1506520 (Migration)

[2015] AATA 3064

1506520 (Migration) [2015] AATA 3064 (9 July 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ahmad Azzam

CASE NUMBER:  1506520

DIBP REFERENCE(S):  CLF2010/135341

MEMBER:Alan Duri

DATE:9 July 2015

PLACE OF DECISION:  Sydney

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

Statement made on 09 July 2015 at 8:59am

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 29 April 2015 to refuse to grant Mr Azzam a Partner (Residence) (Class BS) Subclass 801 visa under s.65 of the Migration Act 1958 (the Act).

2. The following is a history of the application:

   ·On 6 October 2010 Mr Azzam applied for combined Class UK (Partner Temporary) (Subclass 820) and Class BS (Partner Residence) (Subclass 801) on the grounds of being in a spousal relationship with an Australian citizen, Ms Duaa Tamer.

   ·On 22 September 2011 the department refused to grant the visa on the basis that Mr Azzam did not satisfy cl.820.211 because the delegate was not satisfied that Mr Azzam and Ms Tamer were in a spousal relationship.

   ·On 17 January 2014 the Migration Review Tribunal affirmed the decision not to grant Mr Azzam a Partner (Temporary) (Class UK) visa.

3. On 29 April 2015 the department renotified Mr Azzam of the decision to refuse his application for a Partner (Residence) (Class BS) (Subclass 801) visa.  

   Hearing

4. Mr Azzam appeared before the tribunal on 9 July 2015 to give evidence and present arguments.

5. Mr Azzam told the tribunal that he does not hold a Subclass 820 visa.

6. Mr Azzam told the tribunal that he remarried two years ago.  They have a young child and his wife is expecting their second child in October 2015.  Mr Azzam’s current wife Ms Sonia Mustafa indicated that they lodged a request for Ministerial intervention in January 2014.  However they have not yet heard the result.  The tribunal suggested that Mr Azzam contact the department to find out the progress of the request and to update the department with their current circumstances.    

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The question in this case is whether Mr Azzam meets the requirements for a Subclass 801 visa.

8. The criteria for a Subclass 801 visa are attached to this decision.  An essential requirement for a Subclass 801 visa is that “the applicant is the holder of a Subclass 820 visa”.   

9. As Mr Azzam is not the holder of a Subclass 820 visa it follows that he cannot be granted a Subclass 801 visa.

   DECISION

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

    Alan Duri
    Member

    
    

    ATTACHMENT

    801.22 Criteria to be satisfied at time of decision

    801.221          (1)       The applicant meets the requirements of subclause (2), (2A), (3), (4), (5), (6) or (8).

    (2)       An applicant meets the requirements of this subclause if:
    (a)       the applicant is the holder of a Subclass 820 visa; and
    (b)       the applicant continues to be sponsored for the grant of the Subclass 820 (Partner) visa by:

    (i)        the sponsoring partner; or

    (ii)       the Australian citizen, Australian permanent resident or eligible New Zealand citizen who sponsored the applicant for that visa; and
    (c)       the applicant is the spouse or de facto partner of the sponsoring partner; and
    (d)       subject to subclauses (6A) and (7), at least 2 years have passed since the application was made.
               (2A)     An applicant meets the requirements of this subclause if:
    (a)       the applicant is the holder of a Subclass 820 (Spouse) visa or a Subclass 820 (Partner) visa which the Minister has decided, under section 345, 351, 417 or 501J of the Act, to grant to the applicant; and
    (b)       the applicant is the spouse or de facto partner of the sponsoring partner; and
    (c)       subject to subclauses (6A) and (7), at least 2 years have passed since the Minister made the decision mentioned in paragraph (a).

    (3)       An applicant meets the requirements of this subclause if the applicant is the holder of a Subclass 820 visa granted on the basis that the applicant met the requirements of subclause 820.221 (2).

    (4)       An applicant meets the requirements of this subclause if the applicant is the holder of a Subclass 820 visa granted on the basis that the applicant met the requirements of subclause 820.221 (3).

    (5)       An applicant meets the requirements of this subclause if the applicant:
    (a)       is the holder of a Subclass 820 visa; and
    (b)       would meet the requirements of subclause (2) or (2A) except that the sponsoring partner has died; and
    (c)       satisfies the Minister that the applicant would have continued to be the spouse or de facto partner of the sponsoring partner if the sponsoring partner had not died; and
    (d)       has developed close business, cultural or personal ties in Australia.

    (6)       An applicant meets the requirements of this subclause if:
    (a)       the applicant is the holder of a Subclass 820 visa; and
    (b)       the applicant would meet the requirements of subclause (2) or (2A) except that the relationship between the applicant and the sponsoring partner has ceased; and
    (c)       either or both of the following circumstances applies:

    (i)        either or both of the following:
    (A)      the applicant;
    (B)      a dependent child of the sponsoring partner or of the applicant or of both of them;
    has suffered family violence committed by the sponsoring partner;

    (ii)       the applicant:
    (A)      has custody or joint custody of, or access to; or
    (B) has a residence order or contact order made under the Family Law Act 1975 relating to;
    at least 1 child in respect of whom the sponsoring partner:
    (C)      has been granted joint custody or access by a court; or
    (D) has a residence order or contact order made under the Family Law Act 1975; or
    (E) has an obligation under a child maintenance order made under the Family Law Act 1975, or any other formal maintenance obligation.
    Note: For special provisions relating to family violence, see Division 1.5.
               (6A)     Paragraphs (2) (d) and (2A)(c) do not apply to an applicant who at the time of making the application was in a long-term partner relationship with the sponsoring partner.

    (7)       Nothing in paragraphs (2)(d) and (2A)(c) prevents the Minister, less than 2 years after the application is made:
    (a)       refusing to grant a Subclass 801 visa; or
    (b)       in the case of an application made before 1 November 1996, granting a subclass 801 visa to an applicant who was granted a Subclass 820 visa on the basis that he or she satisfied the requirements of subclause 820.211 (3) or (5); or
    (c)       granting a Subclass 801 visa to an applicant who was granted:

    (i)        an extended eligibility (spouse) (code number 820) entry permit under the Migration (1989) Regulations; or

    (ii) a Class 820 (extended eligibility (spouse)) entry permit under the Migration (1993) Regulations;
    other than an applicant whose application was in accordance with approved form 47SP or 887; or
    (d)       approving the grant of a Subclass 801 visa to an applicant who meets the requirements of subclause (5) or (6).

    (8)       The applicant meets the requirements of this subclause:
    (a)       if the applicant held a Subclass 820 (Partner) visa that ceased on notification of a decision of the Minister to refuse a Subclass 801 visa; and
    (b)       if the Tribunal:

    (i)        has remitted that decision for reconsideration and, as a result, the Minister decides that the applicant satisfies the criteria for the grant of a Subclass 801 visa apart from the criterion that the applicant hold a Subclass 820 visa; or

    (ii)       has determined that the applicant satisfies the criteria for the grant of a Subclass 801 visa apart from the criterion that the applicant hold a Subclass 820 visa