1602693 (Migration)

[2016] AATA 4681

1602693 (Migration) [2016] AATA 4681 (24 November 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Wanwei Xiao

CASE NUMBER:  1602693

DIBP REFERENCE(S):  BCC2016/803724

MEMBER:Jennifer Ciantar

DATE:24 November 2016

PLACE OF DECISION:  Sydney

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

Statement made on 24 November 2016 at 11:33am

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 26 February 2016 to refuse to grant the visa applicant a Confirmatory (Residence) (Class AK) Subclass 808 visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 26 February 2016. The delegate refused to grant the visa on the basis that the applicant was not the holder of a specified visa for this subclass of visa. She therefore did not meet the primary requirements of cl.808.211. 

3. On 14 October 2016 the Tribunal invited the applicant to appear before the Tribunal on 2 November 2016. On 19 October 2016 the applicant’s representative advised the Tribunal that the applicant would not be attending the hearing and the visa application was made solely for the purpose of seeking Ministerial Intervention.

4. The applicant was represented in relation to the review by her registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in the present case is whether the applicant meets the requirements of cl.808.211 which requires the following:

   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.

7. The applicant has provided to the Tribunal a copy of the delegate’s decision record. It records that the applicant recently entered Australia as the holder of a Subclass 600 visa and that the applicant has not been a holder of a visa of the type specified above. The Tribunal therefore finds that the applicant does not meet the requirements of cl.808.211 (a), (b), (c) or (d).

8. The representative has written to the Department and the Tribunal stating the applicant’s intention is to obtain permanent residence in Australia through Ministerial intervention pursuant to s.351 of the Migration Act. However she has not made a request for the Tribunal to refer her case for Ministerial intervention.

   DECISION

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

   Jennifer Ciantar
   Member