Njoku (Migration)

[2020] AATA 5935

Njoku (Migration) [2020] AATA 5935 (30 October 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ugonna Njoku

CASE NUMBER:  2013483

DIBP REFERENCE(S):  BCC2020/2034590

MEMBER:Kira Raif

DATE:30 October 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 30 October 2020 at 2:26pm

CATCHWORDS

MIGRATION – Confirmatory (Residence) (Class AK) – Subclass 808 visa – applicant was not the holder of a prescribed visa– applicant was a holder of a Bridging E visa– 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. This is an application for review of a decision made by a delegate of the Minister for Immigration on 19 August 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 applicant applied for the visa on 4 August 2020. The delegate refused to grant the visa on the basis that the applicant did not meet cl. 808.211 because the applicant did not hold a prescribed visa. The applicant seeks review of the delegate’s decision.

3. On 16 October 2020 the Tribunal wrote to the review applicant advising that it had considered all the material before it relating to his 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 25 November 2020. On 30 October 2020 the applicant advised the Tribunal that he 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 him to appear before it. This matter has therefore been determined on the evidence available to the Tribunal. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   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 applicant was a holder of a Bridging E visa.

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 concedes in his submission to the Tribunal of 30 October 2020 that he does not meet the requirements for the grant of the visa and indicates his intention to seek Ministerial intervention.

   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