Sovatabua (Migration)

[2022] AATA 1163

Sovatabua (Migration) [2022] AATA 1163 (12 April 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Reape Sovatabua

REPRESENTATIVE:  Mrs Anne Frances O'Donoghue

CASE NUMBER:  2114069

HOME AFFAIRS REFERENCE(S):          CLF2021/30151

MEMBER:Michael Cooke

DATE:12 April 2022

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision under review.

Statement made on 12 April 2022 at 3:40pm

CATCHWORDS

MIGRATION – Resolution of Status (Residence) (Class BL) visa – Subclass 851 (Resolution of Status) – Subclass 851 visa application undecided for a long period – decision re-notified – valid passport of a specified country – decision under review affirmed  

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 1, Item 1216; Schedule 2, cl 851.221

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 and Border Protection on 7 April 2011 to refuse to grant the visa applicant a Resolution of Status (Residence) (Class BL) Subclass 851 visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicant applied for the visa on 9 March 1998. The delegate refused to grant the visa on the basis that

3. The applicant waived her right to appear before the Tribunal on 28 April 2022 to give evidence and present arguments. The Tribunal will finalize the decision ‘on the papers’.

4. The applicant was represented in relation to the review.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in the present case is whether the applicant can meet the criteria for a Resolution of Status (Residence) (Class BL) (Subclass 851) visa.

7. The applicant has tendered the delegate’s renotification decision and decision record to the Tribunal.

8. Information before the Tribunal indicates that the applicant made two applications. One was for for a Resolution of Status (Temporary) (Class UH) visa and the other was for a Resolution of Status (Residence) (Class BL) visa. They were both lodged on 31 March 1998. The applicant indicated on her application that she wished to be considered for the grant of a Subclass 850 Resolution of Status (Temporary) visa and a Subclass 851 - Resolution of Status visa.

9. Subsequently her Subclass 850 visa application was found to be invalid by the delegate. She was, according to the Department, notified of this decision on 01 April 1998.

10. On 03 February 2011 the Department wrote to her advising that her outstanding Subclass 851 visa application remained undecided.  She was invited to either withdraw the application or decline the invitation to withdraw and provide comments. This invitation was in relation to the possible refusal of her Subclass 851 application and on the basis that she was not the holder of a Subclass 850 visa.

11. In the interim, it appears from Movement Records that the applicant remained lawfully for many years on a WB-020 visa. During this time, she travelled back and forth to Fiji on many occasions.

12. In September 2021, the Department decided to finalize the matter of her visa status. Her representative was informed that:

    We will shortly be reissuing a refusal renotification to Ms Sovatabua and to ensure there are no further notification issues.

13. On 21 September 2021 the applicant was sent the below correspondence by the Department:

    Notification of refusal of application for a Resolution of Status (Temporary) (Class UH) Visa and Resolution of Status (Residence) (Class BL) Visa

    We previously notified you that the Resolution of Status (Residence) (Class BL)(Subclass 851) Visa application by the applicant listed below had been refused. We have assessed your case and found that you were not correctly notified of this decision. Because of this, I am now re-notifying you that the visa application for the applicant listed above has been refused.

    After careful consideration of all the information available, the delegate who signed the attached decision record was not satisfied that the applicant met the relevant criteria for the grant of the visa as provided in Australian migration law.

    The application was refused because the Applicant did not satisfy 821.221 of the Migration Regulations 1994. This was because the application for the Subclass 850 Resolution of Status (Temporary) (Class UH) Visa was invalid because the applicant could not meet Schedule 1 requirements and which the applicant was notified of on 1 April 1998.

    The attached decision record provides detailed information about this decision as it applies to this applicant.

    What this means for you

    As a result of the incorrect notification of the decision to refuse to grant you a Resolution of Status (Residence) (Class BL) (Subclass 851) Visa, the time period within which an application for merits review of the decision can be made has not commenced. The time period within which an application for merits review of the decision can be made will commence when you are taken to have received this letter.

14. The decision record discloses that applicant did not provide any comments in relation to the possible refusal of her application. She did not respond to the Department’s letter within the prescribed time period and her application was subsequently refused.

15. The applicant then applied to the Tribunal for review of the refusal on 12 October 2021.

16. There is no further evidence before the Tribunal which has been submitted by the applicant in support of her case. She has recently requested the Tribunal to finalize the application for review without a hearing.

    Legislation

    Criteria to be satisfied at time of decision

    851.221 

    Either:

    (a) the applicant is the holder of a Subclass 850 (Resolution of Status (temporary)) visa; or

    (b) if the applicant held a Subclass 850 visa that ceased on notification of a decision of the minister to refuse a Subclass 851 visa - a review officer or the Tribunal has determined that the applicant satisfies the criteria for the grant of a Subclass 851 visa apart from the crite1ion that the applicant hold a Subclass 850 visa.

