Boutros (Migration)

Boutros (Migration) [2023] AATA 2235 (21 June 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Rimon Khazen Boutros
Mr Mtanios Boutros
Mr Eid Khazen Betros
CASE NUMBER:  2016414
HOME AFFAIRS REFERENCE(S):          CLF2020/79273

MEMBER:SM Michael Cooke
DATE:21 June 2023
PLACE OF DECISION: Sydney
DECISION:The Tribunal has concluded that the decision under review should be affirmed.

Statement made on 21 June 2023 at 4:36pm
CATCHWORDS
MIGRATION – Resolution of Status (Class CD) visa – Subclass 851 (Resolution of Status) – temporary and permanent visas applied for, refused and notified together – notification incorrect and re-notified – entered Australia after specified date – not dependent child on relevant date – resided with parents, but employed and not wholly or substantially financially dependent – long residence, work in skilled trades and integration into community – elderly mother’s poor health – political/economic/security situation in home country – Ministerial intervention requested – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 65, 338(2), 347(1), 359(2), 376
Migration Regulations 1994 (Cth), r 1.12AA, Schedule 2, 850.212(1), (3), 850.311
CASES
Chung [2001] MRTA 756
Dimitrievska [2000] MRTA 4042
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 19 April 1999 to refuse to grant the visa applicants Resolution of Status visas within the two classes: Class UH (Subclass 850) and Class BL (Subclass 851) under s 65 of the Migration Act 1958 (Cth) (the Act).
The Departmental decision was renotified in 2020.
The first named review applicant (Mr Rimon Khazen Boutros) applied for the visa on 10 February 1998. The delegate refused to grant the visa on the basis that the (3) applicants were ineligible for the grant to them of Resolution of Status visas in Subclasses 850 and 851.
On 10 August 2022 the Tribunal issued an Invitation pursuant to s.359(2) of the Act as follows:
INVITATION TO PROVIDE INFORMATION – MR RIMON KHAZEN BOUTROS, MR EID KHAZEN BETROS AND MR MTANIOS BOUTROS
I am writing on instruction from the Member conducting your review, in relation to the applications for review made by you in respect of decisions to refuse to grant Resolution of Status (Class CD) visas.
You are invited to provide the following information in writing:
·Are the three applicants residing at the same address together?
·Are any of the three applicants studying or working? If so, what are they engaged in?
·A s.438 certificate was initially applied to the applicants’ file on 19/02/2021. This was later replaced by a s 376 certificate issued on 15/06/2022 (attached). You are invited to provide feedback on the application of a s 376 certificate - the conditions of which affected the release of information under s 362A.
The applicants responded to the s.359(2) Invitation as follows:
Thank you for your correspondence of 10 August 2022 inviting to provide information.
1. We continue to reside at the same address.
2.No other family members or relatives subsequently married, partnered, re- married or re-partnered.
3.Rimon and Eid are now working in demolition and excavation. Mtanios is working as handyman.
4.As to the certificate 376 while your letter says that it was attached, we are unable to provide feedback as we have not received the certificate. Appreciate if you can forward it.
Another important issue is the fact that our mother Malake Boumina is very sick and her health deteriorated badly and we submit her medical report to be considered on compassionate grounds.
We look forward to hear from you again and strongly hope that the honourable Member take into account that we are now integrated and since we came to Australia we did not depart the country.
Boutros Brothers 6 September 2022
Case number 2016414
The response to the s.376 Certificate was as follows:
Administrative Appeals Tribunal
Thank you for your correspondence and invitation to comment on the validity of certificate.
We understand that the information contained in the documents should not be disclosed to the review applicant because they contain material provided to the Department in confidence.
Frankly speaking we do not know what is involved and for that reason we are unable to comment unless the Department or the Tribunal put the information to us in writing.
We believe that our review was legitimate, but we are not in a position at this stage to provide comment on information not known to us.
The applicants appeared before the Tribunal on 8 September 2022 and on to give evidence and present arguments. The Tribunal also received oral evidence from their Australian citizen brother - Chalita Boutros. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic (Lebanese) and English languages.
Following the hearing the applicants were invited to provide additional information pursuant to the guidelines for a Request for Ministerial Intervention.
The applicants subsequently provided the requested information. This information included the following:
·A letter of support for the applicants from Bishop Tarabay of the Lebanese Maronite Catholic Church.
