Rose (Migration)

[2024] AATA 3981

Rose (Migration) [2024] AATA 3981 (16 September 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Andrew Alec Rose

REPRESENTATIVE:  Mrs Tina Masumi Edwards (MARN: 0955139)

CASE NUMBER:  2310321

HOME AFFAIRS REFERENCE(S):          BCC2023/3657370

MEMBER:Andrew McLean Williams

DATE:16 September 2024

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision not to grant the Applicant a Confirmatory (Residence) Class AK) Visa yet recommends the matter be referred to the Minister to consider Ministerial intervention under s.351 of the Migration Act 1958.

Statement made on 16 September 2024 at 4:35pm

CATCHWORDS
MIGRATION – Confirmatory (Residence) (Class AK) visa – Subclass 808 (Confirmatory) – applicant does not satisfy criteria and application bound to be unsuccessful – high level of care for complex medical needs – not fit to depart – referred for ministerial intervention – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 351
Migration Regulations 1994 (Cth), Schedule 2, cl 808.211, 808.211A, 808.212. 808.213

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 Home Affairs on 29 June 2023 to refuse to grant the visa applicant a Confirmatory (Residence) (Class AK) Confirmatory (Subclass 808) visa pursuant to s.65 of the Migration Act 1958 (Cth) (‘the Act’).

2. The visa applicant applied for the visa on 27 June 2023. The Delegate refused to grant the visa on the basis that the visa applicant did not satisfy the requirements of Subclause 808.21 at the time of visa application.  Subclause 808.211A requires that the visa applicant satisfy the criteria in either clauses 808.211 and 808.212, or in clause 808.213.  Unfortunately, the visa applicant does not satisfy any of those criteria, such that this Application for Review was always destined to be unsuccessful.

3. The visa applicant was represented in relation to the review by his Registered Migration Agent, Ms Tina Masumi Edwards (MARN 0955139).  Ms Edwards informed the Tribunal that the sole basis for the commencement of the Application for Review before the Tribunal was to open a pathway for Ministerial intervention on grounds of there being either compassionate or compelling circumstances.

4. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed, yet the visa applicant’s circumstances should now be considered by the Minister with a view towards Ministerial intervention.

5. The visa applicant (‘Mr Rose’) was born in the United Kingdom (DOB 23/03/1952) and is now aged 72-years. 

6. Mr Rose has spent a considerable proportion of his working life in Papua New Guinea and currently resides - on a self-funded basis – (since 11 October 2021) in BUPA’s aged care facility at Cairns, where he is receiving a high level of care for complex medical needs. 

7. Mr Rose has no capacity for independent living and is completely dependent on nursing care for all aspects of daily living.  Mr Rose has undergone a cranioplasty procedure which resulted in medical complications, together with his also suffering from a number of other, ongoing medical issues.  Available medical evidence indicates that Mr Rose is in no fit state to leave Australia, and any compulsory requirement that he depart Australia is only likely to exacerbate his condition.

8. Mr Rose does not satisfy the criteria for a Medical Treatment visa, and has been in Australia on a series of visitor visas.

9. In all the circumstances Mr Rose would appear to now meet the criteria under the Ministerial Guidelines for referral to the Minister for consideration for Ministerial intervention, on compassionate grounds.  The Tribunal recommends that this now happen.

   DECISION

10. The decision under review should be affirmed, yet the visa applicant’s circumstances should now be considered by the Minister with a view towards Ministerial intervention.

    Andrew McLean Williams
    Member