Bates (Migration)

This matter concerned an application for a Confirmatory (Residence) (Class AK) visa, subclass 808. The applicant sought review of a decision not to grant this visa. The Tribunal, constituted by Mary Urquhart, was required to determine whether the applicant met the criteria for the visa.

The central legal issue before the Tribunal was whether the applicant satisfied the requirements of clause 808.211 of the Migration Regulations. Specifically, the Tribunal had to ascertain if the applicant held one of the specified visas at the time of their application for the Confirmatory (Residence) visa. The Tribunal also considered the applicant's stated intention to seek ministerial intervention.

The Tribunal reasoned that the Confirmatory (Residence) visa is a permanent visa for individuals who entered Australia on a conditional basis and must hold a specific temporary visa at the time of application, such as a Resident Return (Temporary) visa (subclass 159), an Emergency (Temporary) visa (subclass 302), a Border (Temporary) visa (subclass 773), or be a holder of a Class 301 entry visa. The Tribunal found, based on the evidence, that the applicant did not hold any of these required visas when they applied. The Tribunal noted that it lacked the legal authority to waive mandatory visa criteria and that section 351 of the Migration Act 1958 (Cth) allows the Minister to intervene only after an unfavourable decision by the Tribunal. The Tribunal acknowledged the applicant's intention to seek ministerial intervention, clarifying that this is a discretionary matter for the Minister.

Consequently, the Tribunal affirmed the decision not to grant the applicant the Confirmatory (Residence) visa, finding that the applicant did not meet the criteria under cl.808.211.