Bates (Migration)

[2020] AATA 3450

Bates (Migration) [2020] AATA 3450 (14 July 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Fiona Mary Bates

CASE NUMBER:  1814008

DIBP REFERENCE(S):  BCC2018/1904496

MEMBER:Mary Urquhart

DATE:14 July 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 14 July 2020 at 10:28am

CATCHWORDS

MIGRATION – Confirmatory (Residence) (Class AK) visa – subclass 808 – not the holder of required visa at time of application – intention to apply for ministerial intervention – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 65, 351

Migration Regulations 1994, 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 1 May 2018 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 24 April 2018. The applicant indicated to the Department of Home affairs that the application was made with the purpose of ultimately seeking Ministerial Intervention under s.351 of the Migration Act.

3. The delegate refused to grant the visa on the basis that the applicant did not meet the criteria for a Confirmatory (Residence) visa under cl.808.211.

4. The applicant sought a review.

5. The applicant provided a general submission to the Tribunal on 12 June 2020 waiving their right to a hearing before the Tribunal and requesting the Tribunal to decide the application on the basis of the available information “noting the applicant is intending to request Ministerial Intervention”.

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

   RELEVANT LAW

7. At the time the visa application was lodged the Confirmatory (Residence)(Class AK) visa class contained only one subclass: Subclass 808 Confirmatory (Residence) visa.

8. 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.  One of the requirements contained in cl.808.211 is as follows:

   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.

   CLAIMS AND EVIDENCE

9. The Tribunal has before it the Department’s file relating to the applicants. The Tribunal also has had regard to the material referred to in the delegate's decision, and other material available to it from a range of sources.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. The issue in the present case is weather the applicant meets the criteria for a Confirmatory visa under cl.808.211.

12. The Confirmatory (Residence) visa is a permanent visa granted to persons who have entered Australia on a “conditional basis”.

13. For the application to be successful, an applicant must, at the time of application, hold a Resident Return (Temporary) visa (subclass 159) or an Emergency (Temporary visa (sub class 302); or a Boarder (Temporary) visa (subclass 773); or be a holder of a Class 301 (Australian requirement) entry or visa. 

14. The Tribunal has carefully considered the information and evidence before it. The Tribunal finds that the applicant was not the holder of any of the required visas at the time of application.

15. The Tribunal does not have the legal power to waive mandatory criteria prescribed for this class of visa.

16. Section 351 of the Act states that the Minister may only intervene and substitute a decision that is more favourable to the applicant once the Tribunal has made an unfavourable decision.

17. The applicant has informed the Tribunal they intend to seek consideration of the application by the Minister pursuant to section 351 of the Act.

18. The Tribunal notes that it is open to the applicant to approach the Minister and seek Ministerial Intervention in their case for a more favourable outcome. The Tribunal further notes that Ministerial Intervention is a matter for the Minister and entirely at the Minister’s discretion.

19. The Tribunal finds that the applicant does not meet the criteria for a Confirmatory (Residence) visa under cl.808.211.

    DECISION

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

    Mary Urquhart
    Member