Bovenberg (Migration)

[2023] AATA 4167

Bovenberg (Migration) [2023] AATA 4167 (1 December 2023)

DECISION RECORD

DIVISION:  Migration & Refugee Division

APPLICANT:  Mr Timo Bovenberg

CASE NUMBER:  2105079

HOME AFFAIRS REFERENCE(S):           BCC2021/456004

MEMBER:  Simone Burford

DATE:  1 December 2023

PLACE OF DECISION:  Perth

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

Statement made on 01 December 2023 at 2:49pm

CATCHWORDS

MIGRATION – Confirmatory (Residence) (Class AK) visa – Subclass 808 (Confirmatory) – holder of a specified substantive temporary visa – present in Australia at the COVID-19 border closures – request for Ministerial intervention – pending Partner visa application – unique or exceptional circumstances – unfairly subject to Public Interest Criteria 4014 – decision under review affirmed    

LEGISLATION

Migration Act 1958, ss 65, 351
Migration Regulations 1994, Schedule 2, cls 808.211, 808.212, 808.213; Schedule 4, Public Interest Criteria 4014

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 Home Affairs on 9 April 2021 to refuse to grant the visa applicant a Confirmatory (Residence) (Class AK) Subclass 808 visa under s 65 of the Migration Act 1958 (Cth) (the Act).

1. The visa applicant applied for the visa on 26 March 2021.

1. The delegate refused to grant the visa on the basis that the applicant did not meet the criteria for the visa at the time of application.

1. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed. The Tribunal has decided not to refer the matter for consideration of Ministerial intervention.

Background

1. The applicant is a Dutch national who was born in Vlaardingen, the Netherlands in 1992. The applicant last arrived in Australia on 8 January 2020 on a Bridging B visa (subclass 020).

1. He initially arrived in Australia in November 2016 on a Working Holiday (subclass 417) visa. He applied for an extension of the Working Holiday (subclass 417) visa and this was granted on 30 October 2017 valid until October 2018.

1. Submissions indicated that during this period he met an Australian citizen with whom he entered into a de facto relationship. He lodged a combined Partner visa application on 18 October 2018. The applicant was then on a series of Bridging visas pending the outcome of his Partner visa application.

1. The relationship later broke down and sponsorship was withdrawn. The partner visa application was withdrawn in April 2020.

1. The applicant applied for and was granted a working holiday visa for New Zealand on 16 March 2020. The visa required that he arrive in New Zealand prior to 21 March 2021. However, due to COVID-19 border closures he was unable to depart Australia for New Zealand.

1. On 10 June 2020 he was granted a Bridging E visa (subclass 050). He has been on ‘rolling’ Bridging E visas since that date.

1. On 26 March 2021 the applicant applied for a Confirmatory (Residence) (Class AK) Subclass 808 visa (the Confirmatory Residence visa) and this application was refused on 9 April 2021. That is the application for which the applicant has sought review to the Tribunal.

1. The applicant told the Tribunal that on 29 November 2023 (the day prior to the hearing) he made an application for a Combined Partner (820/801) visa. He was granted an associated Bridging E visa (subclass 050). That Partner visa application is yet to be determined by the Department.

Review

1. The applicant appeared before the Tribunal on 30 November 2023 to give evidence and present arguments. He was accompanied by his partner, Ms Hana Akalani Smythe, an Australian citizen.

1. The applicant was represented in relation to the application for the visa and on application to the Tribunal for review, however he was no longer represented at the time of the hearing.

1. The applicant’s representative made written submissions on 16 October 2023 and provided the following documents in support of the application:

   ·Screen shot of a letter of support from anonymous sender

·Statutory declaration from Emily Georgia Wood-Trouance dated 19 March 2021

·Statutory declaration from Nicole Barraclough dated 19 March 2021

·Statutory declaration from Rukmal Se Silva dated 18 March 2021

·Statutory declaration from Jennifer Wilson dated 19 March 2021

·Statutory declaration of Liam Patrick Sierakowski undated

·Statutory declaration from Gavriel Olshansky dated 24 March 2021

·Screenshot of immigration account

·Statutory declaration from Roberto Figueroa dated 14 October 2023

1. The applicant’s then representative made written submissions to the Department as follows:

1. In the visa application submission, the migration agent attached a covering letter dated 25 March 2021 stating, amongst other things, the following:

   At the outset, we acknowledge that Timo does not meet the eligibility criteria for the grant to him of a Confirmatory (Residence) (subclass 808) visa as set out in schedule 2 of the Regulations. This application is being made by Timo due to compelling circumstances as he has no other visa options available to him. Timo is making this application with a view to seeking a review of the refusal decision by the administrative appeals Tribunal and thereafter, requesting the intervention of the Minister for Immigration, Citizenship and Multicultural Affairs under s351 of the Migration Act 1958 (Cth) (‘the Act’) to exercise his public interest powers to grant Timo a substituted Visitor (subclass 600) visa. We submit that Timo’s circumstances fall within the Minister’s guidelines for intervention in light of the unique and exceptional circumstances which he now finds himself in due to the unprecedented COVID-19 pandemic preventing him from departing Australia for New Zealand while holding a substantive visa, as a result of which he will be unfairly subject to PIC4014 for the next three years unable to return to Australia.

1. Submissions indicated the applicant was seeking Ministerial intervention due to ‘unique or exceptional circumstances’. At the time those submissions were made the applicant’s representative indicated he was seeking Ministerial intervention to be issued a Visitor (subclass 600) visa to e4nable him to depart Australia with a substantive visa and ‘leave open the opportunity to return at a future date to continue his valuable community projects and volunteer work’.

1. At the hearing the applicant told the Tribunal he had now applied for a Partner visa with his current partner as his sponsor. He has been granted an associated Bridging E visa (subclass 050). He did not press for referral to the Minister in light of his new Partner visa application which remains pending.

CRITERIA FOR THE VISA

1. A visa cannot be granted unless the relevant criteria specified in the Act and the Migration Regulations (Cth) (the Regulations) are satisfied.

1. The criteria for a Confirmatory (Residence) (Class AK) (subclass 808) visa are set out in cl 808 of the Regulations. According to cl 808.21 at the time of application the applicant must satisfy the following criteria:

   (a)  clauses 808.211 and 808.212; or

(b) clause 808.213 (which applies to some former holders of Norfolk Island immigration permits)

1. Clause 808.211 requires that the applicant is:

   (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.

1. Clause 808.212 requires that in the case of an applicant who is the holder of a Subclass 302 visa, all members of the family unit of the applicant satisfy the public interest criteria applicable to them.

1. Clause 808.213 provides:

(1)  This clause applies if paragraph 1111(2A)(b), (c) or (d) of Schedule 1 covers the application.

Note: Paragraphs 1111(2A)(b), (c) or (d) of Schedule 1 cover applications made on the basis of the former migration status under the Immigration Act 1980 (Norfolk Island) of the applicant or a parent of the applicant.

(2)  The application must be made before 1 January 2024, unless the Minister is satisfied that there are compelling reasons for granting the visa.

(3)  During a period of, or periods that total, not less than 5 years in the period of 7 years immediately before the application is made (including any period, or part of a period, before 30 June 2016), the applicant meets the requirements of subclause (4).

(4)  The applicant meets the requirements of this subclause during any period or periods while:

(a)  the applicant is (or has been) lawfully present in Norfolk Island; or

(b) the applicant is (or has been) lawfully present in a place elsewhere in Australia, and:

(i)  has not turned 25; and

(ii)  is a dependent child of a person who is ordinarily resident in Norfolk Island; and

(iii)  lives (or has lived) in that place for the purpose of study; and

(iv)  while living there, meets (or met) the requirements mentioned in condition 8105 (which relates to students engaging in work).

Note 1: An applicant can meet the requirements of subclause (4) by a combination of periods to which either paragraph (4)(a) or (4)(b) applies, if the total duration of that combination of periods amounts to not less than 5 years.

Note 2: Condition 8105 is not imposed on the visa.

CONSIDERATION

1. The applicant did not contend that he meets the criteria for a Confirmatory Residence visa. This was consistent with the submissions made by his prior representative and the information before the Tribunal.

1. As noted earlier, cl 808.211 requires that, at the time of application, the applicant is a holder of a Resident Return (Temporary) (Class TP) visa, an Emergency (Temporary) (Class TI) visa, a Border(Temporary)(Class TA) visa, or a Class 301 (Australian requirement) entry permit or visa granted under the Migration (1993) Regulations.

1. The information before the Tribunal is that the applicant held a Bridging E visa (subclass 050), at the time of application. Accordingly, cl 808.211 for the Confirmatory Residence visa is not met by the applicant. As cl 808.211 is not met, it follows that the applicant does not meet subclause 808.211A(a). Therefore, cl 808.212 does not apply to the applicant.

1. Consistent with immigration records and the evidence the applicant gave at the hearing, the applicant also does not meet any of the subclauses in cl 808.213 relating to Norfolk Island. As such, the applicant fails to meet cl 808.213.

1. As the applicant did not satisfy cls 808.211 and 808.212, or 808.213 at the time of application, he does not meet clause 808.211A. As clause 808.211A is not met, the Tribunal is satisfied that the time of application criteria have not been met by the applicant (subclause 808.21 of the Regulations).

1. As clause 808.21 of Schedule 2 of the Regulations is not met by the applicant, the Tribunal finds the criteria for the grant of a Confirmatory (Residence) visa are not met.

Referral to the Minister

1. The applicant initially requested that the Tribunal refer the case to the Department for consideration by the Minister pursuant to s.351 of the Act 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.

1. It was submitted that the applicant had been in Australia effectively since 2016 and that his circumstances were complicated by COVID-19 travel restrictions which prevented him leaving Australia for New Zealand to commence a Working Holiday visa there while still the holder of a substantive visa in Australia. It was submitted that the applicant would be unfairly the subject of a PIC4014 return ban if he left Australia on a Bridging visa.

1. At the hearing the applicant confirmed he had an Australian citizen partner and had made an application for a Partner visa prior to the hearing. That application is awaiting determination with the Department.

1. The information before the Tribunal suggests that visa pathways remain open to the applicant, including through his current Partner visa application.

1. This was discussed with the applicant at the hearing. He did not press for referral to the Department, noting his Partner visa application was to be determined and he had been granted an associated Bridging E visa.

1. 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) and does not consider it appropriate to refer the matter to the Department at this time.

DECISION

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

Simone Burford Senior Member