·Country information on the current political, economic and security situation in the Lebanon which could prevent safe return of the brothers to their homeland.
·Evidence of the ‘carer’ activities of the brothers performed for their elderly mother due to her poor health
·Evidence of their mother’s dependence on the applicants and utility bills.
·2 x Statutory Declarations from the applicants’ Australian citizen brother - Chalita Boutros.
·Identity documents for the brothers.
·Evidence of qualifications
- A statutory declaration outlining how the Australian citizen or permanent resident will suffer ongoing and irreversible harm and continuing hardship, and any reasons why the applicants cannot apply for a visa from outside Australia
A further Invitation pursuant to s.359 was sent to the parties on 10 February 2023 as follows:
INVITATION TO COMMENT ON OR RESPOND TO INFORMATION AND TOPROVIDE INFORMATION – MR RIMON KHAZEN BOUTROS, MR EID KHAZEN BETROS AND MR MTANIOS BOUTROS
I am writing on instruction from the Member conducting your review, in relation to the applications for review made by you in respect of decisions to refuse to grant Resolution of Status (Class CD) visas.
Invitation to comment on or respond to information
In conducting the review, we are required by the Migration Act 1958 to invite you tocomment on or respond to certain information which we consider would, subject toyour comments or response, be the reason, or a part of the reason, for affirming thedecisions under review.
Please note, however, that we have not made up our mind about the information.
The particulars of the information are:
·The Tribunal notes that there were (in the present case) two visa applications and two refusal decisions of the Subclass 850 and 851 applications. On their review application forms, the applicants appear to have applied for review in respect only of the Subclass 851 visa. This is despite never having held a temporary Subclass 850 visa.
This information is relevant to the review because, if true, this failure would preclude them from meeting the requirements for the grant of a permanent Subclass 851 visa.
If we rely on this information in making our decision, we may decide to affirm the decision under review.
You are invited to give comments on or respond to the above information in writing.
Invitation to provide information
You are also invited to provide the following information in writing:
·Please clarify for the Tribunal if the applicants have sought review of the Subclass 850 application or the Subclass 851 application.
The applicants responded to the Invitation as follows:
On 10 February 1998 each of the brothers Rimon, Mtanios and Eid Boutros separately applied for Class UH subclass 850 Resolution of Status (Temporary) and Class BL subclass 851 Resolution of Status (Residence) visas.
I have not seen the visa applications, but at the time I understand that an application for a Class UH visa had to be made at the same time and at the same place as the Resolution of Status (Residence)(Class BL). I assume therefore that the applications for both visas were made by each brother at the same time and same place.
On19 April 1999 the delegate refused both visas for each of the brothers. A single decision record was made incorporating both decisions.
By Letter dated 20 October 2020 the department advised that the refusal of the subclass 851 visa had been incorrectly notified. The delegate’s decision in relation to both the subclass 850 and subclass 851 visas was then re-notified to each brother, and they were advised that they had 21 days in which to seek review in the AAT.
On 9 November 2020 each brother filed an application in the AAT. Application for Rimon Khazen Boutros – given the case number 2016414 Application for Mtanios Boutros – given the case number 2016415 Application for Eid Khazen Betros – given the case number 2016416
On Thursday, 12 November 2020 the Tribunal consolidated the applications. The joined matters have been proceeding together before the Tribunal.
On 10 February 2023 the Tribunal wrote to the brothers advising:
·The Tribunal notes that there were (in the present case) two visa applications and two refusal decisions of the Subclass 850 and 851 applications. On their review application forms, the applicants appear to have applied for review in respect only of the Subclass 851 visa. This is despite never having held a temporary Subclass 850 visa. This information is relevant to the review because, if true, this failure would preclude them from meeting the requirements for the grant of a permanent Subclass 851 visa.
The Tribunal sought information as follows:
·Please clarify for the Tribunal if the applicants have sought review of the Subclass 850 application or the Subclass 851 application.
The applicants’ solicitor response to the Invitation as follows:
Dear Member
Thank you for the invitation to clarify for the Tribunal if the applicants have sought review of the Subclass 850 application or the Subclass 851 application.
Each applicant is seeking review of both decisions.
Each decision is reviewable by the Tribunal (s 338(2) of the Migration Act).
The decision of the delegate in relation to each of the subclass 850 and 851 applications is made in the same document.
