Vakaruru (Migration)

[2021] AATA 3111

Vakaruru (Migration) [2021] AATA 3111 (30 June 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Susana Lala Vakaruru
Mr Jone Mataku Vakaruru

CASE NUMBER:  2015394

DIBP REFERENCE(S):  BCC2020/2326858

MEMBER:Michael Cooke

DATE:30 June 2021

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to refuse the applicants Confirmatory (Residence) Subclass 808 visas.

Statement made on 30 June 2021 at 5:09pm

CATCHWORDS

MIGRATION – Confirmatory (Residence) (Class AK) – Subclass 808 visa – applicant was not the holder of a prescribed visa– applicant was the holder of a Bridging Visa E at the time of application – unique and exceptional circumstances – best interests of the Australian citizen children – referral for ministerial intervention – decision under review affirmed

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2, cls 808.211, 808.212, 802.213

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 Immigration on 15 October 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 primary visa applicant applied for the visa on 14 September 2020. The delegate refused to grant her the visa on the basis that she did not meet the criteria for the visa. The primary applicant has acknowledged to the Department that she does not meet the criteria for grant of the visa.

3. The Tribunal has been informed by their representative that the applicants wish to forgo their right to a hearing and have requested to have the review completed ‘on the papers’.

4. The applicants were represented in relation to the review by their registered migration agent Ms Tina Edwards.

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 grant of a Confirmatory (Residence) (Subclass 808) visa. The primary applicant has acknowledged that she does not meet the requirements and has requested the Tribunal to finalize the decision without a hearing to allow for Ministerial Intervention.

7. 808.21 Criteria to be satisfied at time of application

   808.211A

   The applicant satisfies:

   (a) clauses 808.211 and 808.212; or

   (b) clause 808.213 (which applies to some former holders of Norfolk Island immigration permits)

   808.211

   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.

   808.212

   In the case of an applicant who is the holder of a Subclass 302 visa, all members of the family unit of the applicant satisfy the public interest criteria applicable to them.

   808.213

   (1) This clause applies if paragraph 1111(2A)(b), (c) or (d) of Schedule 1 covers the application.

   Note: Paragraphs 1111(2A)(b), (c) or (d) of Schedule 1 cover applications made on the basis of the former migration status under the Immigration Act 1980 (Norfolk Island) of the applicant or a parent of the applicant.

   (2) The application must be made before 1 January 2024, unless the Minister is satisfied that there are compelling reasons for granting the visa.

   (3) During a period of, or periods that total, not less than 5 years in the period of 7 years immediately before the application is made (including any period, or part of a period, before30 June 2016), the applicant meets the requirements of subclause (4).

   (4) The applicant meets the requirements of this subclause during any period or periods while:

   (a) the applicant is (or has been) lawfully present in Norfolk Island; or

   (b) the applicant is (or has been) lawfully present in a place elsewhere in Australia, and:

   (i) has not turned 25; and (ii) is a dependent child of a person who is ordinarily resident in Norfolk Island; and (iii) lives (or has lived) in that place for the purpose of study; and (iv) while living there, meets (or met) the requirements mentioned in condition 8105 (which relates to students engaging in work).

   Note 1: An applicant can meet the requirements of subclause (4) by a combination of periods to which either paragraph (4)(a) or (4)(b) applies, if the total duration of that combination of periods amounts to not less than 5 years.

   Note 2: Condition 8105 is not imposed on the visa.

8. Clause 808.211 requires that, at the time of application, the applicant is a holder of a Resident Return (Temporary) (Class TP) visa, an Emergency (Temporary) (Class TI) visa, a Border(Temporary)(Class TA) visa, or a Class 301 (Australian requirement) entry permit or visa granted under the Migration (1993) Regulations.

9. The Tribunal notes that the applicant was the holder of a Bridging Visa E at the time of application. Thus, because of this finding none of the requirements in cl.808.211 is met by the applicant.

10. As cl.808.211 is not met, the applicant resultingly does not meet any of subclause 808.211A(a) and, therefore, clause 808.212(a) cannot be met and 808.212(b) does not need consideration.

11. As the Tribunal has found that primary applicant does not satisfy clauses 808.211 and does not meet the requirements of either 808.212 or 808.213, she therefore, does not meet any of the criteria for the grant of a Subclass 808 visa.

12. Since the primary applicant does not meet the criteria to be satisfied at time of application and at the time of decision, the primary applicant has not satisfied the criteria for the grant of a Confirmatory (Residence) visa

13. The primary applicant has requested the Tribunal to support Ministerial Intervention. She has previously advised the Department that the reason she will be applying for a Confirmatory Residence (Subclass 808) visa is because she and her husband have two Australian citizen children aged 15 and 13 who were born in Australia and have lived in Australia all of their lives. She claims that her Australian children’s best interests are covered by the obligations found in the Convention on the Rights of the Child.

14. Her representative informs the following:

    "Grounds for applying”

    On 31 August 2020, Jone Mataku Vakaruru received a Notice of Intention to Consider Cancellation of his BVA (Subclass 010) visa. At that point in time it was discovered that Susana Lala Vakaruru was unlawful in Australia. The applicants find themselves in this situation due to the apparent incorrect grant of a Subclass 010 visa to Jone Mataku Vakaruru on 3 May 2006. Notwithstanding that error, a Subclass 010 visa was not granted to his wife Susana Lala Vakaruru, and as a result they are in different situations. Susana Lala Vakarur self-reported to the Department and on 9 September 2020 she was granted a BVE on the basis of intention to make a valid application.Their situation reveals unique and exceptional circumstances of the kind in which the Minister may intervene.

    In brief, the couple has two children of the relationship, who were bom in Australia and who are Australian citizens. Australia has obligations under the Convention on the Rights of the Child as well as under the International Covenant on Civil and Political Rights. In the best interests of the Australian citizen children, and in the interests of family unity, combined applications have been made by Susana Lala Vakaruru and Jone Mataku Vakaruru for Subclass 808 visas, with the objective of seeking the Minister's personal intervention following a review process at the Administrative Appeals Tribunal where it is intended to seek a decision on the papers without a hearing. The applicants understand that there are no grounds for a successful outcome on this application."

15. The Tribunal accedes to the request for Ministerial Intervention under the following Ministerial Intervention guidelines:

    ·strong compassionate circumstances that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to an Australian citizen or an Australian family unit, where at least one member of the family is an Australian citizen or Australian permanent resident.

    DECISION

16. The Tribunal affirms the decision to refuse the applicants Confirmatory (Residence) Subclass 808 visas.

    Michael Cooke
    Senior Member