Woolley (Migration)

Woolley (Migration) [2023] AATA 484 (14 March 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ms Erna Woolley
REPRESENTATIVE:  Mr Natale Menniti (MARN: 1066082)
CASE NUMBER:  2205158
HOME AFFAIRS REFERENCE(S):          BCC2022/70272

MEMBER:Meena Sripathy
DATE:14 March 2023
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the visa applicant a Confirmatory (Residence) (Class AK) Subclass 808 visa.

Statement made on 14 March 2023 at 9:33am
CATCHWORDS
MIGRATION – Confirmatory (Residence) (Class AK) visa – Subclass 808 (Confirmatory) – holder of a substantive visa – request for Ministerial intervention – present in Australia at the time of the COVID 19 pandemic – applicant’s partner passed away – beneficiary of a trust – proximity to the late partner’s grave – 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

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 22 March 2022 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).
The visa applicant applied for the visa on 22 February 2022. The delegate refused to grant the visa on the basis that the applicant does not meet any of clauses 808.211, 808.212 or 808.213 and therefore does not meet cl.808.211A.
On 15 December 2022 the Tribunal invited the applicant to provide submissions and information addressing the issues arising in the review.
On 20 January 2023 the applicant, through their representative, responded with a submission and supporting documents. The submission indicated that the applicant does not seek to satisfy the criteria for the grant of the Confirmatory (Residence) (Class AK) visa, but seeks a referral by the Tribunal to the Minister to use their powers under s351 of the Act.
On 30 January 2023 the representative advised that the applicant did not consent to a decision on the papers and would like to participate in a hearing.
The applicant appeared before the Tribunal on 13 March 2023 to give evidence and present arguments. The applicant was represented in relation to the review and her representative attended the hearing.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the applicant meets any of clauses 808.211, 808.212 or 808.2133 to satisfy cl. 808.211A. The relevant clauses are extracted in an attachment to this decision.
The applicant conceded in her submissions to the Tribunal, and confirmed to the Tribunal at the hearing, that she does not seek to satisfy the criteria for the grant of the Contributory (Residence) Class AK visa. On this basis it makes the following findings.
The applicant was the holder of a FA 600 Visitor visa at time of application, valid to 8 August 2022.
Given that she was the holder of this substantive visa, she does not meet any of the alternatives in cl. 808.211. As she does not meet this clause, it is not necessary to consider whether she meets cl.808.212, but she also does not meet this clause on the same basis.
As the applicant is not the holder of a Norfolk Island immigration permit, she does not meet cl.808.213.
Therefore the applicant does not meet cl.808.211A of the Regulations.
Based on the finding above, the applicant does not meet the requirements for the grant of the visa and the decision under review must be affirmed.
Ministerial intervention
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.
In the response to the Tribunal’s request for information, the applicant’s representative provided submissions and supporting documents arguing that there are unique or exceptional circumstances in this case to warrant a referral to the Minister.
In brief, it is submitted the applicant was in a de facto relationship with Lesley John Allen from 2007 to 2020. The couple lived between the USA and Australia in that period. In February 2020 the applicant arrived in Australia on a Visitor visa valid for 3 months. She was subsequently granted an extension of her visitor visa due to the circumstances of the COVID 19 pandemic. In November 2020 the applicant and Mr Allen commenced preparations to lodge a Partner 820/801 visa application based on their long term relationship. On 30 March 2021 Mr Allen suddenly passed away from acute hepatic failure (liver failure). The applicant was granted further visitor visas in March 2021 and February 2022, the last one valid to August 2022. The present application was made as a pathway to seek Ministerial Intervention under Section 351 of the Migration Act.
The applicant’s representative identified the following ‘unique or exceptional circumstances’ referred to in the Minister’s guidelines arise in the present case.
It is submitted that there are compassionate circumstances regarding the age and/or health and/or psychological state of the person that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to the person. The applicant does not wish to be separated from Mr Allen. He is buried at Port Douglas cemetery in the town of their residence and the applicant does not want to live anywhere else and lose access to visiting him. It was his wish for her to live in Australia permanently, and he provided for her financial and other needs to remain living in Australia permanently.
