1506376 (Migration)

[2015] AATA 3458

1506376 (Migration) [2015] AATA 3458 (7 October 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Chainee Ann Betts

CASE NUMBER:  1506376

DIBP REFERENCE(S):  BCC2015/1186051

MEMBER:Antonio Dronjic

DATE:7 October 2015

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the visa applicant a Return (Residence) (Class BB) visa.

Statement made on 07 October 2015 at 2:55pm

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 6 May 2015 to refuse to grant the visa applicant (the applicant) a Return (Residence) (Class BB) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied to the Department of Immigration for the visa on 22 April 2015. At the time of application, Class BB contained two subclasses – Subclass 155 (Five Year Resident Return) and Subclass 157 (Three Month Resident Return). In this case, claims have been advanced in respect of Subclass 155. The criteria for a Subclass 155 visa are set out in Part 155 of Schedule 2 to the Migration Regulations 1994 (the Regulations). Relevantly to this case, they include cl.155.211.

3. The delegate refused to grant the visa on the basis that the applicant did not meet cl.155.211 because the delegate was not satisfied that the applicant was the holder of a permanent residence visa or had the status of a former Australian Citizen or permanent resident.

4. The review application was lodged at this Tribunal on 11 May 2015. With the application, the applicant provided a copy of the primary decision record.

5. According to the primary decision record, the applicant arrived in Australia on 16 September 1988 as a holder of a T18 visa with the travel facility of 12 months. The T18 visa was a temporary resident visa.

6. On 17 August 2015, the Tribunal wrote to the applicant pursuant to s.359(2) of the Act inviting the review applicant to provide the information in writing that she meets either cl.155.211 or cl.157.211 to the Schedule 2 of the Regulations.

7. On 8 September 2015, the applicant’s representative submitted the following documents to the Tribunal:

   ·Legal submissions stating that the review applicant is unable to meet the requirements of cl.155.211 or cl.157.211; that the matter should still go to hearing as there are strong compelling and compassionate elements in this case. The review applicant is seeking the support of the Tribunal to go to the Minister pursuant to S.351 of the Migration Act. The representative further submitted that the review applicant is the mother of two Australian citizen children who live in Australia; she is also the spouse to Mr Peter Betts whose matter is currently before the Minister for Immigration and Border Protection under S.351 of the Migration Act. He outlined the applicant’s immigration history in Australia and requested that the Tribunal recommend to the Minister to exercise his discretion under s.351 of the Migration Act.

   ·Documents in support of the request for Ministerial intervention (Tribunal folios 24-59)

8. The applicant appeared before the Tribunal on 7 October 2015 to give evidence and present arguments. The applicant was represented in relation to the review by her registered migration agent.

9. At the commencement of the hearing the applicant conceded that she is unable to meet the requirements of cl.155.211 or cl.157.211 and stated that the purpose of the hearing is to present her claims for Ministerial Intervention under s.351 of the Act. I indicated to the applicant that, based on the evidence before me, she is unlikely to be successful with her review application.

10. I explained to the review applicant that under s.360 of the Act, The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review. Request for Ministerial intervention is, in my view, not an issue arising in relation to primary decision.

11. In addition, I explained to the applicant that I had regard to Minister’s Guidelines on Ministerial Powers and have form the view that in the particular circumstances of this case it would be inappropriate to refer the matter to the Minister as her husband has an outstanding request for Ministerial intervention. Finally I explained to the applicant that she can approach the Minister directly with her request after the decision is made by the Tribunal on the review application.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Does the applicant meet the residency/citizenship requirement?

13. Clause 155.211 requires that at the time of application the applicant either:

    ·is an Australian permanent resident; or

    ·was an Australian citizen but has subsequently lost or renounced Australian citizenship; or

    ·is a former Australian permanent resident, other than a former Australian permanent resident whose most recent permanent visa was cancelled.

14. In his submissions, the applicant’s representative stated that the review applicant arrived in Australia on 16 September 1988 as a holder of a British passport. She married Mr Peter Betts in September 1990. They have two children age 25 and 21, both Australian citizens.

15. Mr Betts arrived in Australia in 1982. His application for a resident return visa was refused both by the Department and the Tribunal. The request was made to the Minister on the 22 April 2015 to exercise his powers under S.351 of the Migration Act in relation to Mr Betts’s application. I note that this is the same day when Ms Betts applied for her resident return visa.

16. Based on the evidence before me, I am not satisfied that the applicant is an Australian permanent resident or was an Australian citizen but has subsequently lost or renounced Australian citizenship or is a former Australian permanent resident, other than a former Australian permanent resident whose most recent permanent visa was cancelled. Accordingly, the applicant does not meet cl.155.211.

17. For the purposes of a Subclass 157 visa, clause 157.211 is expressed in the same terms as clause 155.211. For the same reasons, the applicant does not meet clause 157.211 and he does not meet the criteria for a subclass 157 visa.

    Ministerial Intervention Pursuant to s.351 of the Act

18. The review 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 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.

19. As explained to the applicant, I took the view that a Request for Ministerial Intervention is not an issue arising in relation to primary decision. In addition, having considered the Minister’s Guidelines on Ministerial Powers, I was not satisfied that it would be appropriate to refer the matter to the Minister considering that her husband has a pending request for Ministerial intervention with the Department. If Mr Betts is successful with his request, it may be open for the review applicant to make a valid application for a partner visa of shore.

20. In any case, I informed the applicant that she can approach the Minister directly with her request after the decision is made by the Tribunal on the review application.

    DECISION

21. The Tribunal affirms the decision not to grant the visa applicant a Return (Residence) (Class BB) visa.

    Antonio Dronjic
    Member