Tun (Migration)

[2020] AATA 6006

Tun (Migration) [2020] AATA 6006 (25 November 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Aung Kyaw Tun

CASE NUMBER:  2012960

DIBP REFERENCE(S):  BCC2020/1979911

MEMBER:Kira Raif

DATE:25 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 25 November 2020 at 11:20am

CATCHWORDS

MIGRATION – Confirmatory (Residence) (Class AK) – Subclass 808 visa – applicant was not the holder of a prescribed visa– applicant was a holder of a Medical Treatment 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 31 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 27 July 2020. The applicant informed the delegate that he was aware that he could not meet the visa requirements and that he intended to seek Ministerial intervention. The delegate refused to grant the visa on the basis that the applicant did not meet cl. 808.211 because the applicant did not hold a prescribed visa. The applicant seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal on 25 November 2020 to give evidence and present arguments. 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

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 Class UB Medical Treatment visa.

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 applicant concedes in his written and oral evidence to the Tribunal that he did not have the prescribed visa and that he does not meet the requirements for the grant of the visa. The Tribunal is not satisfied that the applicant meets cl. 808.211.

7. 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 applicant provided written evidence to the Tribunal on 19 November 2020. The applicant outlined his immigration history, family circumstances and his business arrangements. In written and oral evidence to the Tribunal, the applicant refers to the unique and exceptional circumstances, being the contribution he has, and can, make to Australia. The applicant submits that he has been a successful businessman and has managed a business that has been of benefit to the Australian economy. The applicant referred to the death of his partner and the compassionate considerations. The applicant submits that he has always pursued legitimate ways of remaining in Australia and has not abused the system. The applicant submits that he wishes to make a contribution to the Australian community and in particular, the Victorian economy. The Tribunal accepts the applicant’s evidence. 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.

   Conclusions                   

8. Given the findings above, the Tribunal affirms the decision under review.

   DECISION

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

   Kira Raif
   Senior Member