Kimbu (Migration)

[2020] AATA 5932

Kimbu (Migration) [2020] AATA 5932 (4 November 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr David Mutie Kimbu
Ms Mary Chepkurui Mutie
Master Joel Siongok Mutie
Master Noel Kimbu Mutie

CASE NUMBER:  2011705

DIBP REFERENCE(S):  BCC2020/1748241

MEMBER:Kira Raif

DATE:4 November 2020

PLACE OF DECISION:  Sydney

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

Statement made on 04 November 2020 at 11:16am

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– 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 2 July 2020 to refuse to grant the visa applicants Confirmatory (Residence) (Class AK) Subclass 808 visas under s.65 of the Migration Act 1958 (the Act).

2. The visa applicants applied for the visas on 11 June 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 7 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.

4. The applicants were represented in relation to the review by their registered migration agent. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   Relevant law

5. 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?

6. When making the application for review, the applicants provided to the Tribunal a copy of the primary decision record. It indicates that at the time the application was made, the first named applicant was a holder of a Student visa.

7. 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 Tribunal is not satisfied that the applicants ever held any of the visas or entry permits prescribed in cl. 808.211. The Tribunal is not satisfied that the applicants meets cl. 808.211. They do not meet the secondary criteria for visa grant.

8. 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. The applicants refer to the contribution they can make to Australia and provided a number of supporting statements and other evidence. The Tribunal has considered the applicants’ case and the ministerial guidelines relating to the discretionary power set out in the Department’s Procedures Advice Manual (PAM3) but has decided not to refer the matter. The Tribunal notes that the applicants can still make a request directly to the Minister.

   Conclusions                   

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

   DECISION

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

    Kira Raif
    Senior Member