Hall (Migration)

[2018] AATA 2077

Hall (Migration) [2018] AATA 2077 (14 June 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Jennifer Louise Hall

CASE NUMBER:  1722430

DIBP REFERENCE(S):  BCC2017/2305353

MEMBER:Helena Claringbold

DATE:14 June 2018

PLACE OF DECISION:  Sydney

DECISION:     The Tribunal affirms the decision under review.

Statement made on 14 June 2018 at 3:06pm

CATCHWORDS
Migration – AK- Confirmatory (Residence) (Class AK) – Subclass 808 (Confirmatory) – Currently a holder of a Student (TU-500 visa) – Intends to remain permanently – Ability to contribute to Australian society – Does not meet the visa requirements – Decision under review affirmed

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2 cl 808.211

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. On 13 June 2017, Miss Jennifer Louise Hall, applied for a Confirmatory (Residence) (Class AK) Subclass 808 visa.

2. On 14 September 2017, the delegate refused to grant the visa. The refusal was based on the applicant not satisfying cl.808.211 of Schedule 2 of the Migration Regulations 1994 (the Regulations).

3. The Tribunal invited the applicant to appear before it on 28 June 2018 to give evidence and present arguments. The applicant provided the Tribunal with a copy of the delegate’s decision record.  On 21 May 2018, the applicant informed the Tribunal that, she wanted a decision to be made on the papers.  The Tribunal will proceed to make a decision on the papers.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The Tribunal has taken into consideration all the evidence in the Department of Immigration and Border Protection’s case file and the Tribunal’s case file.

   ISSUE

6. The issue in the present case is whether the applicant meets the criteria for a Confirmatory (Residence) (Class AK) Subclass 808 visa.

   CLAIMS AND FINDINGS

7. Cl.808.211 of Schedule 2 to the Regulations determines that, to meet the requirements for the grant of the visa 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.

8. At time of application, the applicant, was the holder of a Student (TU-500 visa), valid until     15 March 2019. As detailed in the delegate’s decision record, the applicant, declared that she intends to remain in Australia permanently and has applied for the visa, on the advice of a migration agent. She stated that, she is aware that she does not meet the criteria for the grant of the visa, but decided to proceed with the visa application. Third party statements speak of the integrity of the applicant and of her ability to contribute to the Australian society. 

9. There is no evidence before the Tribunal that the applicant satisfies cl.808.211 of Schedule 2 to the Regulations. As the applicant does not satisfy cl.808.211 of Schedule 2 to the Regulations, the Tribunal has not gone on to consider the other criteria for the visa.

10. The applicant does not meet cl.808.211 of Schedule 2 to the Regulations and fails to satisfy the requirements for the grant of a Confirmatory (Residence) (Class AK) Subclass 808 visa.

    DECISION

11. The Tribunal affirms the decision under review.

    Helena Claringbold
    Member