Singh (Migration)

[2020] AATA 5905

Singh (Migration) [2020] AATA 5905 (28 October 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Master Gursahib Singh

CASE NUMBER:  1928069

DIBP REFERENCE(S):  BCC2019/3688468

MEMBER:David Crawshay

DATE:28 October 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 28 October 2020 at 2:44pm

CATCHWORDS

MIGRATION – Confirmatory (Residence) (Class AK) – applicant was not the holder of a prescribed visa– has an Australian citizen sister– referral for ministerial intervention – strong 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 13 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 applicant applied for the visa on 19 July 2019. The delegate refused to grant the visa on the basis that the applicant did not meet cl.808.211 because he did not hold any of the visas required under the alternative subclauses of cl.808.211.

3. As was apparent from the delegate’s decision, a copy of which was provided by the applicant to the Tribunal, the application was made in the knowledge that it would be refused by the Department and the Tribunal on review, at which point an application for ministerial intervention would then be lodged.

4. In light of this, the Tribunal wrote to the applicant on 19 May 2020 seeking consent to determine the matter on the papers. The Tribunal’s letter invited the applicant to submit evidence and submissions to support a request for ministerial intervention.

5. On 2 June 2020, the applicant’s authorised representative replied by letter, giving consent to the matter being decided on the papers if the Tribunal was able to make a referral to the minister on the strength of the submissions and supporting documents. The representative stated that these documents would be provided within 28 days.

6. On 9 October 2020, and having not yet received this information in spite of the deadline passing, the Tribunal wrote to the applicant stating that if the submissions and supporting documents were not received by 23 October 2020, the Tribunal may be minded to list the matter for hearing.

7. On 21 and 22 October 2020, the applicant’s authorised representative provided submissions in favour of a referral to the minister along with a number of supporting documents. On the basis of the above, the Tribunal has determined this matter on the evidence available to it.

8. The applicant was represented in relation to the review by his registered migration agent.

9. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in the present matter is whether the applicant satisfies any of the alternative requirements under cl.808.211.

11. Clause 808.211 provides as follows:

    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.

12. According to the decision record, the applicant was the holder of a Bridging A visa (WA-010) at the time the visa application was lodged on 19 July 2019. As he was not the holder of any of the visas or permits listed in the alternative requirements under cl.808.211, he is incapable of satisfying any of those requirements and therefore does not meet cl.808.211.

    MINISTERIAL INTERVENTION

13. As stated above, the applicant submitted a number of documents in support of a request for minister intervention under s.351 of the Act. Ministerial intervention is a discretion given to the minister to substitute for a decision of the Tribunal another decision that is more favourable to the applicant if the minister thinks it is in the public interest to do so.

14. The Tribunal acknowledges the many documents that were submitted in support of the submissions made on the applicant’s behalf. These submissions focussed on:

    ·the strong compassionate circumstances that, if not recognised, would result in serious, ongoing and irreversible harm and continuing hardship to the applicant’s Australian citizen sister, Angelpreet Kaur;

    ·the best interests of the applicant and the applicant’s Australian citizen sister;

    ·the length of time that the applicant’s family have been in Australia and the close ties of his family to the Australian community; and

    ·the Department’s defective administration.

15. The Tribunal has had regard to these submissions, along with the supporting documents, and has considered them against the “Minister’s guidelines”. It finds that there are strong compassionate circumstances that would result in serious, ongoing and irreversible harm and continuing hardship to the applicant’s family unit where his sister is an Australian citizen. For this reason, it will be referring the matter to the Department.

    DECISION

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

    David Crawshay
    Member