1607499 (Migration)

[2016] AATA 4314

1607499 (Migration) [2016] AATA 4314 (2 September 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Subhi Ahmad Fakhouri
Mrs Manal Mohd Adnan Ragheb Abukhalaf
Ms Safa Subhi Ahmad Fakhouri
Mr Ramzi Subhi Ahmad FAKHOURI
Mr Adnan Subhi Ahmad Fakhouri
Ms Aya Subhi Ahmad Fakhouri
Ms Shrouq Subhi Ahmad Fakhouri
Mr Ahmad Subhi Ahmad Fakhouri

CASE NUMBER:  1607499

DIBP REFERENCE(S):  BCC2016/1748875

MEMBER:Mary-Ann Cooper

DATE:2 September 2016

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicants Confirmatory (Residence) (Class AK) visas.

Statement made on 02 September 2016 at 2:58pm

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 18 May 2016 to refuse to grant the visa applicants Confirmatory (Residence) (Class AK) Subclass 808 visas under s.65 of the Migration Act 1958 (the Act).

2. The visa applicants applied for the visas on 16 May 2016. The delegate refused to grant the visas on the basis that they did not satisfy cl.808.211 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The delegate found that the applicants did not satisfy cl.808.211 because they did not hold a visa of the prescribed class at the time of application as required.

3. On 12 August 2016 the tribunal wrote to the review applicants advising that it had considered all the material before it relating to the applications but it was unable to make a favourable decision on that information alone. The tribunal invited the review applicants to give oral evidence and present arguments at a hearing on 2 September 2016. The review applicants were advised that if they did not attend the hearing and a postponement was not granted, the tribunal may make a decision on the case without further notice.

4. On the morning of the hearing, 2 September 2016, the applicant’s legal representative contacted the tribunal advising that at 12.12 am an email had been sent which indicated that the applicants waived their right to a hearing. The tribunal later received this document at 9.07 am on the morning of the hearing. Attached to the correspondence was a statement by each of the applicants that they waived their right to a hearing and instead would be seeking that the Tribunal exercise its power to refer their case to the Minister. This is discussed further below.

5. The review applicants did not appear before the tribunal on the day and at the scheduled time and place. In these circumstances, in light of the submissions made and the authorities signed, and pursuant to s.362B of the Act, the tribunal has decided to make its decision on the review without taking any further action to enable the applicants to appear before it.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is whether the applicant meets cl.808.211

8. At the time the visa application was lodged the Confirmatory (Residence)(Class AK) visa class contained only one subclass: Subclass 808 Confirmatory (Residence) visa - Item 1111(4) of Schedule 1 to the Migration Regulations.

9. The criteria for a Subclass 808 visa are set out in Part 808 of Schedule 2 to the Regulations. There are no secondary criteria, all applicants must satisfy the primary criteria: cl.808.2.

10. One of the requirements contained in cl.808.21 is as follows:

    808.21      Criteria to be satisfied at time of application 

    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 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 , 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 of a person who:

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

    (B)      has satisfied the ; 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.

11. The Confirmatory (Residence) visa is a permanent visa granted to persons who have entered Australia on a “conditional basis”. For the application to be successful, an applicant must, at the time of application, hold a Resident Return (Temporary)(Class TP) visa, an Emergency (Temporary)(Class TI) visa, a Border (Temporary)(class TA) or a Class 301 (Australian requirement) entry permit or visa granted under the Migration (1993) Regulations.

12. As recorded in the delegate’s decision, a copy of which was provided with the review application, and as confirmed by Departmental records, none of the applicants was the holder of any of these visas at the time of application.

13. As the applicants were not the holders of any of the prescribed visas at the time of their applications they do not meet cl.808.211, an essential requirement for the grant of the visas.

    CONCLUSION

14. Given the findings above, the Tribunal affirms the decision under review in respect of all the applicants.

    Ministerial intervention

15. The applicants have 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 applicants, if the Minister thinks that it is in the public interest to do so.

16. In this regard the covering correspondence provided on the morning of the hearing indicated that “for reasons outlines (sic) in submissions provided with our clients’ visa application at the primary stage, we request that the Tribunal exercise its power to refer this matter for the personal consideration of the Minister..”  Later in the correspondence the legal representative stated that she would “shortly provide the Tribunal with further submissions in support of the request for referral to the Minister for Immigration.”

17. The tribunal has considered whether to wait for the provision of further submissions in this regard however, noting the relevant Practice Direction regarding the tribunal’s expectations as to the timeliness of hearing invitation responses and written submissions[1], and noting that the representatives have been on notice since 12 August 2016 of the hearing date, the tribunal has decided to proceed to decision without further delay.

    [1] Migration and Refugee Matters : Practice Direction 30 June 2015, paragraphs 5 and 7.

18. The submission filed with the visa applications states that the applicants are all Jordanian citizens who came to Australia in 2010 on subclass 163 visas with the aim of eventually settling permanently. It is asserted that the first-named visa applicant successfully established a butcher shop and in late 2014 consulted an agent to arrange the necessary visas. It is claimed that she said she had made subclass 892 applications on their behalf. A period of time elapsed and the applicants were unable to contact the agent and so engaged their current lawyers. It was discovered that no subclass 892 visa applications had been made and the applicants’ status had become unlawful. They were subsequently granted BVEs with work rights attached. A decision from OMARA was attached to the submission in respect of the applicants’ former agent, which demonstrated that on 22 April 2016 her registration had been cancelled because of her failures and fraud related to another visa applicant.

19. In addressing the Minister’s guidelines, the submission claimed that the applicants’ circumstances constituted “unique or exceptional circumstances”.  Contending that the list of unique or exceptional circumstances is neither prescriptive nor exhaustive, it was submitted that it is in the public interest, in maintaining the integrity of the migration scheme, that victims of fraud, such as the applicants, come forward and are encouraged and supported to do so. Further, that they must be assisted to return to the position they were in before the agent’s misconduct. While this may be desirable, these circumstances do not appear, to the tribunal, to come within the guidelines. Presumably innocent victims will come forward anyway because they will need to regularise their visa status.

20. It was similarly claimed that, due to the agent’s misconduct, the applicants do not currently hold visas qualifying them for permanent residence and that this is an unfair or unintended consequence of the legislation. While the submissions assert that the applicants would have been eligible for the grant but for the agent’s actions, there is nothing before the tribunal that persuades it that this would necessarily have been the case. In addition, the tribunal is not satisfied that the fraud or other failings of an agent are appropriately characterised as a consequence of the operation of the legislation within the meaning of the guidelines.

21. Finally the submission relies on the applicants’ level of integration and exceptional benefit that would result if they were permitted to remain in Australia. It is asserted that the primary applicant has generated significant revenue and employs two Australian citizens but that his business will close and the assets and value would be relocated if he is required to depart. There are no documents before the tribunal, such as profit and loss statements, or statements from employees, that evidence the business’s financial position or its employer status.  The tribunal is therefore not satisfied that any “exceptional benefit” has been demonstrated. In addition, as noted by the submission, the primary applicant can apply for the visa offshore so in the circumstances there may be no need for the business to close.

22. 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) but has decided not to refer the matter. The Tribunal notes that the applicant can still make a request directly to the Minister.

    DECISION

23. The Tribunal affirms the decision not to grant the applicants Confirmatory (Residence) (Class AK) visas.

    Mary-Ann Cooper
    Member