Sharma (Migration)

[2020] AATA 5934

Sharma (Migration) [2020] AATA 5934 (4 November 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Anika Sharma

CASE NUMBER:  2011990

DIBP REFERENCE(S):  BCC2020/1657976

MEMBER:Kira Raif

DATE:4 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 04 November 2020 at 11:03am

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, 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 2 July 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 20 May 2020. The delegate refused to grant the visa on the basis that cl. 808.211 was not met because the applicant did not hold a prescribed visa when the application was made. The applicant seeks review of the delegate’s decision.

3. On 7 October 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.

4. 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 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.

7. 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.

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 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 and the applicant’s written submission to the Tribunal suggests that the applicant has already done so.

   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