Costa De Oliveira Neves (Migration)

[2019] AATA 3822

Costa De Oliveira Neves (Migration) [2019] AATA 3822 (31 July 2019)

WRITTEN STATEMENT OF DECISION

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Simone Costa De Oliveira Neves
Mr Jose Fernando Gomes De Oliveira

CASE NUMBER:  1830261

DIBP REFERENCE(S):  BCC2018/2291509

MEMBER:Nicholas McGowan

PLACE OF DECISION:  Melbourne

DATE:31 July 2019

DECISION:The applicant does not meet clause 808.211.

CATCHWORDS
MIGRATION – Confirmatory (Residence) (Class AK) visa – Subclass 808 (Confirmatory) – specified visa class holder – no valid visa at time of application – parents of an Australian-citizen child – Ministerial Intervention requested – decision under review affirmed

LEGISLATION
Migration Regulations 1994 (Cth), Schedule 2, cl 808.211

1. On 28 May 2018 the first named visa applicant (‘applicant’) applied for a Confirmatory (Residence) (Class AK) Subclass 808 visa. On 14 September 2018 a delegate of the Minister for Immigration refused to grant the applicant the visa. On 16 October 2018 the applicant appealed that refusal decision to this tribunal.

2. In the applicant’s submission of 29 July 2019 to this tribunal (folios 87-134), the applicant’s agent acknowledges the applicant does not meet the criteria for the grant of the 808 visa. The agent advises the visas were applied for in order to seek review of the delegate’s decision by this tribunal, and thereafter, appeal for Ministerial Intervention.

3. FINDING/S
   

   Relevantly, the applicant is required to meet clause 808.211, which specifies the type of visa held at the time of application. As the applicant held no visa at the time of application, as she was in Australia unlawfully, and satisfies none of the alternate subclauses, the applicant is unable to meet clause 808.211 (it also follows the secondary applicant is therefore unable to satisfy the criteria necessary for the grant of the visa). As the applicant has failed to satisfy a requisite criterion, this tribunal need not further consider the application. The applicant has nonetheless asked this tribunal to support an application for ministerial intervention.

4. MINISTERIAL INTERVENTION
   

   Given a child is involved, naturally, compassionate grounds exist that warrant consideration by the minister. Whether (when taking all the circumstances of the applicants’ case into account) they satisfy the minister he should intervene favourably, is a matter for him. It seems to this tribunal that it may be somewhat petulant to require the parents of an Australian citizen child to go offshore to progress future visa applications to stay in Australia given that Australian citizen’s rights and privileges afforded to him under Australian and international law (notwithstanding his parents delinquent migration history).

   Statement made on 31 July 2019 at 2:20pm