1511299 (Migration)

[2016] AATA 3269

1511299 (Migration) [2016] AATA 3269 (16 February 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Thi Yen Linh Truong

CASE NUMBER:  1511299

DIBP REFERENCE:  OSF2012115916

MEMBER:Deborah Morgan

DATE:16 February 2016

PLACE OF DECISION:  Adelaide

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

Statement made on 16 February 2016 at 10:31am

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 22 July 2015 to refuse to grant the visa applicant a Partner (Migrant) (Class BC) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 31 December 2012 as a secondary visa applicant to the application by Mr Van Tan Truong (the primary visa applicant) who applied for the visa on the basis of his relationship with his sponsoring spouse, Ms Thia Ha Tran. At that time, Class BC contained one subclass: Subclass 100 (Partner). 

3. The primary visa applicant did not apply for review of the decision by the delegate to refuse him a Partner (Migrant) visa. The delegate’s decision records that the primary visa applicant departed Australia on 1 December 2014.

4. The criteria for the grant of a Subclass 100 visa are set out in Part 100 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The primary criteria must be satisfied by at least one applicant.

5. 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 applicant needs to satisfy the criteria in clause 100.321. 

6. The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy cl.100.321 because the primary visa applicant did not meet the legislative requirements in clause 100.221.

7. By letter dated 22 January 2016 the Tribunal invited the applicant to a hearing in Adelaide at 9.30am on 16 February 2016.

8. On 12 February 2016 the applicant’s representative informed the Tribunal that the applicant wished her application to be decided “on the papers” and that following the Tribunal’s decision the applicant intends to seek Ministerial intervention.

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

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. The issue in the present case is whether the applicant meets clause 100.321 which is to be satisfied at time of decision.  

12. The applicant is a citizen of Vietnam born on 20 February 1996. Accordingly, she is aged 19 years at time of decision.

13. The applicant was included as a secondary visa applicant in the application by Mr Van Tan Truong for Partner visas in Subclass 309 and Subclass 100.

14. On 11 July 2013 the applicant was granted a Subclass 309 Partner visa.

15. The delegate’s decision records that on 16 April 2013 the sponsor withdrew her sponsorship from the application. 

    Findings

16. The applicant has informed the Tribunal that she does not intend to attend the Tribunal hearing at 9.30am on 16 February 2016 and that the Tribunal should decide her application for review on the basis of the information before it. The Tribunal therefore proceeds to decision pursuant to its powers in section 360(2) of the Act.

17. Clause 100.321 provides a secondary applicant meets the criteria for the grant of the visa if the secondary applicant is the member of the family unit of another person who was the holder of a Subclass 309 visa and that other person has been granted a Subclass 100 visa.

18. In this case the “other person” is Mr Van Tan Truong.

19. The evidence is that Mr Van Tan Truong was refused a Subclass 100 visa on 22 July 2015. Accordingly, the Tribunal is satisfied that the “other person” referred to in cl.100.321 has not been granted a Subclass 100 visa.

20. For the above reasons the applicant fails to meet the criteria in cl.100.321.

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

    Ministerial Intervention

22. On occasions the Tribunal refers cases to the Minister of Immigration and Border Protection for consideration of Ministerial intervention. In doing so the Tribunal takes into account guidelines which are promulgated as to the types of matters which are likely to attract the Minister’s intervention.

23. The Tribunal has considered the guidelines in relation to Ministerial intervention but has determined not to refer the matter in this case.

24. The applicant is at liberty to refer his case to the Minister for intervention if she wishes to do so.[1] 

    [1] Information about the process is contained on the Department of Immigration’s website at >

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

    Deborah Morgan
    Member