The Tribunal on other occasions has conducted a simultaneous review of both decisions in these circumstances (see eg: Dimitrievska, Emilija [2000] MRTA 4042 (13 December 2000) Chung, Yuk Kuen [2001] MRTA 756 (28 February 2001).
In his application to the Tribunal Mtanios has expressly identified both decisions.
Although the applications to the Tribunal by Rimon and Eid only refer to subclass 851 their intention was for both decisions to be reviewed. This is confirmed by the fact that they attached the decision of the delegate for both the subclasses to their applications.
Section 347(1) of the Act only requires that the application to the Tribunal be made on the prescribed form. It is submitted that there is no precondition to the Tribunal’s jurisdiction that the applicant on the application form identify all the decisions that they require review of. From which decisions review is being sought can be determined by the Tribunal assessing all the surrounding circumstances. In the present case where 2 decisions are communicated in a single document and that document is supplied as the document being reviewed, then absent a clear indication to the contrary, the application should be taken to be an application to review both those decisions. Mtanios has expressly identified both decisions. It is contended that neither Rimon or EId has clearly indicated that they do not seek review of the subclass 850 decision - and it would be illogical for them not to seek such a review as it would mean their application to review the subclass 851 decision must fail.
David Godwin
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the applicants are eligible for the grant of Resolution of Status visas in Subclasses 850 and 851.
At the time of application, item 1216A of Schedule 1 stated that an application for the temporary Resolution of Status (ROS) visa (the Subclass 850) must be made at the same time and place as the permanent ROS visa (the Subclass 851). That is, there were two visa applications and two refusal decisions (of the Subclass 850 and 851). To this end, the Tribunal notes that, on their review application forms, the applicants appear to have applied for review in respect of the Subclass 851 visa only despite never having held the temporary Subclass 850 visa. This would preclude them from meeting the requirements for the grant of the permanent Subclass 851 visa. The Tribunal has clarified with the visa applicants following the second hearing whether they sought review of the Subclass 850 or 851. I suggest you make a clear finding on which decision the review applications relate (i.e., either the Subclass 850 or 851).
First Hearing
The applicant’s attended the hearing and their brother Chalita gave evidence particularly about the Boutros family. He indicated in answer to the Tribunal that there were around 150 members of the family living in Australia. The Boutros clan loved the country and had done everything possible to be good potential citizens. His brothers had acted similarly and had taken care of their aged mother and father.
The Tribunal ascertained that the brothers had remained in Australia for nearly 25 years as a result of their matter not being concluded by the Department. In the meantime, they had begun working and attracted the necessary tickets to perform skilled jobs needed in Australia. They had informed the Tribunal of their lives in the intervening years.
The Tribunal referred to the s.376 Certificate but informed that it had no adverse significance for the applicants.
The applicants informed that they wanted closure of the matter.
Mr Chalita Boutros asked that the family members stay in Australia as they had been here so long their hair had turned grey. They were only boys - there were no girls in the family.
The Tribunal said it appeared very difficult for the family to meet the criteria.
The Tribunal asked them why they came to Australia. The applicant said his brother had settled in Australia and his father came to visit and stayed and became a citizen during the amnesty in 1989. His mother also came over and he and his father made a family unit application and wanted to include their 12-year-old brother, but he was refused when he was actually eligible - like other families did at the time. Thus, the applicants’ father and mother are citizens. He was sponsored and he was a citizen. There were about 150 Boutros family members in Australia in total and over 1000 in the United States. They had behaved as model potential citizens since arrival.
The Tribunal indicated under the Ministerial Intervention Guidelines there was a category called ‘compelling and compassionate circumstances affecting the applicants’ that might impress the Minister. There was particularly the ill health of their mother. The strongest reason was the time that had lapsed since the beginning of the matter. There was also the political and economic situation in the Lebanon. This was public knowledge, and the Tribunal drew attention to a recent case of someone who was a model citizen holding up a bank to release funds for the medical care of his mother and sister. This event in the Lebanon identified this.
Mr Chalita Boutros insisted that the applicants could provide confirmation of their integrity from Maronite Catholic Bishop Tarabay and the community at large. The principal applicant said they knew Australia better than the Lebanon because they had been here so long. The Tribunal said it was very mindful of the longevity of the case and the fact it was still unresolved. It was probably the longest unresolved case the Tribunal has dealt with in its lengthy time at the Tribunal.
