1516992 (Migration)

[2016] AATA 4606

1516992 (Migration) [2016] AATA 4606 (28 October 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Puneet Singh

CASE NUMBER:  1516992

DIBP REFERENCE(S):  CLF2013/236305

MEMBER:Justine Clarke

DATE:28 October 2016

PLACE OF DECISION:  Melbourne

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

Statement made on 28 October 2016 at 4:35pm

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 19 March 2014 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 26 September 2013 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). The primary criteria must be satisfied by at least one applicant. 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 primary criteria include cl.801.221.

3. The delegate refused to grant the visa on the basis that the applicant did not satisfy subclause (2), (2A), (3), (4), (5), (6) or (8) of cl.801.221 of Schedule 2 to the Regulations at the time of the delegate’s decision.

4. The applicant applied to the Tribunal for the review of that decision on 9 December 2015. The applicant appeared before the Tribunal on 25 October 2016 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages. The review application was heard de novo.

5. The applicant was represented in relation to the review by his registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The applicant lodged a valid visa application for a combined UK Partner (Temporary) Subclass 820 visa and BS Partner (Residence) Subclass 801 visa on 26 September 2013 on the basis of being in a relationship with his sponsoring partner.

8. A delegate of the Minister for Immigration and Border Protection refused to grant the visas on 19 March 2014. That decision was affirmed by the Tribunal on 27 April 2015.

9. The Department subsequently identified a defect in the notification of the visa refusal in respect of the BS Partner (Residence) Subclass 801 visa on 25 November 2015.

10. The applicant applied to the Tribunal on 9 December 2015 for the review of the decision to refuse the Subclass 801 visa. The application form incorrectly stated that it was for review of the Subclass 820 visa but this error was amended prior to the hearing. 

11. At the Tribunal hearing, the Tribunal explained to the applicant that the primary criteria for the grant of a Subclass 801 permanent partner visa includes cl.801.221(1) which requires that the applicant must be the holder of, or have held, a temporary partner visa: cl.801.221(2); cl.801.221(2A); cl.801.221(3); cl.801.221(4); cl.801.221(5); cl.801.221(6) or cl.801.221(8).

12. The applicant told the Tribunal that he had not been aware of the 820 visa and ‘whether I had it or not’. The Tribunal explained that, on the material before the Tribunal, the applicant had appealed to the Tribunal in relation to the refusal of the 820 visa and that the decision of the Department was affirmed by the Tribunal on 27 April 2015. The Tribunal asked the applicant for clarification about whether he had not received notifications or whether he had not understood the legal outcome of the information conveyed to him. The applicant told the Tribunal that he had not been aware in legal terms of the outcome of that decision.   

13. As was discussed with the applicant at the Tribunal hearing, an applicant for BS Partner (Residence) Subclass 801 visa must, at the time of decision, satisfy subclause (2), (2A), (3), (4), (5), (6) or (8) of cl.801.221 of Schedule 2 to the Regulations.

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

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

16. For the reasons above, the applicant does not satisfy the criteria for the grant of the visa. As the applicant does not satisfy any of subclauses (2), (2A), (3), (4), (5), (6) or (8) he does not satisfy cl.801.221 and therefore does not meet the legal criteria for the grant of the visa at the time of decision.

    DECISION

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

    Justine Clarke
    Member