1414747 (Migration)

[2015] AATA 3541

1414747 (Migration) [2015] AATA 3541 (13 October 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Karan Basra

CASE NUMBER:  1414747

DIBP REFERENCE(S):  CLF2013/22751

MEMBER:Mary Cameron

DATE:13 October 2015

PLACE OF DECISION:  Melbourne

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

Statement made on 13 October 2015 at 12:54pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 12 August 2014 to refuse to grant the applicant a Partner (Residence) (Class BS) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 4 February 2013 on the basis of his relationship with his sponsor. At that time, Class BS contained only one subclass: Subclass 801 (Partner). The criteria for the grant of this visa are set out in Part 801 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria. Relevantly to this matter the primary criteria include cl.801.221.

3. The delegate refused to grant the visa on the basis that the applicant did not satisfy subclause (2),(2A),(3),(4),(5),(6) or (8) of clause 801.221 of Schedule 2 of the Regulations at the time of the delegate’s decision.

4. The applicant applied to the Tribunal for the review of that decision on 29 August 2014.

5. The applicant appeared before the Tribunal on 28 May 2015 to give evidence and present arguments.

6. The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The applicant lodged a valid visa application for a combined UK Partner (Temporary) Subclass 820 visa and BS Partner (Residence) Subclass 801 visa on 4 February 2013 on the basis of being in a relationship with his sponsoring partner.

9. A delegate of the Minister for Immigration refused to grant the visas on 4 September 2013. The delegate’s decision in respect of the Partner (Temporary) (Class UK) visa was affirmed by the Tribunal (differently constituted) on 9 April 2014.

10. The Department subsequently identified a defect in the in the notification of the visa refusal as the notification letter failed to refer to the BS Partner (Residence) Subclass 801 visa. Further, the Department identified that the decision in respect of the Subclass 801 visa was affected by jurisdictional error, and a fresh decision was made in relation to that application. The applicant was subsequently notified of the refusal of the Subclass 801 visa on 12 August 2014.

11. The applicant applied to the Tribunal on 29 August 2014 for the review of the decision to refuse the Subclass 801 visa. In this respect the Tribunal notes that although the Application for Review Form (M1) has been filled in to indicate that the applicant is seeking review of a decision regarding a “Subclass 820” visa, all other indications are that he actually intended to seek the review of the decision to refuse the Subclass 801 visa. He has written “Visa class BS” in response to the question ‘What decision do you want reviewed?’ and the Class BS contains only one subclass - Subclass 801.

12. Further, the Department’s decision record and notification letter, which indicate that a Partner (Residence) (Class BS) (Subclass 801) visa application had been refused on 12 August 2014 were provided with the review application. The notification letter indicates that the Department identified that the applicant was not correctly notified of the decision in respect of the Subclass 801 visa application, and further, a new decision to refuse the Subclass 801 visa was made because the original Subclass 801 decision was affected by jurisdictional error.

13. The Tribunal has taken into account all of the evidence before it and finds that the applicant has sought review of the Department’s decision to refuse the grant of a Subclass 801 visa.

14. At the Tribunal hearing the Tribunal explained to the applicant that the primary criteria for the grant of a Subclass 801 permanent partner visa includes cl.801.221(1) which requires with some exceptions, that the applicant must be the holder of a temporary partner visa: cl.801.221(2), cl.801.221(2A), cl.801.221(3), cl.801.221(4), cl.801.221(6) or cl.801.221(8). The Tribunal further explained to the applicant that the exceptions to the requirement that the applicant be the holder of a temporary partner visa are not applicable in his case.

15. The Tribunal asked the applicant whether he is, or has ever been, the holder of a temporary partner visa. He stated that he has not.

16. The applicant’s representative provided legal submissions to the Tribunal to the effect that by notifying the applicant on 12 August 2014 that he had not been correctly notified of the decision in respect of his application for a Partner (Residence) (Class BS) visa, a fresh decision was made, and the Department conceded that there had been a jurisdictional error in the previous decision dated September 2013. The applicant’s submission in this regard is that the Tribunal should set aside the Department’s two decisions not to grant an 820 or 801 visa, and remit the application to the Department on the basis that the applicant meets both cl.820.211(2)(d)(ii) and also for reconsideration for the grant of a Subclass 801 visa on the basis that the application was lodged more than two years previously and is ongoing and genuine.

