2003890 (Migration) [2020] AATA 5319 (18 November 2020)

Last Updated: 8 January 2021

2003890 (Migration) [2020] AATA 5319 (18 November 2020)

DECISION RECORD

DIVISION: Migration & Refugee Division

CASE NUMBER: 2003890

MEMBER: Hugh Sanderson

DATE: 18 November 2020

PLACE OF DECISION: Sydney

DECISION: The Tribunal affirms the decision not to grant the applicant a Resolution of Status (Residence) (Class BL) visa.

Statement made on 18 November 2020 at 10:34am

CATCHWORDS
MIGRATION – Resolution of Status (Residence) (Class BL) visa – Subclass 851 (Resolution of Status) – current or former holder of a Subclass 850 visa – request for Ministerial referral declined – Australian citizen children – intellectual handicaps – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 851.221

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

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 8 June 2011 to refuse to grant the visa applicant a Resolution of Status (Residence) (Class BL) Subclass 851 visa under s.65 of the Migration Act 1958 (the Act).
2. The visa applicant applied for the visa on 25 March 1998. The delegate refused to grant the visa on the basis that she did not meet the criteria in cl.851.221.

Background

3. The applicant born in Greece and is a citizen of Greece. She is currently [age] years old. She first entered Australia [in] September 1981 holding a Tourist visa. This visa expired [in] December 1981. She remained in Australia as an unlawful noncitizen. She claimed that she was in a relationship with [Mr A] and had four children to him. They are now adults. Her relationship with [Mr A] ended over 25 years ago.
4. The applicant applied in 1998 for a Subclass 850 Resolution of Status (Temporary) visa. This application was deemed invalid as she did not hold a passport from one of the required specified countries. She also applied for a Subclass 851 Resolution of Status (Residence) visa.
5. The delegate who considered the application noted that as the applicant did not hold a passport from one of the specified countries her application for the Subclass 850 Resolution of Status visa was deemed invalid. As such, she did not hold and had never held a Subclass 850 visa. She therefore did not meet the criteria in cl.851.221 and the delegate refused the application. This decision was made on 8 June 2011.
6. The applicant remained in Australia and then applied for a Protection visa on 16 October 2013. As no claims were made in her application that she faced any persecution in Greece this application was deemed invalid. She again applied for a Protection visa on 31 October 2013 making various claims that she would face persecution in Greece due to her race. This application was refused by the Department. The applicant applied for a review of the decision before the Tribunal (differently constituted). During the hearing before the Tribunal the applicant indicated that the claims that had been made in her application were not true and the reason she was seeking the review of the Department’s decision was to enable her to seek Ministerial Intervention.
7. The Tribunal affirmed the Department’s decision to refuse the applicant the Protection visa. The Tribunal referred the matter to the Department, supporting the applicant in her application for Ministerial Intervention.
8. The application for Ministerial Intervention was refused.
9. On 5 February 2020 the Department re-notified the applicant of the decision to refuse her the grant of the Subclass 851 Resolution of Status (Residence) visa on the basis that the Department had determined that she had not been correctly notified when the decision was first made. The applicant is now seeking a review of that decision.

Information to the Tribunal

10. The applicant provided a joint statement from her daughter, a family support worker and a social worker setting out the reasons why they believed the Minister should intervene and allow the applicant to remain in Australia. This included the following claims:
    • The applicant’s eldest daughter, [Ms B], aged [age] years, suffers from severe intellectual handicap and is in respite care but visits her mother every Sunday;
    • The applicant’s son, [Mr C], suffers a mild intellectual disability and autism spectrum disorder and social phobia;
    • All four of the applicant’s children are Australian citizens;
    • The removal of the applicant would result in irreparable harm to her children; and
    • The removal of the applicant would result in the two children who do not have intellectual handicaps being required to provide support for their other siblings.
11. The applicant appeared before the Tribunal by telephone on 18 November 2020 to give evidence and present arguments. The applicant’s daughter, [Ms D], and the applicant’s representative, [Ms E], attended with the visa applicant.
12. [Ms E] explained that she had previously worked as the social worker for the applicant. Although she was no longer working as a social worker, she remained a friend of the visa applicant and had assisted her in various ways throughout the process.
13. It was acknowledged by all present that the applicant did not meet the criteria for the grant of the visa for the reasons set out in the Department’s decision. It was stated the reason for the application to the Tribunal was to enable the applicant to request Ministerial Intervention.
14. It was claimed that the applicant was never sponsored by the father of her children for a visa as the father of the children was married throughout the time that he was in a relationship with the applicant. It was claimed that the applicant and the father of her children never lived together in an exclusive relationship. It was claimed that the father of the children was abusive to the applicant and her children. The applicant’s daughter said that she had not had any contact with her father for about 30 years and has not taken any steps to try to locate him.
15. [Ms E] claimed that the previous application for Ministerial Intervention did not appear to have gone before the Minister and she believed that there was sufficient reason for the Minister to intervene in the applicant’s case due to her unique circumstances and family history.
16. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

CONSIDERATION OF CLAIMS AND EVIDENCE

17. For the criteria in cl.851.221 to be met the applicant must be a holder of a Subclass 850 Resolution of Status (Temporary) visa or have held a Subclass 850 visa which ceased upon the refusal of the Subclass 851 visa, which decision was then set aside by the Tribunal.
18. As is stated in the Department’s decision, a copy of which the applicant provided to the Tribunal, the applicant has never held a Subclass 850 Resolution of Status (Temporary) visa. The applicant has acknowledged this.
19. The Tribunal finds the applicant has never been the holder of a Subclass 850 Resolution of Status (Temporary) visa. As such, the applicant does not meet the criteria in cl.851.221 and the Tribunal must affirm the decision of the Department to refuse the applicant the visa.
20. The applicant acknowledged the fact that she does not meet the criteria for the grant of the visa. It was stated that the application for a review of the decision has been made to enable her to apply for Ministerial Intervention. The applicant has previously applied for Ministerial Intervention after she was refused the grant of a Protection visa. In the decision of the Tribunal in that matter the Tribunal stated that the case warranted further investigation by the Department and possible referral to the Minister for various reasons. Despite that recommendation, the application for Ministerial Intervention was rejected.
21. It is up to the applicant as to whether she wishes to apply for Ministerial Intervention. If the applicant does apply for Ministerial Intervention, the applicant and her supporters must provide all necessary documents to support any claim that she has that her case involves unique or exceptional circumstances which would justify the Minister intervening. This would include any medical records of herself and her children, details of her life in Australia, details of any relatives or other support that she would have in Greece if she were required to return to Greece to live and any other relevant circumstances. As there is limited information before the Tribunal to support the claims made by the applicant, the Tribunal does not intend to refer the matter to the Minister for intervention and it is up to the applicant to make a request that the Minister intervene herself.

DECISION

22. The Tribunal affirms the decision not to grant the applicant a Resolution of Status (Residence) (Class BL) visa.

Hugh Sanderson
Member