with her father.  It will also limit her access to the educational and economic opportunities available to her in Australia as an Australian citizen child.  In the Tribunal’s view the child’s best interests would be served by their mother having a permanent visa which would facilitate her remaining with her and in Australia.

1. It is not clear on the information before the Tribunal whether the applicant has exhausted the visa pathways in Australia which may be available to her as the custodial parent of an Australian citizen child.  Her representative contended that there were no viable options in the short to medium term for a visa which would enable the applicant to live and work in Australia and that delay or any break in the applicant’s visa status put care arrangements for Ms S at risk.  Given the particular circumstances of the minor child, the fact she would likely be prevented from exiting Australia without the consent of Mr Conolly, the uncertainty regarding her care arrangements in the event that the applicant is forced to return to the Philippines and credible evidence of family violence, the Tribunal considers the applicant’s case should be referred to the Department for consideration of Minister intervention.

2. 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) and will refer the matter to the Department for consideration for Ministerial Intervention. Further documents and submissions addressing this matter should be directed to the Department.

   DECISION

3. The Tribunal affirms the decision not to grant the applicant a Confirmatory (Residence) (class AK) visa.

   Simone Burford
   Senior Member