17. At the Tribunal hearing the applicant’s representative requested a period of time in which to make further submissions pending the outcome of a Freedom of Information request which had been made to the Department. The Tribunal agreed to this request and further written submissions were provided to the Tribunal on 10 August 2015. Those submissions are that  the Department’s decision to refuse the applicant’s Partner (Temporary) Class UK visa on 4 September 2013 was infected by jurisdictional error and therefore cannot be treated as a decision at all. Therefore the Tribunal had no power to review that purported decision, because the Tribunal’s jurisdiction cannot arise in circumstances where there was no decision. Therefore the Tribunal as presently constituted should accept that the previous Tribunal erred in finding it had jurisdiction and failed to discharge its statutory function and the decision of the previous Tribunal in respect of the Subclass 820 visa is void. The submission reiterates the applicant’s opinion that the Tribunal can and ought to consider the applicant’s application for a both the Subclass 820 and Subclass 801 visas in order to make a lawful decision. The Tribunal has considers the applicant’s submissions.

18. The Tribunal does not accept that it has jurisdiction to review the Department’s decision to refuse the applicant the grant of a Partner (Temporary) Class UK (Subclass 820) visa. The Class UK (Subclass 820) is a separate visa class to Class BS (Subclass 801), and the decision of the Department to refuse the applicant’s application for a Class UK (Subclass 820) visa is a separate decision to the Department’s decision to refuse the Class BS (Subclass 801) decision which is the subject of the present review.

19. The applicant previously (as set out above) sought the review of the Department’s decision to refuse the applicant a Class UK (Subclass 820) visa and that decision was affirmed by the Tribunal (differently constituted) on 9 April 2014. The Tribunal considers that matter to have been finally determined within the meaning of s.5 (9) of the Act. Further, as noted above, the Tribunal has found that the applicant has sought review of the Subclass 801 visa refusal decision and not the Subclass 820 visa refusal decision.

20. As was discussed with the applicant at the Tribunal hearing, an applicant for BS Partner (Residence) Subclass 801 visa must, at the time of decision, satisfy subclause (2), (2A), (3), (4), (6) or (8) of cl.801.221 of Schedule 2 to the Regulations.

21. As the applicant is not the holder of a Subclass 820 visa at the time of this decision the Tribunal finds that he cannot satisfy the requirements of cl.801.221(3),(4),(5) or (6).

22. The Tribunal further finds that the applicant cannot satisfy the requirements of cl.801.221(2) or cl.801.221(2A) because at the time of this decision he is not the holder of a Subclass 820 visa.

23. The Tribunal further finds that the applicant cannot satisfy the requirements of cl.801.221(8) as he has not held a Subclass 820 visa that ceased on notification of a decision of the Minister to refuse a Subclass 801 visa. 

24. As the applicant does not satisfy any of subclauses (2),(2A),(3),(4),(5),(6) or (8) he does not satisfy cl.801.221(1) and therefore does not meet the meet the legal criteria for the grant of the visa at the time of decision.

25. For the reasons above, the applicant does not satisfy the criteria for the grant of the visa.

    Ministerial Intervention

26. The applicant’s submissions include the request that the Tribunal refer the matter to the Minister to consider exercising his discretion under s.351 of the Act which gives the Minister 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 has submitted that there are unique and exceptional circumstances in the case.

27. The Tribunal has considered the applicants' case and the Ministerial Guidelines relating to the Minister's discretionary power, as set out in the Department's Procedures Advice Manual (PAM3) “Minister's guidelines on Ministerial powers (s 345, s 351, s 454 and s 501J).” Having done so, the Tribunal finds that it is not satisfied that the circumstances of the case are unique or exceptional such that they fall within the guidelines for referral to the Minister. The Tribunal has therefore decided not to refer the matter for possible ministerial intervention under s.351 of the Act. The Tribunal however notes that it remains open to the applicant to make a relevant application for such consideration through the Department directly.

    DECISION

28. The Tribunal affirms the decision not to grant the applicant a Partner (Residence) (Class BS) visa.

    Mary Cameron
    Member