Vani (Migration)

[2022] AATA 401

Vani (Migration) [2022] AATA 401 (16 February 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Erika Tamarina Vani

REPRESENTATIVE:  Ms Mateja Rautner (MARN: 1387375)

CASE NUMBER:  2114577

HOME AFFAIRS REFERENCE(S):          BCC2021/1758592

MEMBER:Michael Cooke

DATE:16 February 2022

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Confirmatory (Residence) (Class AK) Subclass 808 visa.

Statement made on 16 February 2022 at 9:59am

CATCHWORDS

MIGRATION – Confirmatory (Residence) (Class AK) visa – Subclass 808 (Confirmatory) – best interests of the child – period of unlawful residence – death of the applicant’s mother – grandmother awarded sole parental responsibility – compassionate circumstances – referral for Ministerial Intervention – decision under review affirmed           

LEGISLATION

Migration Act 1958, ss 65, 351
Migration Regulations 1994, Schedule 2, cls 808.211 - 808.213

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 Home Affairs on 11 October 2021 to refuse to grant the visa applicant a Confirmatory (Residence) (Class AK) Subclass 808 visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicant (Miss Erika Tamarina Vani) applied for the visa on 7 September 2021. The delegate refused to grant the visa on the basis that the applicant did not meet the time of application criteria for a Confirmatory (Residence) (Subclass 808) visa.

3. The applicant’s representative in a submission to the Tribunal has requested the matter be decided ‘on the papers’ including a request for Ministerial Intervention on behalf of the applicant.

4. The Tribunal has examined the case and finds that it falls within the Ministerial Intervention guidelines. Thus, the Tribunal has acceded to the representative’s request on behalf of the applicant.

5. The applicant was represented in relation to the review by Ms Mateja Rautner (MARN: 1387375).

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is whether the applicant can meet the criteria for a Confirmatory (Residence) (Class AK) Subclass 808 visa

8. The primary applicant applied for a Confirmatory (Residence) (Subclass 808) visa on 07 September 2021.

9. In the submission accompanying the visa application her (then) migration agent attached a covering letter dated 06 September 2021 stating the following information:

   “This application is lodged as a valid application in the expectation and understanding of the applicant that it will be refused by the Delegate of the Minister for Home Affairs based on the applicant's inability to satisfy the relevant criteria.

   There are extenuating circumstances in this matter and following the Department's decision to refuse to grant the visa, the applicant intends to lodge an application for review with the Administrative Appeals Tribunal. We fully anticipate that the Tribunal will affirm the Department's decision and the applicant will then in turn be able to seek the Minister's Intervention under s.351 of the Migration Act 1958.

   As explained in Form 852, there are unique and exceptional circumstances in this matter that involves the best interest of a minor child who was born in Australia and is in the full care and custody of her Australian citizen maternal grandmother/legal guardian.

   In brief, the circumstances are that the applicant is 5.5 years old minor child who travelled to Australia with her biological mother in February 2020. The minor child's single mother overstayed her visitor visa, both mother and the applicant became unlawful non-citizens, and later the mother tragically committed suicide and passed away. Since the mother's passing the applicant has been living with her maternal grandmother. The grandmother was the only person who could and was willing to provide the applicant welfare, daily care, and support. The maternal grandmother has been awarded sole parental responsibility by the Family Court of Australia under Consent Orders on 4 August 2021. The Consent Order states that the child live with the maternal Grandmother."

10. At lodgement of the application, the migration agent stated that the applicant will not meet the eligibility criteria for the grant of the Confirmatory visa. It was stated that the application was lodged with the intention to seek an administrative review of an anticipated primary visa refusal decision. Therefore, the applicant made this application on the basis that they will ultimately seek the Minister's intervention pursuant to s 351 of the Migration Act 1958 ("the Act) on the basis of unique and exceptional circumstances.

    The Applicant’s Submission

    Identity & Passport

11. The applicant’s identity is confirmed by the copy of the biographical page of her passport, and birth certificate that show the name of her parents and which are included with this submission.

    Supporting Documentation:

    ·Scanned copy of applicant's passport (Attachment 1)

    ·Scanned copy of applicant’s birth certificate (Attachment 2)

    Summary of applicant’s background leading to this appeal application

    We were aware that the applicant could not satisfy Schedule 2 requirements for the grant of a Class AK, Subclass 808 Confirmatory (Residence) visa and she did not seek to show that she met the requirements.

