LAM (Migration)

[2020] AATA 5873

LAM (Migration) [2020] AATA 5873 (9 November 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms THI HUYEN LAM

CASE NUMBER:  1816772

DIBP REFERENCE(S):  BCC2018/2257501

MEMBER:Kira Raif

DATE:9 November 2020

PLACE OF DECISION:  Sydney

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

Statement made on 09 November 2020 at 1:53pm

CATCHWORDS
MIGRATION – Confirmatory (Residence) (Class AK) visa – Subclass 808 (Confirmatory) – prescribed visa holder – last held a Visitor Class FA visa – sole carer of Australian citizen child – circumstances of marriage and partner’s death – Ministerial Intervention requested – 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 25 May 2018 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 applicant is a national of Vietnam, born in July 1985. She applied for the visa on 11 May 2018. The delegate refused to grant the visa on the basis that c. 808.211 was not met because the delegate was not satisfied the applicant held a prescribed visa at the time of the application. The applicant seeks review of the delegate’s decision.

3. On 7 October 2020 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 9 November 2020. On 6 November 2020 the applicant advised the Tribunal that she 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. This matter has therefore been determined on the evidence available to the Tribunal.

   Relevant law and defined terms

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 the applicant last held a Visitor Class FA visa which was valid until 31 October 2017.

6. There is no evidence before the Tribunal that at the time of the application, or at any other time, the applicant 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 applicant ever held any of the visas or entry permits prescribed in cl. 808.211. The Tribunal is not satisfied that the applicant meets cl. 808.211.

7. 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 applicant refers to being the sole carer for her Australian citizen child and the circumstances of her marriage and her partner’s death. 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                   

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

   DECISION

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

   Kira Raif
   Senior Member