Pinilla Taborda (Migration)

[2020] AATA 5773

Pinilla Taborda (Migration) [2020] AATA 5773 (29 September 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Viviana Paola Pinilla Taborda

CASE NUMBER:  1835128

DIBP REFERENCE(S):  BCC2018/5082024

MEMBER:Kira Raif

DATE:29 September 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 29 September 2020 at 3:10pm

CATCHWORDS

MIGRATION – Confirmatory (Residence) (Class AK) – applicant was not the holder of a prescribed visa– has an Australian citizen child– court order – referral for ministerial intervention –compassionate circumstances – 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 16 November 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 visa applicant applied for the visa on 8 November 2018. The delegate refused to grant the visa on the basis that cl. 808.211 was not met because the applicant was not the holder of a prescribed visa when the application was made. The applicant seeks review of the delegate’s decision.

3. On 14 August 2019 and again on 29 September 2020 the applicant advised the Tribunal through her representative 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

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 Student Class TU visa which was valid until November 2018.

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. In her written submissions to the Tribunal of 14 August 2019 and 29 September 2020 the applicant explains that the purpose of the application is to access the Ministerial intervention as she had no other pathway of remaining in Australia permanently. The applicant explained that she has an Australian citizen child and is the primary caregiver to that child. The applicant states that there is a Court order issued in October 2017 placing the child on the International Watch list, preventing her departure from Australia. The applicant outlined the reasons why she is seeking Ministerial intervention, referring to her responsibilities toward the child and her relationship with the child’s father, as well as her employment commitments. The applicant notes that she has no other visa options. The applicant provided to the Tribunal a number of documents in support of these claims.

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 accepts that the applicant is the primary caregiver to her minor child and that due to the Australian court orders, the child cannot leave Australia. The applicant presented a number of documents in support of her claims. The Tribunal has formed the view that there are compassionate considerations in this case. 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 applicant a Confirmatory (Residence) (Class AK) visa.

    Kira Raif
    Senior Member