Mr Chalita Boutros said they did not need money from the Government such as Centrelink - they had their own business.
Second Hearing
The Tribunal was concerned with the confusion over the review applications encompassing Subclass 850 or only (as it appeared) Subclass 851. Meeting Subclass 850 is a condition precedent for meeting Subclass 851.The Tribunal decided to have a second hearing to clarify this crucial issue.
The Tribunal suggested that with the applicants being not formally represented they seek legal advice in regard to the Tribunal’s Invitation. They agreed to do so.
BACKGROUND:
The delegate’s decision record discloses that the primary review applicant’s (Rimon Khazen Boutros) visa history is as follows:
- 29 December 1995: Applicant granted a single travel sub-class 676 (visitor) visa valid for single travel until 05 April 1996 and stay of three (3) months on arrival.
- 10 January 1997: Applicant arrived in Australia.
- 05 May 1997: Applicant granted a multiple travel sub-class 686 (Visitor) visa valid for multiple travel and stay until 7 January 1997.
·[deleted]
·[deleted]
·10 February 1998: Applicant lodged application for Visa Class UH ROS. Granted Bridging C Visa.
The delegate’s decision record discloses that the second named applicant’s (Mtanios Boutros) visa history is as follows:
·29 December 1995: Granted a single travel sub-class 676 (visitor) visa valid for single travel until 05 April 1996 and stay of three (3) months on arrival.
·19 January 1996: Applicant arrived in Australia.
·18 April 1996: Granted a multiple travel sub-class 686 (visitor) visa valid for multiple travel and stay until 7 January 1997.
·[deleted]
·[deleted]
·[deleted]
·10 February 1998: Applicant lodged application for Visa Class UH ROS. Granted Bridging C Visa.
·[deleted]
The delegate’s decision record discloses that the third named applicant’s (Eid Khazen Betros/Boutros) visa history corresponds exactly with his (above) brother, Mtanios.
RELEVANT LEGISLATION MIGRATION REGULATIONS
Visa Class - UH ROS (TEMPORARY) Subclass - 850 ROS (TEMPORARY)
850.21 Criteria
PERTINENT MIGRATION REGULATIONS
Visa Class - UH ROS (TEMPORARY) Subclass - 850 ROS (TEMPORARY)
850.21 Criteria to be satisfied at time of application
850.211 If:
(a) the applicant:
(i) was in Australia on 1 September 1994; and (ii) was, immediately before 1 September 1994, a person to whom section 37 of the Act as in force immediately before that date applied; and (iii) has not been granted a substantive visa on or after 1 September 1994; or (b) the applicant is a person to whom section 48 of the Act applies; the applicant has not been refused a visa, or had a visa cancelled, under section 501 of the Act.
From the arrival information found in the delegate’s decision (located on the Tribunal file) the Tribunal finds the first named applicant did not meet the criterion in cl.850.211. The Tribunal finds that the other applicants do not meet the criterion either.
850.212 (1)
The applicant entered Australia, as the holder of:
(a)a valid passport of a country mentioned in subclause (3); and
(b) an entry permit or an entry visa that had effect as an entry permit.
(2) The applicant so entered Australia on or before the date specified in subclause (3) in relation to that country.
(3) The countries and dates mentioned in subclauses (1) and (2) are as follows:
(a) Iraq - 31 October 1991;
(b) Kuwait - 31 October 1991;
(c) Lebanon - 30 November 1991;
(d) PRC - 1 November 1993;
(e) Sri Lanka - 1 November 1993;
(f) Socialist Federal Republic of Yugoslavia - 1 November 1993;
(g) Federal Republic of Yugoslavia - 1 November 1993;
(h) Former Yugoslav Republic of Macedonia - 1 November 1993;
(i) Republic of Bosnia and Herzegovina - 1 November 1993;
(j) Republic of Croatia - 1 November 1993;
(k) Republic of Slovenia - 1 November 1993.
The Tribunal finds that the Departmental records show that the first named applicant first entered Australia on 19 January 1996. Therefore, the first named applicant did not meet this criterion. The other applicants likewise do not meet the criterion in 850.212(1).