    The visa application was lodged as a valid application in the expectation and understanding of the applicant that it would be refused by the Delegate of the Minister for Home Affairs based on the applicant’s inability to satisfy the relevant criteria.

    There have been extenuating circumstances in this matter and following the Department’s decision to refuse to grant the visa, the applicant intended to lodge an application for review with the Administrative Appeals Tribunal. We fully anticipate that the Tribunal will affirm the Department’s decision and the applicant will then in turn be able to seek the Minister’s Intervention under s351 of the Migration Act 1958.

    As explained in the 808 visa application, there are unique and exceptional circumstances in this matter that involve the best interest of a minor child who was born in Australia and is in the full care and custody of her Australian citizen maternal grandmother/legal guardian.

    In brief, the circumstances are that the applicant is almost 6 years old minor child who travelled to Australia with her biological mother in February 2020. The minor child’s single mother overstayed her visitor visa, both mother and the applicant became unlawful non-citizens, and later the mother tragically committed suicide and passed away. Since the mother’s passing the applicant has been living with her maternal grandmother. The grandmother was the only person who could and was willing to provide the applicant welfare, daily care, and support. The maternal grandmother has been awarded sole parental responsibility by the Family Court of Australia under Consent Orders on 4 August 2021. The Consent Order states that the child lives with the maternal Grandmother.

    Supporting Documentation:

    ·Scanned copy of grandmother/legal guardian’s passport (Attachment 3)

    ·Scanned copy of Consent Order issued by the Family Court of Australia (Attachment 4)

    The applicant and her grandmother have already been interviewed by the Compliance Office in Cairns (Position Number: 00000976). The Compliance Officers advised that they continue assessing the applicant's situation and her case in the foreseeable future.

    There are strong compassionate circumstances regarding the child that fall within the scope of the Minister’s Guidelines for cases that should be brought to his attention. The Minister will be requested to consider exercising his public interest powers under s.351 of the Migration Act 1958 for a range of reasons, including with reference to Australia’s obligations under the United Nations Convention on the Rights of the Child.

    The applicant has lodged a valid application for a review in respect of a decision to refuse to grant a Confirmatory (Residence) (Class AK) visa, on 19 October 2021. We ask that the Administrative Appeals Tribunal affirms the decision in due course to enable the applicant to continue the process of seeking the Minister’s Intervention.

    The applicant’s grandmother/legal guardian has been in contact with The Hon Warren Entsch MP, and we have been advised that he wishes to support the applicant’s request for the Ministerial Intervention in her matter.

    We will provide supporting documents and comprehensive submissions in the near future to further support the case and the applicant’s request.

    If you have any queries or require any further information, please contact me on [phone] or email at [email protected].

    Yours faithfully

    Ms Kinga Urban

    Registered Migration Agent No. 0956576

    Findings and Reasons

12. In this case, the primary applicant must, at time of application, satisfy clause 808.21 by meeting the requirements of either:

    ·clauses 808.211 and 808.212 to meet subclause 808.211A(a); or

    ·clause 808.213 (which applies to some former holders of Norfolk Island immigration permits) to meet subclause 808.211A(b).

    808.21 Criteria to be satisfied at time of application

    808.211A

13. 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

14. 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.

15. As the applicant held a Bridging Visa E (Subclass 050), at time of application, cl.808.211 is not met by the applicant.

    808.212

16. 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.

17. The Tribunal finds that as the applicant is not the holder of a Subclass 302 visa she does not meet cl.808.212.

    808.213

18. Clause 808.213 applies to some former holders of Norfolk Island immigration permits.

19. Departmental records indicate that neither the applicant nor the parents of the applicant was the holder of Norfolk Island permits.

20. Therefore, the Tribunal finds that cl.808.213 is not met by the applicant.

21. The Tribunal has considered clauses 808.211, 808.212 and 808.213 and finds that applicant does not meet these provisions.

22. The Tribunal, therefore, finds that as a result of the above finding the applicant does not satisfy the requirements of clause 808.211A and the decision must be affirmed.

    Ministerial Intervention Request

23. The Tribunal requests the Minister to intervene in the case due to the following unique and exceptional circumstances:

    ·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

24. The Tribunal affirms the decision not to grant the applicant a Confirmatory (Residence) (Class AK) Subclass 808 visa.

    Michael Cooke
    Senior Member