Athige (Migration)

[2021] AATA 2531

Athige (Migration) [2021] AATA 2531 (12 July 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Sweena Nishani Athige
Mr Janaka Prabahath Liyanabadalge
Mr Luveen Mclean Gunarathna Liyanabadalge
Mr Swain Dinsath Gunarathna Liyanabadalge

CASE NUMBER:  1934550

DIBP REFERENCE(S):  BCC2019/5251489

MEMBER:Kira Raif

DATE:12 July 2021

PLACE OF DECISION:  Sydney

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

Statement made on 12 July 2021 at 3:05pm

CATCHWORDS
MIGRATION – Confirmatory (Residence) (Class AK) visa – Subclass 808 (Confirmatory) – consent to decision without hearing – did not hold prescribed visa at time of application – husband’s and child’s serious health conditions – referred for ministerial consideration – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 351
Migration Regulations 1994 (Cth), Schedule 2, cl 808.211

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 29 November 2019 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 applicants applied for the visa on 3 October 2019. The delegate refused to grant the visa on the basis that cl. 808.211 was not met because the delegate was not satisfied the applicants held the prescribed type of visas when the applications were made. The applicants seek review of the delegate’s decision.

3. In April 2021 the Tribunal wrote to the review applicants by letter, advising that it had considered all the material before it relating to their application 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 12 July 2021. On 12 July 2021 the Tribunal was advised in writing that the review applicants did not wish to give oral evidence and consented to the Tribunal proceeding to make a decision on the review without taking any further action to allow or enable them to appear before it. This matter has therefore been determined on the evidence available to the Tribunal.

   Relevant law

4. Clause 808.211 is a criterion that must be met at the time of application and it provides 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.

   Did the applicants hold a prescribed type of visa at the time of the application?

5. When making the application for review, the applicants provided to the Tribunal a copy of the primary decision record. It indicates that at the time the application was made, the applicants were the holders of Student visas.

6. There is no evidence before the Tribunal that at the time of the application, or at any other time, the applicants held Resident Return, Emergency (Temporary), Border (Temporary) visas or the Class 301 (Australian requirement) entry permit or visa. The Tribunal is not satisfied that the applicants ever held any of the visas or entry permits prescribed in cl. 808.211. The Tribunal is not satisfied that the applicants meets cl. 808.211 and the secondary criteria for visa grant.

7. 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 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. The Tribunal has considered the applicants’ circumstance.  The Tribunal acknowledges the evidence indicating that the applicant husband and one of the children suffer from serious health conditions and, importantly, that the child is under ongoing observations from Australian health professionals. There are medical reports before the Tribunal and a statement from his treating doctor indicating that the child will be subject to regular and frequent observations in the foreseeable future and that it would be in his interest if such observation continues with his present medical team in Australia. The applicants also submit that appropriate medical treatment would not be available in Sri Lanka and that the child in particular would be at a heightened risk of being affected by Covid due to his present condition. Having regard to all of these circumstances, the Tribunal accepts there are compassionate considerations in this case. The Tribunal has considered the applicants’ case and the ministerial guidelines relating to the discretionary power set out in the Department’s Procedures Advice Manual (PAM3) and will refer the matter to the Department.

   Conclusions                   

8. Given the findings above, the Tribunal affirms the decision under review.

   DECISION

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

   Kira Raif
   Senior Member