850.213
Immediately before the date when the applicant entered Australia as mentioned in clause 850.212, the applicant was a citizen of the country the government of which issued the passport, and was usually resident:
(a)if the applicant was a citizen of Iraq - in Iraq; or
(b) if the applicant was a citizen of Kuwait - in Kuwait; or
(c) if the applicant was a citizen of Lebanon - in Lebanon; or
(d) if the applicant was a citizen of PRC - in PRC; or
(e) if the applicant was a citizen of Sri Lanka - in Sri Lanka; or
(f) if the applicant was a citizen of:
(i) the Socialist Federal Republic of Yugoslavia; or
(ii) the Federal Republic of Yugoslavia; or
(iii) the Former Yugoslav Republic of Macedonia; or
(iv) the Republic of Bosnia and Herzegovina; or
(v) the Republic of Croatia; or
(vi) the Republic of Slovenia – or in a place that, on 19 June 1991, formed part of the Socialist Federal Republic of Yugoslavia.

The Tribunal finds that all three applicants were citizens of the country (Lebanon), the government of which issued their passports, and in which country they were usually resident as of 30 November 1991.
The Tribunal finds that all the applicants meet the criterion in 850.213.
850.214(1)
The applicant was in Australia for a period that is, or for periods that total, not less than 90% of the period that began on a date when the applicant entered Australia as mentioned in clause 850.212 and ended on the date of the making of the application.
(2) For the purposes of subclause (1), where the applicant was not in Australia for 90% of the period, the Minister may include periods when the applicant was outside Australia if:
(a) the applicant has maintained close business, cultural or personal ties in Australia; and
(b) the Minister is satisfied that compelling or strongly compassionate circumstances exist that explain why the applicant was outside Australia during those periods.
The Tribunal finds that all the applicants met the criterion in cl.850.214(1).
850.215
On 13 June 1997:
(a)the applicant was in Australia; or
(b)the applicant was outside Australia and was the holder of a visa that was in effect and permitted the applicant to travel to and enter Australia.
The Tribunal finds that all the applicants met this criterion.
850.216
The applicant is not the holder of a Diplomatic (Temporary) (Class TF) visa or a transitional (temporary) visa that the applicant is taken to hold because the applicant, before 1 September 1994, held, or applied for:
(a) a diplomatic (code number 995) visa under the Migration (1989) Regulations; or
(b) a Class 995 (Diplomatic) visa under the Migration (1993) Regulations.
The Tribunal finds that the applicants met this requirement.
850.217
If 2 or more persons have made a combined application as mentioned in paragraph 1216A(3)(1) of Schedule 1, the applicant is 18 years or more.
The Tribunal finds that the applicants met this requirement.
850.3 SECONDARY CRITERIA
850.31 Criteria to be satisfied at time of application.
850.311 The applicant is:
(a) a member of the immediate family of a person ('the principal person') who:
(i) has made an application for a Resolution of Status (Temporary) (Class UH) visa mentioned in paragraph 1216A(3)(a) of Schedule 1; and
(ii) on the basis of the information provided in that application, appears to satisfy the criteria in Subdivision 850.21; or
(b) a dependent child of the spouse of the principal person, being a spouse who is an applicant for a Resolution of Status (Temporary) (Class UH) visa.
The definition of "member of the immediate family" in the Migration Regulations states:
Reg 1.12AA. "For these Regulations, a person 'A' is a member of the immediate family of another person 'B' if:
(a) A is a spouse of B; or
(b) A is a dependent child of B; or
(c) A is a parent of B, and B is not 18 years or more."
"dependent child"
means the natural or adopted child of a person (other than a child who is a spouse or engaged to be married), being a child:
(a) who:
(i) has not turned 18; and
(ii) is wholly or substantially in the daily care and control of that person; or
(b) who:
(i) has turned 18; and
(ii) is dependent on that person; or
(c) who is wholly or substantially incapacitated for work because of a disability of a kind referred to in paragraphs (a) to (g) of the definition of "disability" in subsection 4 (1) of the Disability Discrimination Act 1992
"dependent"
in relation to a person, means wholly or substantially dependent on another person for financial, psychological or physical support;
In a letter dated 31 July 1998 the applicant's father, Khazen Boutros, stated that the applicant:
·is physically dependent on his father as they live under the same roof.
·lived with his mother in Lebanon and was receiving financial assistance from his father and brother prior to his arrival in Australia.
·emotionally, psychologically and financially dependent on his father.
·was an apprentice learning a trade in Lebanon before arrival in Australia.
·he received pocket money of about $5 per day to cover his travelling costs and food whilst learning his trade in Lebanon.
