1515925 (Migration)

[2016] AATA 4728

1515925 (Migration) [2016] AATA 4728 (21 November 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr TAN KHOA NGUYEN

CASE NUMBER:  1515925

DIBP REFERENCE(S):  CLF2012/204067

MEMBER:Susan Trotter

DATE:21 November 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 21 November 2016 at 10:24am

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 3 November 2015 to refuse to grant the applicant, Mr Nguyen, a Partner (Residence) (Class BS) visa under s.65 of the Migration Act 1958 (the Act).

2. Mr Nguyen applied for the visa on 5 September 2011 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 5 December 2012 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 Mr Nguyen did not satisfy the requirements for either subclass of visa.

4. Mr Nguyen lodged an application for review of the Subclass 820 visa refusal and on 1 December 2015, this Tribunal (differently constituted) affirmed the decision to refuse to grant the Subclass 820 visa.

5. The department sent a letter dated 3 November 2015 to Mr Nguyen via his representative, advising that he had previously not been correctly notified of the decision in relation to the Subclass 801 visa and that he was being re-notified that his Subclass 801 visa had been refused. Mr Nguyen was advised that as a result of the incorrect notification of the decision to refuse the Subclass 801 visa, the time period within which an application for review may be made had not commenced and would commence when Mr Nguyen was taken to have received the 3 November 2015 letter. The letter expressly stated that Mr Nguyen was not being re-notified of the decision to refuse his Subclass 820 visa.

6. On 20 November 2015, Mr Nguyen lodged an application with this Tribunal for a review of the decision to refuse the Subclass 801 visa.

7. Where the Tribunal has received a valid application for review of a reviewable decision and carried out its statutory duty to review the decision under the Act, the decision is no longer a reviewable decision: see for example SZBWJ v MIAC [2008] FMCA 164 at [41] and the cases cited therein. The Tribunal has no jurisdiction to review a delegate’s decision twice: Jayasinghe v MIAE (1997) 76 FCR 301 and SZASP v MIAC [2007] FCA 771, that is the Tribunal has no jurisdiction to again review the Subclass 820 visa refusal decision. The only decision which can be reviewed by this Tribunal is that related to the Subclass 801 visa refusal decision.

8. The Tribunal is satisfied that Mr Nguyen sought review of the Subclass 801 visa refusal decision within the requisite time period from the re-notification on 3 November 2015, and that it is a valid application for review.

9. Mr Nguyen appeared before the Tribunal on 16 November 2016 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

10. Mr Nguyen was represented in relation to the review by his registered migration agent.

11. During the hearing the Tribunal took some time to discuss with Mr Nguyen the two stage partner visa process whereby a joint application is made for Subclass 820 visa and a Subclass 801 visa. The Tribunal also discussed that the only decision before it for review was in relation to the Subclass 801 visa, with one of the necessary criteria to be satisfied for a Subclass 801 visa to be granted, being that Mr Nguyen have held, or be the holder of, a Subclass 820 visa.

12. The Tribunal at hearing referred to the delegate’s decision, a copy of which Mr Nguyen provided to the Tribunal with his application, and particularly to the delegate recording in the decision record that Mr Nguyen did not hold nor had held a Subclass 820 visa. The Tribunal asked Mr Nguyen if he agreed that that statement was correct. Mr Nguyen agreed that he does not hold, nor has held, a Subclass 820 visa.

13. The Tribunal is therefore satisfied that Mr Nguyen is not the holder of a Subclass 820 visa and is satisfied that he has not held a Subclass 820 visa.

14. As Mr Nguyen is not the holder of a Subclass 820 visa at the time of this decision, the Tribunal finds that he does not satisfy the requirements of cl.801.221(2), (2A), (3), (4), (5) or (6).

15. The Tribunal also finds that Mr Nguyen does not satisfy the requirements of cl.801.221(8) as he has not held a Subclass 820 (Partner) visa that ceased on notification of a decision of the Minister to refuse a Subclass 801 visa.

16. As Mr Nguyen does not satisfy any of cl.801.221(2), (2A), (3), (4), (5), (6) or (8), he does not satisfy cl.801.221(1) and does not satisfy cl.801.221. Accordingly Mr Nguyen does not meet the requirements for the grant of a Subclass 801 visa at the time of decision.

17. For the reasons above, Mr Nguyen does not satisfy the criteria for the grant of the visa.

    DECISION

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

    Susan Trotter
    Member