1502629 (Migration)

[2016] AATA 3270

1502629 (Migration) [2016] AATA 3270 (12 February 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Rajan

CASE NUMBER:  1502629

DIBP REFERENCE(S):  CLF2013/131652

MEMBER:Sue Raymond

DATE:12 February 2016

PLACE OF DECISION:  Adelaide

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

Statement made on 12 February 2016 at 2:27pm

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 28 June 2013 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 12 June 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).

3. The matter was considered by a delegate and a decision made on 28 June 2013 to refuse the visa. The delegate, in the same decision record, looked at both the application for a Class UK (Partner-Temporary) (subclass 820) visa [hereafter referred to as a subclass 820 visa] and Class BS (Partner-Residence)(subclass 801) visa [hereafter referred to as a subclass 801visa] and determined that the applicant did not satisfy the requirements for either subclass of visa.

4. The applicant lodged an application for review of that decision and the Tribunal (differently constituted) considered whether the applicant met the requirements of the subclass 820 visa and determined that he did not. The Tribunal affirmed the decision to refuse the subclass 820 visa.

5. The department sent further correspondence on 2 February 2015 via email to the applicant, indicating that the applicant was not correctly notified that the application for the grant of a Partner (Residence) (Class BS)(Subclass 801) visa had been refused.  The letter renotified the applicant of the refusal decision in relation to the subclass 801 visa. The letter expressly stated that the applicant was not being re-notified of the decision on the Partner (Temporary)(Class UK) (Subclass 820) visa application.

6. The Tribunal concludes that as the applicant was not re-notified of the subclass 820 decision he has no right to seek review of that decision again. In any event, there has already been a review conducted of the subclass 820 decision. The only decision which can be reviewed by this Tribunal is that related to the subclass 801 decision.

7. The Tribunal is satisfied that the applicant sought review of the Subclass 801 decision within the requisite time period from the re-notification on 2 February 2015, and that it is a valid application for review.

8. The relevant portion of the decision, related to the subclass 801 visa, is to the effect that as the application for the Subclass 820 visa has been refused, the applicant is not the holder of a subclass 820 visa. Consequently, the applicant does not fulfil the requirements of the alternative paragraphs (2),(2A),(3),(4),(5) or (6). The decision record refers to the requirements in (6A) and (7) but they in turn relate to (2) and (2A) which are not met. The delegate also determined that the applicant has not previously held a subclass 820 visa that was refused, reviewed by the Tribunal and remitted for reconsideration. Consequently the delegate determined that the applicant did not meet any of the requirements of cl.801.221. As cl.801.221 is not satisfied, the delegate determined that the applicant did not satisfy the requirement for a Subclass 801 visa.

9. The applicant appeared before the Tribunal on 11 February 2016 to give evidence and present arguments.

10. The applicant was represented in relation to the review by his registered migration agent who did not attend the hearing. The hearing response received by the Tribunal indicated that he was not going to attend the hearing.

11. At the hearing the Tribunal outlined the background to this application for review, including the original visa application for both visas, the delegate’s decision in June 2013, the decision of a different constituted Tribunal in relation to the subclass 820 decision, the re-notification of the subclass 801 decision by the department which led to the current application for review. The Tribunal asked the applicant whether he understood the basis for the previous decision of the Tribunal. The Tribunal could only consider the decision related to the subclass 801 visa.

12. The Tribunal asked the applicant whether he held, or had held, a subclass 820 visa. The Tribunal is mindful that the situation of having held a subclass 820 visa is further circumscribed by the requirements set out in He said that he thought he did not have such a visa. In light of the lack of clarity of the applicant’s answer, the Tribunal put to Mr Rajan, pursuant to section 359AA of the Act, information obtained from departmental movement records to the effect that he does not hold, and has not held, a subclass 820 visa.

13. He indicated that he sought additional time to provide a response or comment. The Tribunal determined that it would not afford additional time for a comment or response as no appropriate basis to seek additional time was provided. It could only relate to the issue of whether he held a subclass 820 visa. Mr Rajan said that he thought that he might have had such a visa before the last Tribunal hearing. The Tribunal indicated that the departmental movement records do not show that to be the case. The applicant has held only different bridging visas other than his substantive student visa. In considering the applicant’s request, the Tribunal noted that the Tribunal decision record [of the differently constituted Tribunal] states that the delegate refused to grant a subclass 820 visa and the previous Tribunal was reviewing that decision and decided to affirm the decision to refuse the visa. Consequently, there was no subclass 820 visa in existence at that time. The Tribunal notes that on occasions it might be appropriate to allow additional time for a comment or response to be made but, in the circumstances of this case, it determined not to allow additional time.

14. The Tribunal explained that this review could not canvass the issues about the subclass 820 visa. Documents had been submitted to the Tribunal by the representative, which included joint bank account information, security bond information and documentation for a house purchase. The decision about that matter has already been the subject of review and this Tribunal cannot review another Tribunal’s decision. Mr Rajan may wish to obtain legal and/or migration advice about his situation. The Tribunal indicated that it cannot give advice. The issue in this review is a limited one as to whether he held, or had held, a Subclass 820 visa in so far as it relate to the requirements for a subclass 801 visa.

15. The Tribunal finds that the applicant does not hold, and has not held a Subclass 820 visa. Consequently, he does not satisfy the requirements for a Subclass 801 visa as he does not satisfy any of the requirements set out in in cl.801.221(1) and cl.801.221 is not met.

16. For the reasons above, the applicant does not satisfy the criteria for the grant of the visa. The Tribunal determines that the decision under review is affirmed.

    DECISION

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

    Sue Raymond
    Senior Member