1504093 (Migration)

[2015] AATA 3218

1504093 (Migration) [2015] AATA 3218 (27 July 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Thi Tuyet Hanh Hoang

CASE NUMBER:  1504093

DIBP REFERENCE(S):  CLF2011/16195

MEMBER:Don Smyth

DATE:27 July 2015

PLACE OF DECISION:  Brisbane

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

Statement made on 27 July 2015 at 1:18pm

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 21 November 2012 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 8 February 2011 on the basis of her relationship with her 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. According to the information provided in the application, the applicant is a citizen of Vietnam. The Department was provided with extracts from her Vietnamese passport as well as copies of other identity documents. She indicated that she was living at an address in Inala at the time of the visa application. The applicant was sponsored in connection with the application by Mr Quang Nguyen (the sponsor) who was also born in Vietnam. Mr Quang is an Australian citizen as evidenced by the citizenship certificate and Australian passport produced to the Department.

4. It was claimed that the applicant and the sponsor had first met on 20 April 2007 and that they had married in Inala on 21 March 2008. A copy of the marriage certificate was submitted to the Department along with numerous other documents relating to the claimed relationship. The documentation included, for instance, statements from the applicant and the sponsor, statutory declarations and statements from a number of witnesses, bank statements for a joint account, tax records and a financial statement.

5. On 21 November 2012, a delegate of the Minister made a decision to refuse to grant the applicant a Subclass 820 visa. The delegate was not satisfied that the applicant was the spouse of the sponsor at the time of application. The delegate was not satisfied that the applicant met cl.820.211(2) or any of the other subclauses of cl.820.211. The delegate also made a decision to refuse the applicant a Subclass 801 visa.

6. The applicant had applied for a Subclass 820 visa and a Subclass 801 visa. However, the decision notification of 21 November 2012 informed the applicant only that she had been refused a Partner (Temporary) (Class UK) visa and that review could be sought in respect of that decision.

7. On 17 December 2012, the applicant applied to the Tribunal for review of the decision to refuse to grant her a Partner (Temporary) (Class UK) visa. On 23 April 2014, the Migration Review Tribunal (differently constituted) made a decision to affirm the decision not to grant the visa applicant a Partner (Temporary) (Class UK) visa.

8. Evidence on the Department’s file indicates that the applicant subsequently made a request for Ministerial intervention. In support of the request, additional material was submitted to the Department, including further statements from the applicant and the sponsor, business and financial records, receipts, bank statements, medical records, a will, the sponsor’s Driver Licence and a sponsorship form.

9. The Department determined that the notification of the decision of 21 November 2012 was defective with regard to the refusal of the Subclass 801 visa in the sense that it referred only to Subclass 820. On 19 March 2015, the Department sent the applicant a further letter notifying her of the decision of 21 November 2012 to refuse to grant her a Partner (Residence) (Class BS) (Subclass 801) visa.

10. On 24 March 2015, the applicant applied for review of the decision of 21 November 2012 to refuse to grant her a Subclass 801 visa.

11. On 14 May 2015, the Tribunal sent the applicant a letter putting to her that it appeared that the review application was not valid because the Tribunal had reviewed the same delegate’s decision of 21 November 2012. However, the previous Tribunal review related to the decision to refuse to grant a Subclass 820 visa. The applicant has now applied for review of the decision to refuse to grant her a Subclass 801 visa. The Tribunal accepts that the Department’s notification letter of 21 November 2012 was defective in the sense that it did not refer to the refusal of the Subclass 801 visa. It accepts that the applicant was not validly notified of the refusal of the Subclass 801 visa until the second decision notification was e-mailed to the applicant’s representative on 19 March 2015. In these circumstances, the Tribunal is satisfied that it has jurisdiction to review the decision of 21 November 2012 to refused to grant the applicant a Partner (Residence) (Class BS) visa.

12. By letter of 6 July 2015, the Tribunal invited the applicant to attend a hearing on 23 July 2015. The Tribunal received a further submission from the representative dated 15 July 2015. The submission referred to additional evidence, including statutory declarations from the applicant and the sponsor, copies of statutory declarations made by the applicant in support of the request for Ministerial Intervention, bank statements, Driver Licences, a receipt issued by the Registry of Births, Deaths and Marriages, a record of health insurance cover, taxation records, business records, a will, a record of vehicle ownership and a copy of a letter from the Office of Ministerial Intervention stating that it would be inappropriate for the Minister to intervene as the applicant had an ongoing review at the MRT. The Tribunal was also provided with photographs which were described as showing the birth of the daughter of the applicant and the sponsor.

13. The Tribunal notes that, in a statutory declaration of 14 July 2015, the sponsor indicated that he had notified the Department on 2 May 2012 that he and the applicant were not living together but indicated that this was only a temporary separation due to family issues. The statement indicated that they did live separately for three months and 18 days but this was only temporary. A timeline was provided in the statutory declaration. This indicated that, on 23 April 2014, the Migration Review Tribunal (the MRT) had made a decision to uphold the Department’s decision not to grant a Partner visa to the applicant and that the applicant had lodged a request for Ministerial Intervention on 20 May 2014. Reference was made to the correspondence from the Department on 8 April 2015 stating that it would be inappropriate for the Minister to intervene as the applicant had an ongoing review at the MRT. It was submitted that the applicant had lost the chance of being considered for the grant of a Partner visa because the delegate had sent the notification of 19 March 2015. The statutory declaration addressed the financial aspects, the nature of the household, the social aspects and the commitment. The statutory declaration included comments on the Departmental and MRT decisions. In a statutory declaration of 19 May 2015, the applicant also noted that, on 23 April 2014, the MRT had upheld the Department’s decision to refuse to grant her a Partner visa. She referred to her request for Ministerial intervention. She questioned why the Department had sent her the notification of refusal while she was still waiting for a favourable decision from the Minister.

14. The representative made written submissions which address a range of criteria, including cl.309.211 and cl.820.221. Submissions were made to the effect that the applicant is the spouse of the sponsor. Reference was also made to the applicant’s business, cultural and personal ties in Australia. With regard to the spouse relationship, it was submitted that the parties had been legally married on 20 March 2008 and, except for a period of three months and 18 days when they lived separately due to a family feud, they had been living together under the same roof since 20 March 2008. The submission also addressed the various aspects of their relationship. It was submitted that they had a newly born daughter.

15. The applicant appeared before the Tribunal on 23 July 2015 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages. The applicant provided further documentary evidence at the hearing, including a birth certificate for her daughter. Her daughter was born on 1 July 2015. The sponsor is named as the father.

16. The applicant was represented in relation to the review by her registered migration agent.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

18. The issue in the present case is whether the applicant satisfies the requirements of cl.801.221.

19. Clause 801.221 of the Regulations sets out criteria to be satisfied at the time of decision.  Subclause (1) of cl.801.221 provides that an applicant must meet the requirements of sub-clause (2), (2A), (3), (4), (5), (6) or (8).  Each of those subclauses includes the requirement that the applicant is the holder of, or has held, a Subclass 820 visa.

20. The information before the Tribunal indicates that the applicant’s application for a Subclass 820 visa was refused by the Department on 21 November 2012. The decision not to grant her a Subclass 820 visa was affirmed by the Migration Review Tribunal on 23 April 2014. The Tribunal put relevant information to the applicant for her comment or response at the hearing in accordance with the procedure in s.359AA of the Act. It put to her that the information suggested that she has been refused a Subclass 820 visa and is not the holder of a Subclass 820 visa and has never been the holder of a Subclass 820 visa. It put to her that, in order to meet the requirements for the grant of a Subclass 801 visa, she must be the holder of, or have held, a Subclass 820 visa. It put to her that the information might lead the Tribunal to conclude that she had never held a Subclass 820 visa and did not meet the requirements for the grant of a Subclass 801 visa. It explained that, if the Tribunal were to reach those conclusions, it would affirm the decision to refuse to grant her a Subclass 801 visa. The Tribunal explained to the applicant that the information was information that would, subject to her comment or response, be the reason or part of the reason for affirming the decision to refuse to grant her the visa. It informed her that she could, if she wished, seek additional time to comment or respond. At the applicant’s request, the Tribunal adjourned the hearing for ten minutes before the applicant provided her comment or response.

21. The applicant said that, although her name was put as applicant in the form, it was her husband who filled the form in for her. It was a confusing form because they did not understand what Subclass 820 was for and what Subclass 801 was for. She stated that she really wished that she could be granted a visa to stay in Australia with her husband and her child. She said that at the time they lodged the visa application the first time they did it on their own without any professional help. Now they had a migration agent but he did not have a full understanding of the history of the matter. The applicant’s representative also made submissions at the hearing. These included submissions relating to the length and genuineness of the relationship. He referred to the request for Ministerial intervention. He indicated initially that the applicant had never applied for a Partner Resident visa and appeared to suggest that he wished to concentrate on the Subclass 820 visa. Following the break in the hearing, the representative acknowledged that the review application related to Subclass 801.

22. As the Tribunal explained at the hearing, the information indicates that the applicant applied for both a Subclass 820 and a Subclass 801 visa on 8 February 2011. The initial suggestion that the applicant had not applied for a Subclass 801 visa is misconceived. The applicant acknowledged that she had signed the visa application. The applicant in fact applied to the Tribunal for review of a decision in relation to Subclass 801. This does not sit comfortably with the suggestion that the applicant had not applied for a Subclass 801 visa. While the representative initially appeared to suggest that he wished to focus on Subclass 820, the Subclass 820 decision was previously reviewed by the MRT. In any event, the applicant was notified of the refusal decision in relation to the Subclass 820 visa application on 21 November 2012. It would appear that the Tribunal would not have had jurisdiction to review the refusal of the Subclass 820 decision on the basis of a review application lodged on 24 March 2015. The Department notified the applicant of the refusal of the Subclass 801 visa on 19 March 2015. The applicant applied for review of that decision on 24 March 2015. It is clear that the Tribunal is reviewing the decision to refuse to grant the applicant a Subclass 801 visa. The representative ultimately acknowledged at the hearing that this was the correct approach.

23. As outlined above, each of the relevant subclauses of cl.801.221 includes the requirement that the applicant is the holder of, or has held, a Subclass 820 visa. The evidence indicates that the applicant has never held a Subclass 820 visa. Therefore she does not meet the requirements of cl.801.221.

24. At the hearing, the sponsor, Mr Quang, questioned why the Department had issued two notifications relating to the refusal decision. The Tribunal appreciates that this caused some confusion for the applicant and the sponsor. However, as explained at the hearing, the notification of 19 March 2015 was issued because the notification letter of 21 November 2012 failed to refer to the refusal of the Subclass 801 visa and was therefore defective.

25. The Tribunal notes that submissions have been made in relation to the spouse relationship. Additional material has been produced to the Department. However, as set out above, the applicant does not meet the requirements for a Subclass 801 visa in circumstances where she has never held a Subclass 820 visa. In these circumstances, it is not necessary for the Tribunal to consider whether the applicant and the sponsor are in a spouse relationship. It is apparent that the applicant has sought to have the matter considered by the Minister pursuant to s.351 of the Act. The Tribunal understands that the applicant would now intend to pursue this matter.

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

    DECISION

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

    Don Smyth
    Senior Member