1505785 (Migration)

[2016] AATA 3515

1505785 (Migration) [2016] AATA 3515 (3 March 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr SANJEEV KUMAR

CASE NUMBER:  1505785

DIBP REFERENCE(S):  CLF2012/73065

MEMBER:D. Dimitriadis

DATE:3 March 2016

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Partner (Residence) (Class BS) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 801 (Partner) visa:

·Clause 801.226 of Schedule 2 to the Regulations.

Statement made on 03 March 2016 at 3:25pm

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 1 April 2015 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 is a national of India. He applied for the visa on 21 March 2012 on the basis of his relationship with his sponsor. 

3. The delegate refused to grant the visa on the basis that the applicant did not satisfy cl.801.226 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the delegate found that the applicant did not meet Public Interest Criterion (PIC) 4020.

4. The applicant applied to the Tribunal for review of this decision and provided a copy of the delegate’s decision record.

5. In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the applicant on the basis of the material before it, pursuant to s.360(2)(a) of the Act.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The delegate found that the applicant did not meet PIC 4020 on the basis that the applicant had given or caused to be given information that is false or misleading in a material particular about the genuineness of his relationship with his sponsor.  

8. For the following reasons, the Tribunal has concluded that there is no requirement for the applicant to meet PIC 4020.

9. The PIC 4020 requirement was inserted as a criterion in Schedule 2 of the Regulations for Subclass 801 visas by the Migration Legislation Amendment Regulation 2013 (No.3) (SLI 2013, No.146).

10. The heading at Schedule 7 is ‘Amendments relating to Public Interest Criterion 4020’. Item 41 of Schedule 7 of the amending regulation purported to amend cl.801.226 by omitting ‘criterion 4021’ and substituting ‘criteria 4020 and 4021’. However, at the time of application on 21 March 2012, cl.801.226 was a primary criterion requiring the applicant to be a holder of a valid passport. There is no reference in that clause to criterion 4020 or criterion 4021.

11. The amendments purport to apply to all unresolved applications as at 1 July 2013, but due to drafting technicalities, were not compatible with the form of the pre 24 November 2012 version of the criteria. The Tribunal finds that the transitional provisions that introduced PIC 4020 did not validly incorporate the PIC 4020 requirement to applications made in March 2012. The Tribunal finds that at time of application PIC 4020 was not a criterion which the applicant had to satisfy.

12. In this case the delegate applied incorrect law in requiring the applicant to meet PIC 4020 and refusing to grant the applicant a Subclass 801 visa on the basis of not meeting that requirement.

13. In light of the above, the legally correct approach is for the Tribunal to make its decision on the basis of whether the applicant meets cl.801.226 as it was at the time of application. Clause 801.226 provides:

    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.

14. There is evidence on the Department’s file (at folio 57) of a copy of an Indian passport issued to the applicant. There is nothing before the Tribunal to indicate that it was not issued to the applicant by an official source or that it is not in the form issued by the official source. On the basis of the above, the Tribunal finds that applicant satisfies cl.801.226 as it applied at the time of application.

15. Given the above findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

    DECISION

16. The Tribunal remits the application for a Partner (Residence) (Class BS) visa for reconsideration, with the direction that the applicant meets the following criteria for Subclass 801 (Spouse) visa:

    ·Clause 801.226 of Schedule 2 to the Regulations.

    D. Dimitriadis
    Member