YONG (Migration)

[2017] AATA 1078

YONG (Migration) [2017] AATA 1078 (28 June 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms YIN MOOI YONG

CASE NUMBER:  1611849

DIBP REFERENCE(S):  BCC2016/2441613

MEMBER:Mary-Ann Cooper

DATE:28 June 2017

PLACE OF DECISION:  Melbourne

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

Statement made on 28 June 2017 at 4:57pm

CATCHWORDS

Migration – Confirmatory (Residence) (Class AK) visa – Subclass 808 – No visa of prescribed class held – Long term part of family and children’s nanny – Lived in family home and financially supported by them – Now in frail health – Needs care – Unable to travel back and forth between Malaysia and Australia – Ministerial referral

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 26 July 2016 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 22 July 2016. The delegate refused to grant the visa on the basis that the applicant did not satisfy cl.808.211 because she did not hold a visa of the prescribed class at the time of application as required.

3. The applicant appeared before the Tribunal on 30 March 2017 to give evidence and present arguments. The Tribunal also received oral evidence from Dr. Lim, Ms. Yap and Mr. Quaik.

4. The Tribunal hearing was conducted with the assistance of an interpreter in the Hakka and English languages.

5. The applicant was represented in relation to the review by her registered migration agent who also attended the hearing.

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 meets cl.808.211

8. The criteria for a Subclass 808 visa are set out in Part 808 of Schedule 2 to the Regulations. There are no secondary criteria, all applicants must satisfy the primary criteria: cl.808.2.

9. One of the requirements contained in cl.808.21 is as follows:

   808.21      Criteria to be satisfied at time of application 

   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 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 , 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 of a person who:

   (A)      is the holder of a Subclass 302 (Emergency (Permanent Visa Applicant)) visa; and

   (B)      has satisfied the ; 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.

10. The Confirmatory (Residence) visa is a permanent visa granted to persons who have entered Australia on a “conditional basis”. For the application to be successful, an applicant must, at the time of application, hold a Resident Return (Temporary)(Class TP) visa, an Emergency (Temporary)(Class TI) visa, a Border (Temporary)(class TA) or a Class 301 (Australian requirement) entry permit or visa granted under the Migration (1993) Regulations.

11. As recorded in the delegate’s decision, a copy of which was provided with the review application, and as confirmed by Departmental records, the applicant was not the holder of any of these visas at the time of application.

12. At the hearing the applicant confirmed she did not hold any of the above visas at the time of application.

13. As the applicant was not the holder of any of the prescribed visas at the time of his application she does not meet cl.808.211, an essential requirement for the grant of the visa.

    Ministerial intervention

14. The applicant has requested that the Tribunal refer the case to the Department for consideration by the Minister pursuant to s.351. This 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.

15. Prior to the hearing the applicant provided the following documents:

    ·     Letter from the family doctor stating that he has been the Lim family doctor for over 30 years and confirms that the applicant is regarded as “aunty” and is very close to them. He also confirms that there would be adverse effects on the family as well as the applicant if she is required to return to Malaysia.

    ·     Background summary of the applicant’s circumstances from Dr Lim, indicating that she was orphaned early in life and had come to live with them in Malaysia in 1996. He also confirms that she has an adopted daughter however claims she has little or no relationship with her.

16. The applicant described her lengthy and ongoing relationship with her former employers, for whom she been a Nanny. She said she had been coming to Australia regularly as a visitor since 1984. She said she lived in their former family home and they financially supported her. When asked about her adopted daughter, she said that her mother had cared for her. She said the daughter was now married and had children and they had no relationship.

17. Another witness gave evidence of Malaysia’s adoption laws and said to his knowledge the applicant’s adopted daughter had not been any formal adopted, that is, the adoption had not been registered as required by Malaysian law.

18. The applicant’s former employer, Ms Yap, gave evidence of her relationship with the applicant since 1966 and how she is regarded a member of the family unit. She claimed she and her family had regularly travelled to Malaysia to be with her and care for her and she had travelled regularly to Australia however they are unable to continue to travel and would like the applicant to live with them in Australia.

19. The Tribunal also took evidence from Ms Yap’s son, Dr Lim who confirmed that the applicant had been his and his brother’s nanny. He said they had come to Australia in 1984 on student visas and his parent’s had migrated in 1989. He confirmed that he and his family were permanent residents. He claimed that throughout the past 50 years his family had maintained a close relationship with the applicant and had travelled regularly to see her. She had remained living in the family home in Malaysia but now she was becoming more frail and they were concerned for her safety. They had hoped she could remain in Australia where it would be easier for the family to care for her.

20. While the applicant’s representative made submissions as to unique or exceptional circumstances, the Tribunal found them unhelpful. Conversely the evidence of Dr. Lim was compelling and convincing as to the close relationship between his family and the applicant and the detrimental impact on them, as well as the applicant, if she was required to return to Malaysia.

21. 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) and will refer the matter to the Department.

    DECISION

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

    Mary-Ann Cooper
    Member