On 24 August 1998 the applicant was requested to provide evidence of his dependency on his father. The delegate found that the documentation provided did not support his claim that he is psychologically or emotionally dependent on his father. The delegate was not satisfied that the applicant was emotionally or psychologically dependent on his father.
The applicant has provided four (4) statutory declarations to the Department and which state that the applicant has received an apprenticeship and has been working with his brother (Chalita Boutros) since his arrival in Australia.
The delegate found that as the applicant has been/is currently employed, even though he resides with his parents, he was not wholly or substantially financially dependent on his father.
The applicants have further informed the Tribunal of their contemporary employment status as the following:
·Rimon and Eid are now working in demolition and excavation. Mtanios is working as handyman.
850.312
The applicant:
(a) was, on 13 June 1997, a member of the immediate family of the principal person; or
(b) became a dependent child of the principal person after that date; or
(c) was, on 13 June 1997, a dependent child of the spouse of the principal person.
The delegate found that the applicants had failed to meet the criterion in regulation 850.311.
The applicant had made (or was taken by regulation 2.08B to have made) a combined application with the principal person.
The Tribunal finds that the second and third named applicants do not meet the criterion at time of decision.
850.314
The applicant is not the holder of a Diplomatic (Temporary) (Class TF) visa or a transitional (temporary) visa that the applicant is taken to hold because the applicant, before 1 September 1994, held, or applied for:
(a) a diplomatic (code number 995) visa under the Migration (1989) Regulations; or
(b) a Class 995 (Diplomatic) visa under the Migration (1993) Regulations.
The Tribunal finds that the applicants met this criterion.
"Regulation 2.04. Circumstances in which a visa may be granted (Act, s.40)
2.04. For the purposes of section 40 of the Act, and subject to these Regulations, the only circumstances in which a visa of a particular class may be granted to a person who has satisfied the criteria in a, relevant Part of Schedule 2 are the circumstances set out in that Part of Schedule 2."
"Circumstances for granting visas s.40.(1)
The regulations may provide that visas or visas of a specified class may only be granted in specified circumstances.
(2) Without limiting subsection (1), the circumstances may be that, when the person is granted the visa, the person:
(a) is outside Australia; or
(b) is in immigration clearance; or
(c) has been refused immigration clearance and has not subsequently been immigration cleared; or
(d) is in the migration zone and, on last entering Australia: was immigration cleared; or
(ii) bypassed immigration clearance and had not subsequently been immigration cleared."
"Section 65. Decision to grant or refuse to grant visa
65. (1) After considering a valid application for a visa, the Minister:
(a) if satisfied that:
(i) the health criteria for it (if any) have been satisfied; and
(ii) the other criteria for it prescribed by this Act or the regulations have been satisfied; and
(iii) the grant of the visa is not prevented by section 40 (circumstances when granted), 501 (special power to refuse or cancel) or any other provision of this Act or of any other law of the Commonwealth; and
(iv) any amount of visa application charge payable in relation to the application has been paid;
is to grant the visa; or
(b) if not so satisfied, is to refuse to grant the visa."
At the time of application, the applicant is required, by Migration Regulation 2.04 and Section 40 of the Migration Act 1958 (as amended), to satisfy the requirements of Migration Regulation 850.
The Tribunal concludes that (from the information provided by the applicants) it is satisfied that the applicants did not arrive in Australia before 1 November 1993 nor were they a member of the immediate family on 13 June 1997.
The Tribunal is satisfied that as the applicants did not satisfy the requirement of Migration Regulation 850.212(3) and 850.312, they are not eligible for the grant of a visa of this sub-class.
Thus, the applicants have failed to satisfy essential criteria for visa in this sub-class and as a result do not meet the essential criteria for a Subclass 851 for a Resolution of Status visa.
The Tribunal finds on review that the applicants do not meet the criterion for Resolution of Status Visas in either of Subclasses 850 & 851.
Ministerial Intervention Request
In view of the length of time the applicants had to wait for the outcome of the Tribunal review (24 years) - and other factors elaborated in the hearing - the Tribunal offered to seek Ministerial Intervention on behalf of the applicants. It did so after examining the Ministerial guidelines.
Documents to support the Ministerial Intervention Guidelines were sought from the parties who have provided same.
DECISION
The Tribunal has concluded that the decision under review should be affirmed.
Michael Cooke
Senior Member

[2023] AATA 2235

21 June 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice