1517877 (Migration)

[2016] AATA 3489

1517877 (Migration) [2016] AATA 3489 (26 February 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Sopheap Khun

CASE NUMBER:  1517877

DIBP REFERENCE(S):  CLF2010/145921; CLF2015/7259; CLF2016/148

MEMBER:Di Hubble

DATE:26 February 2016

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Partner (Temporary) (Class UK) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 801 (Partner) visa:

·cl.801.226 of Schedule 2 to the Regulations.

Statement made on 26 February 2016 at 11:17am

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 10 December 2015 to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 28 October 2010 on the basis of his relationship with his sponsor.

3. The delegate refused to grant the visa on the basis that the applicant did not meet the requirements of cl.801.226 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because he did not satisfy Public Interest Criterion (PIC) 4020. The delegate found that the applicant did not satisfy PIC 4020 because he gave false or misleading information to the Department regarding his relationship with the sponsor.

4. The applicant, who was represented by a registered migration agent, sought review of the delegate’s decision on 23 December 2015.

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. For the following reasons, the Tribunal considers that there is no requirement for the applicant to meet PIC 4020.

6. The PIC 4020 requirement was inserted as a criterion of the Regulations for the Subclass 801 visa by the Migration Legislation Amendment Regulation 2013 (No.3) (SLI 2013, No.146). Item 42 of Schedule 7 of the amending regulation purported to amend cl.801.226 by omitting ‘criterion 4021’ and substituting ‘criteria 4020 and 4021’. However, at the time of application in October 2010, cl.801.226 was a primary criterion requiring the applicant to be a holder of a valid passport. There is no reference in that clause to criterion 4020 or criterion 4021.

7. The transitional provisions that introduced PIC 4020 did not validly incorporate that requirement to applications made in 2010.  Therefore, at the time of application PIC 4020 was not a criterion that the applicant had to satisfy.  Accordingly, the Tribunal finds that the delegate applied the wrong law in requiring the applicant to satisfy PIC 4020 and refusing to grant the applicant a Subclass 801 visa on the basis of not meeting that requirement.

8. In light of this, the legally correct approach is for the Tribunal to make its decision on the basis of whether the applicant meets cl.801.226 as it was at the time of application, that is:

   801.226The Minister is satisfied that:

   (a)the applicant is the holder of a valid passport that:

   (i)was issued to the applicant by an official source; and

   (ii)is in the form issued by the official source; or

   (b)it would be unreasonable to require the applicant to be the holder of a passport.

9. On the Department’s file there is a copy of the bio data page of a passport issued by the Kingdom of Cambodia to the applicant. There is nothing before the Tribunal to indicate that it was not issued to the applicant by an official source or it is not in the form issued by the official source. On that basis, the Tribunal finds that the applicant satisfies cl.801.226 as it applied at the time of application.

10. Given these findings, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 801 visa.

    DECISION

11. The Tribunal remits the application for a Partner (Temporary) (Class UK) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 801 (Partner) visa:

    ·cl.801.226 of Schedule 2 to the Regulations.

    Di Hubble

    
    

    Member