Cameron-Le'Neveu (Migration)

[2017] AATA 2535

Cameron-Le'Neveu (Migration) [2017] AATA 2535 (8 August 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Claudia Sky Cameron-Le'Neveu

CASE NUMBER:  1704378

DIBP REFERENCE(S):  BCC2017/473666

MEMBER:R. Skaros

DATE:8 August 2017

PLACE OF DECISION:  Sydney

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

Statement made on 08 August 2017 at 10:47am

CATCHWORDS
Migration – Confirmatory (Residence) (Class AK) – Subclass 808 – Sponsorship not necessary – Seeking the Minister’s intervention – New Zealand citizen – Previously under the care of Family and Community Services

LEGISLATION
Migration Act 1958 ss 65, 66(2)(d)(iii), 351
Migration Regulations 1994 Schedule 2 cls 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 6 February 2017 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 22 December 2016. The delegate refused to grant the visa on the basis the applicant did not meet the primary requirements of cl.808.211 as she was not the holder of one of the visas specified.

3. An application for review must be made within the prescribed period. In this case, the delegate made the decision on 6 February 2017 and the applicant was notified by way of email. The last day to apply for review would have been 27 February 2017 however the notification in this case did not comply with the requirements in s.66(2)(d)(iii) of the Act as it incorrectly stated that the approved sponsor or sponsor seeking merits review that has standing to apply for review to the Tribunal. The visa the applicant applied for is not one that requires a sponsorship, in the circumstances, the Tribunal is satisfied that the decision was not validly notified and time to apply for review did not commence. The Tribunal is accordingly satisfied that it has jurisdiction in this matter.

4. The Tribunal wrote to the review applicant advising that it had considered all the material before it relating to her application but it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing on 7 August 2017. On 4 August 2017 the representative advised the Tribunal that the applicant did not wish to give oral evidence and consented to the Tribunal proceeding to make a decision on the review without taking any further action to allow or enable her to appear before it.

5. The representative advised the Tribunal that the applicant acknowledges that she is not able to meet the criteria for the grant of the subclass 808 Confirmatory visa and that the purpose of the application is to seek the Minister’s intervention under s.351 of the Act.

6. This matter has therefore been determined on the evidence available to the Tribunal.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether the applicant meets the requirement in cl.808.211 which requires the applicant to be the holder of a Resident Return (Temporary)(Class TP) visa, an Emergency (Temporary)(Class TI) visa, a Border (Temporary)(class TA) or a Class 301 (Australian requirement) entry permit or visa granted under the Migration (1993) Regulations.

9. In submissions to the Tribunal the applicant and a representative from the Department of Family and Community Services (FACS) advised that the applicant is a citizen of New Zealand who has been under the care of the Minister of Family and Community Services. It was submitted that FACS were supposed to apply for permanent residency on behalf of the applicant before she turned 18 but failed to do so due to an administrative oversight. It was submitted that the applicant wished to seek the Minister’s intervention and that she understands that she does not meet the requirements for the visa.

10. There is no evidence before the Tribunal to indicate that the applicant held any of the visas specified in cl.808.211. Consequently, the Tribunal finds that cl.808.211 is not met.

11. Given the above, the Tribunal affirms the decision under review.

    DECISION

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

    R. Skaros
    Member