It is further submitted that there are exceptional economic, scientific, cultural or other benefit would result from the person being permitted to remain in Australia. Evidence was provided from Mr Allen’s accountant/executor demonstrating that she is the beneficiary of a trust with assets in excess of $8,000,000. It is submitted that the applicant maintaining residence in Australia ensures that this wealth is spent in Australia and this is a significant economic amount. The applicant lives in a regional town of Port Douglas Far North QLD, and evidence of her everyday bank statement demonstrates that she invests in locals businesses, with spending stimulating the local economy. The applicant has no need to access any benefits or welfare, so she will be no financial burden of the Australian government. The Tribunal accepts that the applicant has financial means to support her living in Australia.
Finally, it is submitted there are circumstances not anticipated by relevant legislation; or clearly unintended consequences of legislation or the application of relevant legislation leads to unfair or unreasonable results in a particular case. It is submitted the couple had a clear intention to reside in Australia permanently and there was a clear and straightforward pathway for the applicant to obtain Australian residence, which was obstructed by the circumstances of the COVID 19 pandemic and closure of borders between states and the sponsor’s sudden death.
The Tribunal acknowledges the representative’s submission that the migration regulations allow for the grant of a Partner (Residence) (class BS) (subclass 801) visa when the sponsoring partner has died after visa application lodgement. This regulation was prescribed to allow a partner whose Australian spouse has passed to allow them to continue to remain living in Australia permanent as that was the intention of the parties.
At the hearing the applicant reiterated that it is her desire to continue living in Australia, in the premises she is currently residing which is across the road from where late partner is buried. They had discussed their plan to reside here before he suddenly died and she wants to honour that. She never expected him to die.
The Tribunal enquired about her family connections. She said she has four siblings, three sisters reside in Florida and one sibling lives in Maryland. She also has nieces and nephews in the USA. She has a property in Florida, that is currently being looked after by her sister and brother in law. Her late husband has two sons, both reside in the USA. He has one sister in Australia.
The Tribunal noted that she has been travelling back and forth from the USA to Australia over many years and asked why she would not continue to do that. She said their plan was to stop travelling and settle here. She is still grieving his death. She wants to be close to where he is buried.
The representative told the Tribunal he has discussed with the applicant the option of visitor visas in future, but one of their concerns is whether as she gets older there may be issues obtaining visitor visas on health grounds.
The Tribunal has carefully 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 acknowledges and is sympathetic to the applicant’s sudden loss of her partner in March 2021 and her desire to be in close proximity to her late partner’s grave up to now. It notes that she has been able to travel to and remain in Australia on visitor visas for many years and has the financial means to continue to do so. It observes her close family ties remain substantially in the USA rather than in Australia, and she has property and a home there to return to. No evidence is before the Tribunal relating to the applicant’s health or psychological health to support that there would be serious, ongoing and irreversible harm and continuing hardship to her if the intervention power was not invoked in this case.
Having carefully considered the material and evidence before it, the Tribunal has decided not to refer matter to the Minister for intervention. The Tribunal notes that the applicant can still make a request directly to the Minister.
The Tribunal will forward to the Department the submissions and supporting documentation that was submitted to the Tribunal. Any further supporting documents the applicant wishes to provide should be forwarded directly to the Department.
DECISION
The Tribunal affirms the decision not to grant the visa applicant a Confirmatory (Residence) (Class AK) Subclass 808 visa.
Meena Sripathy
Member

ATTACHMENT - Extract from Migration Regulations 1994
808.21 Criteria to be satisfied at time of application
808.211A
The applicant satisfies:
(a) clauses 808.211 and 808.212; or
(b) clause 808.213 (which applies to some former holders of Norfolk Island immigration
permits).
808.211
The applicant:
(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.
808.212
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.
808.213
(1) This clause applies if paragraph 1111(2A)(b), (c) or (d) of Schedule 1 covers the
application.
(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).

[2023] AATA 484

14 March 2023

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction