Calau Sgambato (Migration)

[2020] AATA 6007

Calau Sgambato (Migration) [2020] AATA 6007 (30 November 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Etelvina Graciela Calau Sgambato
Mr Luiz Roberto Sgambato

CASE NUMBER:  2014141

DIBP REFERENCE(S):  BCC2020/2298813

MEMBER:Kira Raif

DATE:30 November 2020

PLACE OF DECISION:  Sydney

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

Statement made on 30 November 2020 at 5:16pm

CATCHWORDS

MIGRATION – Confirmatory (Residence) (Class AK) – Subclass 808 visa – applicant was not the holder of a prescribed visa– applicant was a holder of a Student visa –applicants have close family ties in Australia – decision under review affirmed

LEGISLATION

Migration Act 1958, 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 15 September 2020 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 10 September 2020. The delegate refused to grant the visa on the basis that the applicant did not meet cl. 808.211 because the applicant did not hold a prescribed visa. The applicant seeks review of the delegate’s decision.

3. The applicants appeared before the Tribunal on 16 November 2020 to give evidence and present arguments. The Tribunal also received oral evidence from the applicants’ daughter. The Tribunal hearing was conducted with the assistance of an interpreter in the Portuguese and English languages. The applicants were represented in relation to the review by their registered migration agent.

4. The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

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

   Relevant law

6. 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 applicant hold a prescribed type of visa at the time of the application?

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

8. There is no evidence before the Tribunal that at the time of the application, or at any other time, the applicant 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 applicant ever held any of the visas or entry permits prescribed in cl. 808.211. The Tribunal is not satisfied that the applicants meet cl. 808.211 and the secondary criteria for visa grant.

9. 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.

10. The applicants provided a statement to the Tribunal outlining the reasons for their travel to Australia, previous visa applications and their desire to remain in Australia. The applicants provided a number of documents to the Tribunal, including personal documents, photographic evidence of family functions and other evidence. The applicants provided a further substantial amount of material to the Tribunal on 16 November 2020. The applicants provided personal documents for other family members, copies of Tribunal decisions in relation to other family members and evidence relating to their own past visa applications, several letter of support and evidence of the family’s settlement in Australia. The Tribunal accepts that the applicants have close family ties in Australia, that they have been living in Australia for a number of years and prefer to remain in Australia. They contribute to the community and are supported by members of the community. In oral evidence the applicant said that they have been in Australia for ten years, they have raised the grandchildren and been part of the family and do not wish to separate. The parties spoke about the close relationship with the family, their migration as a family unit, the close relationship with the grandchildren from a very young age, as well as the applicants’ age and claimed lack of other visa options, as well as their contribution to the community. In the post-hearing submission the applicant also provided evidence of the close family relationship and the need for the family to stay together.  The Tribunal accepts the entirety of the evidence provided by the applicants.

11. The Tribunal has considered the applicants’ circumstances and the ministerial guidelines relating to the discretionary power set out in the Department’s Procedures Advice Manual (PAM3) but has formed the view that the applicants’ circumstances do not fall within such guidelines. The Tribunal has decided not to refer the matter. The Tribunal notes that the applicant can still make a request directly to the Minister.

    Conclusions                   

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

    DECISION

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

    Kira Raif
    Senior Member