1514651 (Migration)

[2016] AATA 4730

1514651 (Migration) [2016] AATA 4730 (23 November 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Tevita Ravulo Uluiviti

CASE NUMBER:  1514651

DIBP REFERENCE(S):  CLF2013/103807

MEMBER:Helena Claringbold

DATE:23 November 2016

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Partner (Temporary) (Class UK) visa, with the direction that the applicant meets the following criteria for a Subclass 820 (Partner (Temporary)) visa:

·PIC 4004 for the purposes of cl.820.223 of Schedule 2 to the Regulations.

Statement made on 23 November 2016 at 3:09pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. On 10 May 2013, Mr Tevita Ravulo Uluiviti applied for a Partner (Temporary) (Class UK) visa under s.65 of the Migration Act 1958 (the Act).  The application was based on his de facto relationship with Ms Miliakere Tirau Koruilagi, the sponsor.

2. On 8 October 2015, a delegate of the Minister for Immigration refused to grant the visa. The delegate was not satisfied that Mr Uluiviti satisfied Public Interest Criteria 4004. On that basis cl.820.223 of Schedule 2 to the Migration Regulations 1994 was not met. As a result Mr Uluiviti did not meet the criteria for the grant of the visa. This is a review of the delegate’s decision.

3. On 21 November 2016, the applicant appeared before the Tribunal to give evidence and present arguments. He provided the Tribunal with a copy of the delegate’s decision record.  The Tribunal also received oral evidence from Ms Koruilagi. The Tribunal hearing was conducted with the assistance of an interpreter in the Fijian and English languages.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The Tribunal has taken into consideration all the evidence in the Departmental case file CLF2013/103807, folios numbered 1-202, and the Tribunal’s case file 1514651, folios numbered 1-76 and the oral evidence given at the Tribunal hearing.

   ISSUE

   The issue in the present case is whether Mr Uluiviti can meet the Public Interest Criteria (PIC) 4004 at the time of decision.

   BACKGROUND

6. Mr Uluiviti, is a Fijian citizen, who arrived in Australia in 2009.  His application for a Subclass 457 was unsuccessful. He has been granted numerous Bridging Visas. On 12 December 2014, the sponsor wrote to the Department advising that she withdrew sponsorship for the partner visa application.  Relevant to this review, Mr Uluiviti did not meet PIC 4004 because he had an  outstanding debt to the Commonwealth.  

7. The delegate refused to grant the visa on the basis that the applicant did not satisfy public interest criterion 4004 because he has not paid or made appropriate arrangements to repay his Commonwealth debt. As a result the applicant did not meet cl.820.223 of Schedule 2 to the Migration Regulations 1994.

   Public Interest Criterion 4004

8. Clause 820.223 provides, amongst other things, that the applicant satisfies public interest criterion 4004. Clause 4004 of Schedule 4 to the Regulations provides:

   The applicant does not have outstanding debts to the Commonwealth unless the Minister is satisfied that appropriate arrangements have been made for payment.

   Does the visa applicant meet Public Interest Criteria 4004?

9. On 5 August 2015, Mr Uluiviti was advised by the Department that he had an outstanding debt to the Commonwealth of $1,417.00.  At that time he was requested to provide evidence of payment of the debt, or to provide a payment plan for the outstanding debt.

10. On 24 September 2016, the Department received information from the Commonwealth Debt Management Unit that Mr Uluiviti was not on payment plan and the last payment made by him against the debt was $200 on 21 August 2013.

11. On 12 February 2016, the Tribunal wrote to the applicant and requested that he provide evidence that he paid his debt to the Commonwealth or to provide evidence of a payment plan and for that information to be with the Tribunal by 26 February 2016.  The Tribunal wrote to the applicant again on 11 July 2016, making the same request with the information to be with the Tribunal by 25 July 2016.

12. On 22 July 2016, the applicant responded informing the Tribunal that he had made some payments against the debt and provided a copy of a registered post-lodgement receipt.  He also stated that “I presume that you will communicate in writing for the outcome of my appeal”.  The applicant did not provide any independent evidence that he had either paid his Debt to the Commonwealth or evidence of a payment plan.

    The Tribunal hearing

13. The Tribunal discussed with the applicant his circumstances and the debt he owed to the Commonwealth.  The applicant told the Tribunal that he had made two payments against the debt this year.  In addition, in August 2016 he committed to paying $25 a week against the remainder of the debt.  He said that he had expected to hear when the $25 deduction would take place but he had not heard.  He told the Tribunal that he had $1,000 in his pocket to pay the remainder of the debt in full to the Tribunal.  The Tribunal told the applicant that it was unable to accept the $1,000 payment.  The Tribunal provided the applicant an extension of time to pay the $1,000 to the relevant authority and to provide documentary evidence to the Tribunal that his debt to the Commonwealth had been cleared.   The Tribunal told the applicant that should this evidence not be provided within the timeframe, the Tribunal would proceed to make a decision in this matter.

14. Ms Koruilagi told the Tribunal that the parties have been under financial distress.  However they are now living in Sydney and the applicant is working.  She said that when she previously withdrew her sponsorship, it was after the parties fought.  Since that time the parties have reconciled and married on 4 December 2015.

15. At the time of this decision information before the Tribunal is that on 21 November 2016 the applicant’s debt to the Commonwealth was paid in full on the same day.

16. As a result, it follows that the applicant satisfies public interest criterion 4004. Therefore the applicant meets cl.820.223 of Schedule 2 to the Regulations.

    DECISION

17. The Tribunal remits the application for a Partner (Temporary) (Class UK) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 820 Subclass 820 (Partner (Temporary)) visa:

    ·PIC 4004 for the purposes of cl.820.223 of Schedule 2 to the Regulations.

    Helena Claringbold
    Member