1503287 (Migration)

[2015] AATA 3430

1503287 (Migration) [2015] AATA 3430 (18 September 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Bhupinder Kaur
Miss Harpreet Kaur
Master Navpreet Singh

CASE NUMBER:  1503287

DIBP REFERENCE(S):  CLF2008/4684 CLF2014/130999

MEMBER:Carolyn Wilson

DATE:18 September 2015

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal remits the applications for Partner (Residence) (Class BS) visas for reconsideration, with the direction that the first named applicant meets the following criteria for Subclass 801 (Spouse) visas:

·cl.801.226 of Schedule 2 to the Regulations.

Statement made on 18 September 2015 at 11:35am

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 19 February 2015 to refuse to grant the applicants Partner (Residence) (Class BS) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 4 January 2008. The delegate refused to grant the visas on the basis that the first named applicant (the applicant) did not satisfy the requirements of cl.801.226 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because they did not satisfy Public Interest Criterion (PIC) 4020. They failed to satisfy PIC 4020 because the delegate found they provided false and misleading information to the Department and to the Tribunal.

3. The applicants were represented in relation to the review by their registered migration agent.

4. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The issue in this review is whether the visa applicant meets cl.801.226.

6. The delegate made a decision that the applicant was in breach of PIC 4020 due to evidence that she had provided false and misleading information to the Department and Tribunal.  

7. However, the Tribunal finds the Regulations governing PIC 4020 do not apply to the applicant for the following reasons.

8. Public interest criterion 4020 was inserted in cl.801.226 by the Migration Legislation Amendment Regulations 2013 (No.3) (SLI2013. No.146) (the amending regulations), which commenced on 1 July 2013. Relevantly, item 41 of Schedule 7 to the amending regulations amended cl.801.226 to ‘omit “criterion 4021”, and substitute “criteria 4020 and 4021”.’ The transitional provision states that this amendment applies in relation to an application for a visa made, but not finally determined before 1 July 2013 or made on or after 1 July 2013: see item 2 of Schedule 10 to the amending regulations.

9. However, for visa applications made before 24 November 2012, the applicable version of cl.801.226 does not refer to “criterion 4021”. The version of cl.801.226 applicable to a visa application lodged prior to 24 November 2012 is as follows:

   801.226

   The Minister is satisfied that:

   (a)      the applicant is the holder of a valid passport that:

   (i)      was issued to the applicant by an official source; and
   (ii)      is in the form issued by the official source; or

   (b)      it would be unreasonable to require the applicant to be the holder of a passport.

10. Although cl.801.226 was amended on 24 November 2012 by item 207 of Schedule 2 to the Migration Legislation Amendment Regulation 2012 (No.5) (SLI 2012, No.256), where cl.801.226 was substituted to require ‘The applicant satisfies public interest criterion 4021’, this amendment only applies in relation to an application for a visa made on or after 24 November 2012: see item 1 of Schedule 7 to SLI 2012, No. 56. As such, the Tribunal is of the view that this amendment does not extend to the version of cl.801.226 for visa applications made before 24 November 2012.

11. The Tribunal considers that whilst the legislative amendments were designed to include PIC 4020 as a criterion for all unresolved Subclass 801 visa applications, technical drafting issues have led to a more limited operation. The Tribunal finds the PIC 4020 amendment to cl.801.226 applies only to applications made on or after 24 November 2012.

12. The date of application for the visa, the subject of this review, was 4 January 2008. Therefore the applicant needs to meet the version of cl.801.226 extracted above at [9].

13. The Tribunal finds the applicant was the holder of a valid passport issued to her by an official source and in the form issued by the official source (f. 24 Department file). She therefore satisfies d cl.801.226.

    DECISION

14. The Tribunal remits the applications for Partner (Residence) (Class BS) visas for reconsideration, with the direction that the first named applicant meets the following criteria for Subclass 801 (Spouse) visas:

    ·cl.801.226 of Schedule 2 to the Regulations.

    Carolyn Wilson
    Member