Pathirage (Migration)

[2020] AATA 5986

Pathirage (Migration) [2020] AATA 5986 (23 November 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Undugoda Nilushi Darshani Pathirage
Mr Palinda Siriwardana Pathirannehelage

CASE NUMBER:  1927059

DIBP REFERENCE(S):  BCC2019/4417134

MEMBER:Kira Raif

DATE:23 November 2020

PLACE OF DECISION:  Sydney

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

Statement made on 23 November 2020 at 1:57pm

CATCHWORDS

MIGRATION – Confirmatory (Residence) (Class AK) – Subclass 808 visa – applicant was not the holder of a prescribed visa– applicant was a holder of a Graduate Work Stream 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 6 September 2019 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 visas on 28 August 2019. 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 prescribed visas when the application was made. The applicants seek review of the delegate’s decision. The applicants informed the delegate that they were aware that they could not meet the visa requirements and that he intended to seek Ministerial intervention.

3. The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

4. The applicants appeared before the Tribunal on 23 November 2020 to give evidence and present arguments. The applicant was represented in relation to the review by his 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 applicants were the holders of Subclass 485 Graduate Work Stream visas, which was valid until 2 September 2019.

7. In oral evidence, the applicant confirmed that their visas were due to expire and due to certain events which had affected her mentally, she was unable to extend the visa. The applicant confirmed that the main purpose of the application is to seek the Ministerial intervention.

8. 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.

9. The applicants provided to the Tribunal a number of medical and police reports. The Tribunal acknowledges that evidence and accepts the information contained in these reports. However, the Tribunal has no discretion to recommend the visa grant on the basis of the applicants’ circumstances.

10. 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 said that she came to Australia for a better life and has spent much effort and money to study in Australia. The applicant spoke about the effect that the events earlier described had on her life and well-being. The Tribunal accepts the applicant’s evidence. 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) but has decided not to refer the matter. The Tribunal notes that the applicant can still make a request directly to the Minister.

    Conclusions                   

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

    DECISION

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

    Kira Raif
    Senior Member