1516121 (Migration)

[2016] AATA 3488

1516121 (Migration) [2016] AATA 3488 (1 March 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Ranie Nileshni Shankar
Mr Vinal Ravi Shankar
Mr Nishaal Avi Shankar
Ms Ranie Nikisha Shankar
Ms Ranie Nikita Shankar

CASE NUMBER:  1516121

DIBP REFERENCE(S):  CLF2012/202210

MEMBER:Kate Timbs

DATE:1 March 2016

PLACE OF DECISION:  Sydney

DECISIONThe Tribunal remits the application for a Partner (Temporary) (Class UK) visa for reconsideration, with the direction that the applicant meets the criterion in cl.820.226 of Schedule 2 to the Regulations.

STATEMENT MADE ON 01 MARCH 2016 AT 11:45AM
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 to refuse to grant Partner (Temporary)(Class UK)(Subclass 820) visas under s.65 of the Migration Act 1958 (the Act) to Ms Shankar and her children.

2. On 4 October 2012, Ms Shankar applied for the visas. On 5 November 2015, the delegate refused to grant the visas.

3. On 24 November 2015, Ms Shankar applied for review of that decision. The Tribunal considered evidence in the visa application file provided by the Department of Immigration and made its decision without hearing from Ms Shankar.

   CONSIDERATION

4. To be granted the visa, Ms Shankar must meet the primary criteria in Part 820.22 of Schedule 2 to the Migration Regulations 1994 (the Regulations) when a decision is made on his visa application. Her children must meet the secondary criteria, including the criterion in cl.802.321 that Ms Shankar meets the primary criteria to be granted the visa.

5. The delegate found Ms Shankar did not meet the criterion in cl.820.226 because she did not meet public interest criterion 4020 (PIC 4020). The decision relied on a finding that there was evidence that she had provided false information to the Department.

6. When Ms Shankar applied for the visa in October 2012, cl.820.226 required her to hold a valid passport. In November 2012, the Minister substituted that requirement with the words: “The applicant satisfies public interest criterion 4021”[1] (the first amendment). The transitional provisions in the amending regulation state that the new requirement applied to visa applications made on or after that date (section 601(2)). Therefore, it did not apply to Ms Shankar’s visa application.

   [1] Section 2(b) and item 207 of Schedule 2 to the Migration Legislation Amendment Regulation 2012 (No. 5) (2012 No.256).

7. In June 2013, the Minister amended cl.820.226 by omitting “criterion 4021” and substituting “criteria 4020 and 4021”[2] (the second amendment). The transitional provisions[3] of the amending regulation state the requirement applies, not only to visa applications made on or after 1 July 2013, but also to visa applications made before that date that were not yet determined (section 1907).

   [2] Item 42 of Schedule 7 to the Migration Legislation Amendment Regulation 2013 (No.3) (SLI 2013, No.146).

   [3] Provisions that set out the matters to which new regulations or legislation will apply.

8. Ms Shankar made the visa application before 1 July 2013 and the Department had not determined it. However, it does not follow that she must satisfy PIC 4020. If the requirement inserted by the first amendment does not apply to a particular case, the change to that requirement made by the second amendment (to insert the PIC 4020 requirement) does not apply. This means the transitional provisions for the second amendment do not backdate the PIC 4020 requirement to visa applications made before 24 November 2012.

9. In that case, Ms Shankar meets the criterion in cl.820.226 if she satisfies the requirement that applied before the first amendment, that is, that she holds a valid passport. The visa application file has a copy of pages from Ms Shankar’s passport issued by the Republic of Fiji in 2010. It expires in 2020. The Tribunal has no reason to doubt the authenticity of that document and finds she has a valid passport. It follows that she meets the criterion in cl.820.226 when the Tribunal made its decision. It will send the matter back to the Department for it to determine whether she meets the other primary criteria for the visa and whether her children meet the secondary criteria.

   DECISION

   The Tribunal remits the application for a Partner (Temporary) (Class UK) visa for reconsideration, with the direction that the applicant meets the criterion in cl.820.226 of Schedule 2 to the Regulations.

   Kate Timbs
   Member