    Subclause 1216A(3) states that:

    (3) Other:

    (a) Application may be made in Australia, but not in immigration clearance, if

    (i) it is made during the period from 1 October 1997 to 31 March 1998 (inclusive); and

    (ii) at the time when it is made, the applicant is in Australia.

    (b)       Application may be made outside Australia if

    (i) Subject to paragraph (i), it is made during the period from 1 October 1997 to 30 June 1998 (inclusive); and

    (ii) at the time when it is made, the applicant is outside Australia.

    (c) In the case of an application mentioned in paragraph (a), the application must be accompanied by satisfactory evidence that:

    (i) the applicant, or at least one person who makes a combined application with the applicant, entered Australia, as the holder of

    (A) a valid passport of a country specified in paragraph (d); and

    (B) before the date specified in paragraph (d) in relation to that country.

    (d) The countries and dates mentioned in paragraph (c) are as follows:

    (i) Iraq - 31 October 1991;

    (ii) Kuwait- 31 October 1991;

    (iii) Lebanon - 30 November 1991;

    (iv) EEC - 1 November 1993;

    (v) Sri Lanka - 1 November 1993;

    (vi) Socialist Federal Republic of Yugoslavia - 1 November 1993; (vii)                   Federal Republic of Yugoslavia - 1 November 1993;

    (viii) Former Yugoslav Republic of Macedonia - 1 November 1993;

    (ix) Republic of Bosnia and Herzegovina -1 November 1993;

    (x) Republic of Croatia - 1 November 1993;

    (xi) Republic of Slovenia - 1 November 1993.

    (e)   In the case of an application mentioned in paragraph (a), the application must be made at the same time and place as an application, by the applicant, for a Resolution of Status (Residence) (Class BL) visa.

    (f)    In the case of an application mentioned in paragraph (a) by an applicant who claims to be:

    (i) a member of the immediate family of a person ('the principal person) who is also making an application mentioned in that paragraph; or

    (ii) a dependent child of the spouse of the principal person, being a spouse who is an applicant for a Resolution of Status (Temporary)(Class UH) or Resolution of Status (Residence)(Class BL) visa; the application may be made at the same time and place as, and combined with the application by the principal person.

    (g) In the case of an application mentioned in paragraph (b) subject to paragraph (i), the application specifies a valid application mentioned in paragraph (a), by another person ('the sponsor), that identifies the applicant as:

    (i) either:

    (A) a member of the immediate family of the sponsor; or

    (B) a dependent child of the spouse of the sponsor, being a spouse who is an applicant for a Resolution of Status (Temporary)(Class UH) visa; and

    (ii) a person who is sponsored by the sponsor.

    (h) An application mentioned in paragraph (b) may be made at the same time and place as and be combined with another such application if each applicant claims to be:

    (i) identified, in the application of a person ('the sponsor') who has made a valid application mentioned in paragraph (a) as:

    (A) a member of the immediate family of the sponsor; or

    (B) a dependent child of the spouse of the sponsor, being a spouse who is an applicant for a Resolution of Status (Temporary)(Class UH) visa; and

    (ii) sponsored by the sponsor.

    (i)  If:   

    (i) the applicant is a dependant child of a person ('the sponsor') who has made a valid application mentioned in paragraph (a); and

    (ii) the applicant is sponsored by the sponsor; and

    (iii) the Minister is satisfied that compelling and compassionate circumstances exist for the applicant to make the application;

    the application:

    (iv) may be made outside Australia at any time before the grant to the sponsor of a Resolution of Status (Residence) (Class BL) visa; and

    (v) need not specify the valid application made by the sponsor.

    Reasons and Findings

17. Item 1216A(3)(d) required that the applicant enter Australia with the valid passport of a specified country (see above). The applicant’s passport (Fiji) is not a passport of one of the above specified countries. Thus, she was not the holder of an appropriate passport when she entered Australia and does not meet this specific requirement.

18. Therefore, the Tribunal finds that as she does not meet the Schedule 1 requirements in Item 1216A of the Regulations her application for a Subclass 850 visa was invalid.

19. The Tribunal finds that because of this invalidity, the applicant is not the holder, nor has she ever held a Subclass 850 visa which is a crucial requirement for a Status (Residence) (Class BL) (Subclass 851) visa and found in cl.851.221 of the Regulations.

20. The Tribunal, therefore, affirms the decision to refuse the applicant a Resolution of Status (Residence) (Class BL) (Subclass 851) Visa.

    DECISION

21. The Tribunal affirms the decision under review.

    Michael Cooke
    Senior Member