Kaur (Migration)

[2020] AATA 4385

Kaur (Migration) [2020] AATA 4385 (22 October 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Harpreet Kaur
Mr Arwinder Singh

CASE NUMBER:  2008549

DIBP REFERENCE(S):  BCC2020/1442609

MEMBER:Kira Raif

DATE:22 October 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicants the Confirmatory (Residence) (Class AK) visas.

Statement made on 22 October 2020 at 2:14pm

CATCHWORDS
MIGRATION – Confirmatory (Residence) (Class AK) visa – Subclass 808 (Confirmatory) – prescribed visa not held at time of visa application – consent to decision without hearing –some issue of fraud in relation to earlier visa application – one Australian citizen child and another born here – referred for ministerial consideration – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 351
Migration Regulations 1994 (Cth), 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 8 May 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 applicants applied for the visa on 23 April 2020. The delegate refused to grant the visa on the basis that the applicants did not meet cl. 808.211 because the applicants did not hold a prescribed visa. The applicants seek review of the delegate’s decision.

3. On 6 October 2020 the Tribunal wrote to the applicants advising that it had considered all the material before it relating to their application but it was unable to make a favourable decision on that information alone. The Tribunal invited the applicants to give oral evidence and present arguments at a hearing on 27 October 2020. On 22 October 2020 the applicants advised the Tribunal that they 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 them to appear before it. This matter has therefore been determined on the evidence available to the Tribunal.

   Relevant law

4. 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?

5. 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 the holder of Bridging visas.

6. There is no evidence before the Tribunal that at the time of the application, or at any other time, the applicants held Resident Return, Emergency (Temporary), Border (Temporary) visas or the Class 301 (Australian requirement) entry permit or visa. The applicant concedes that she cannot meet the requirements for the grant of the visa.

7. 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.

8. The applicant has 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. The Tribunal acknowledges that the applicant has been living in Australia for a number of years and is settled here. The Tribunal acknowledges the applicant’s evidence concerning the fraud in relation to her earlier visa application.  The Tribunal acknowledges a number of supporting statements that have been presented to the Tribunal. In the Tribunal’s view, none of these matters fall within the Ministerial guidelines. However, the applicant does have an Australian citizen child and another child who was born in Australia. The applicant’s responsibilities in relation to her Australian citizen child do constitute, in the Tribunal’s view, compassionate circumstances. 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 will refer the matter to the Department.

   Conclusions                   

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

   DECISION

10. The Tribunal affirms the decision not to grant the applicants the Confirmatory (Residence) (Class AK) visas.

    Kira Raif
    Senior Member