1512404 (Migration)

[2016] AATA 3525

1512404 (Migration) [2016] AATA 3525 (10 March 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Kenneth Steven Frye Jr

CASE NUMBER:  1512404

DIBP REFERENCE(S):  clf2012/42480

MEMBER:Jane Bishop

DATE:10 March 2016

PLACE OF DECISION:  Brisbane

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

Statement made on 10 March 2016 at 10:01am

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 7 May 2013 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 19 January 2012 on the basis of his relationship with his 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).

3. The matter was considered by a delegate and a decision made on 7 May 2013 to refuse the visa. The delegate, in the same decision record, looked at both the application for a Class UK (Partner-Temporary) (Subclass 820) visa and Class BS (Partner-Residence) (Subclass 801) visa and determined that the applicant did not satisfy the requirements for either Subclass of visa.

4. The applicant lodged an application for review of that decision and the Tribunal (differently constituted) considered whether the applicant met the requirements of the Subclass 820 visa and determined that he did not. The Tribunal affirmed the decision to refuse the Subclass 820 visa on 26 September 2014.

5. The department sent further correspondence on 20 August 2015 via email to the applicant, indicating that the applicant was not correctly notified in relation to the Subclass 801 visa refusal decision and the correspondence was a re-notification of that decision. The letter expressly stated that the applicant was not being re-notified of the decision to refuse his Subclass 820 visa.

6. The Tribunal concludes that as the applicant was not re-notified of the Subclass 820 decision he has no right to seek review of that decision again. In any event, there has already been a review conducted of the Subclass 820 decision. The only decision which can be reviewed by this Tribunal is that related to the Subclass 801 decision.

7. The Tribunal is satisfied that the applicant sought review of the Subclass 801 decision within the requisite time period from the re-notification on 20 August 2015, and that it is a valid application for review.

8. The relevant portion of the decision, related to the Subclass 801 visa, is to the effect that as the application for the Subclass 820 visa has been refused, the applicant is not the holder of a Subclass 820 visa. Consequently, the applicant does not fulfil the requirements of the alternative paragraphs (2),(2A),(3),(4),(5) or (6). The decision record refers to the requirements in (6A) and (7) but they in turn relate to (2) and (2A) which are not met. The delegate also determined that the applicant has not previously held a Subclass 820 visa that was refused, reviewed by the Tribunal and remitted for reconsideration. Consequently the delegate determined that the applicant did not meet any of the requirements of cl.801.221. As cl.801.221 is not satisfied, the delegate determined that the applicant did not satisfy the requirement for a Subclass 801 visa.

9. The applicant appeared before the Tribunal on 10 March 2016 to give evidence and present arguments. He was accompanied by his sponsor Ms Olivia Braica.

10. During the hearing the Tribunal explained to the applicant that it could only consider the decision related to the Subclass 801 visa. The Tribunal asked the applicant if he has held or holds a Subclass 820 visa and the applicant responded no. He confirmed that the department refused his 820 visa application and that decision was reviewed by the Tribunal.

11. The Tribunal put to the applicant that cl.801.221 requires him to have held, or be the holder of a Subclass 820 visa. The Tribunal put to the applicant that, on his own evidence, he has never held or does not hold a Subclass 820 visa and that would mean he cannot met the requirements of cl.801.221 and the decision under review would need to be affirmed. The applicant responded that he has been in Australia a long time.

12. The Tribunal finds that the applicant does not hold, and has not held a Subclass 820 visa. Consequently, he does not satisfy the requirements for a Subclass 801 visa as he does not satisfy any of the requirements set out in cl.801.221(1) and cl.801.221 is not met.

13. For the reasons above, the applicant does not satisfy the criteria for the grant of the visa. The Tribunal determines that the decision under review is affirmed.

    DECISION

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

    Jane Bishop
    Member