Velasquez (Migration)

[2018] AATA 51

Velasquez (Migration) [2018] AATA 51 (4 January 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Gay Palabrica Velasquez

CASE NUMBER:  1713993

DIBP REFERENCE(S):  BCC2017/1980150

MEMBER:Hugh Sanderson

DATE:4 January 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to refuse the applicant the subclass 808 Confirmatory (Residence) (class AK) visa.

Statement made on 04 January 2018 at 11:40am

CATCHWORDS
Migration – Confirmatory (Residence) (Class AK) visa – Subclass 808 (Confirmatory) – Applicant acknowledges they do not meet criteria for grant of visa – Intention to request ministerial intervention

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 808.211A, 808.212

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 5 June 2017 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 1 June 2017. The delegate refused to grant the visa on the basis that the applicant did not meet the criteria in cl.808.211A as the applicant was not the holder of a subclass 302 Emergency (Permanent Visa Applicant) visa.

   Background

3. The applicant is a citizen of the Philippines and is currently 32 years old. She married Antonio Velasquez on 2 December 2009 who had become an Australian citizen on 28 August 1986. The child was born of their relationship, Querr, on 18 August 2010. Antonio Velasquez died in Australia on 15 February 2017 at the age of 68.

4. The movement records for Antonio Velasquez show that he was resident in Australia the following times:

   ·From 23 December 2009 to 25 August 2010;

   ·From19 September 2010 to 28 May 2012;

   ·From 28 August 2012 to 12 November 2013;

   ·From 30 October 2014 to 24 March 2015; and

   ·From 17 September 2015.

5. The movement records of the applicant and her son show that they have been in Australia on at the following times, the applicant travelling on Visitor visas:

   ·From 9 October 2012 to 7 January 2013;

   ·From 16 May 2013 to 12 November 2013;

   ·From 17 September 2015 to 25 May 2016; and

   ·From 2 June 2016.

6. The applicant applied for the subclass 808 Confirmatory visa on 1 June 2017. With her application, she provided a letter stating as follows:

   I have applied for a Confirmatory (Residence) visa.

   I am aware that I do not meet the requirements for the grant of this visa, and that the visa will be refused. I will then apply to the Administrative Appeals Tribunal, and then seek Ministerial Intervention.

   When I am at the stage of seeking Ministerial Intervention, I will bring to the Minister’s attention that I have an Australian citizen son who is under 18. My husband (the child’s father) was an Australian citizen and he passed away in February 2017. I am the sole carer for my son.

7. The delegate who considered the application noted the applicant did not meet the criteria in cl.808.211 and refused the application.

   Information to the Tribunal

8. The Tribunal wrote to the applicant on 8 December 2017 inviting her to attend the hearing before the Tribunal. The applicant responded on 20 December 2017 waving her right to a hearing and requesting the Tribunal make a decision on the papers. The applicant acknowledged that she did not meet the requirements for the grant of the visa and would be requesting the Minister intervene in her matter to grant her a visa.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The applicant has applied for a subclass 808 Confirmatory (Residence) visa. A requirement for the grant of that visa is that at the time of the application the applicant is the holder of a Resident Return (Temporary) visa or as the holder of an Emergency (Temporary) visa. The applicant at the time of the application did not hold either of those visas but held instead a subclass 600 Visitor visa.

11. For the above reasons, the applicant does not meet the criteria in cl.808.212 and the decision to refuse the application must be affirmed. The applicant has acknowledged that she does not meet the criteria for the grant of the visa.

    Ministerial intervention

12. The applicant acknowledged that she did not meet the criteria for the grant of the visa and the only reason for the application was to request Ministerial intervention. She provided submissions in support of that application claiming as follows:

    ·She married her husband, who is an Australian citizen, on 2 December 2009 in the Philippines they had a child together, Querr, who was born on 18 August 2010 and is an Australian citizen;

    ·Throughout their marriage, the applicant and her husband spent time in the Philippines and in Australia, with her husband living in the Philippines until he started having heart problems and diabetes and returned to Australia for treatment;

    ·Because of her husband’s medical problems, they decided she should come to Australia and apply for a Partner visa on shore;

    ·After arriving in June 2016 on a Visitor visa, the parties were trying to save money for the application;

    ·The applicant’s husband died in February 2017 aged 68 years and they had not been able to save money before then to apply for the Partner visa; and

    ·The applicant’s son attends school in Australia and is well settled here and the applicant cares for him.

13. The Tribunal does not intend to support the application for Ministerial intervention. The applicant may provide any further information she believes would support her application to the Department directly.

    DECISION

14. The Tribunal affirms the decision to refuse the applicant the subclass 808 Confirmatory (Residence) (class AK) visa.

    Hugh Sanderson
    Member