1611785 (Migration)

[2016] AATA 4329

1611785 (Migration) [2016] AATA 4329 (2 September 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Lontung Maruli Simbolon

CASE NUMBER:  1611785

DIBP REFERENCE(S):  BCC2015/2975889

MEMBER:Kira Raif

DATE:2 September 2016

PLACE OF DECISION:  Sydney

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

Statement made on 02 September 2016 at 8:17am

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 28 July 2016 to refuse to grant the visa applicant a Partner (Migrant) (Class BC) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant is a national of Indonesia, born in Mach 1990. He applied for the visa on 20 May 2014 on the basis of his relationship with his sponsor. The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy cl.100.221 because the delegate found that the applicant was not the holder of the subclass 309 visa. The applicant seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal on 25 August 2016 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   Tribunal’s jurisdiction

4. When making the application for review, the applicant stated on the application form that he was seeking review in relation to the decision to cancel his subclass 100 visa. The applicant provided to the Tribunal a copy of the decision record relating to the refusal of the Class BC (subclass 100) visa. There is no record of a decision to cancel the Class BC visa and no evidence that the subclass 100 visa has been cancelled.

5. In the course of the hearing, the Tribunal explained to the applicant that he would be ineligible for the grant of the Class BC visa because his temporary subclass 309 visa had been cancelled. Following the hearing, the applicant advised the Tribunal that he was seeking review in relation to the cancellation of the subclass 309 visa and not the refusal of the subclass 100 visa. The Tribunal has formed the view that this is not the case.

6. The Tribunal acknowledges that the review application form refers to the cancellation of the subclass 100 visa, which could relate to either the decision to refuse to grant the applicant the subclass 100 visa or the cancellation of his subclass 309 visa, since there is no decision to cancel the applicant’s subclass 100 visa. However, in addition to the application form, the applicant provided to the Tribunal at the time of lodging the application for review a copy of the decision record, which relates to the refusal to grant him the subclass 100 visa. The application for review was lodged three days after the decision was made in relation to the subclass 100 visa and more than ten weeks after the cancellation of the subclass 309 visa. When considered together – the information on the application form, the attachment of the decision record relating to the refusal of the subclass 100 visa and the timing of the application for review – the information indicates that the applicant’s intention was to seek review in relation to the subclass 100 refusal and not the cancellation of the subclass 309 visa.

7. The Tribunal finds that the present application for review relates to the decision to refuse to grant the applicant a subclass 100 visa. The Tribunal finds that it does not have a valid application for review in relation to the cancellation of the subclass 309 visa. The Tribunal makes no finding on whether the applicant may be eligible to make a separate application for review in relation to that decision. There is no application for review in relation to the cancellation before the Tribunal and the Tribunal has no jurisdiction with respect to that matter.

   Relevant law

8. The criteria for the grant of a Subclass 100 visa are set out in Part 100 of Schedule 2 to the Migration Regulations 1994 (the Regulations). Relevantly to this matter, the primary criteria include cl.100.221. Clause 100.221 requires that the applicant meet one of five alternative requirements.

   Does the applicant meet the requirements of cl. 100.221?

9. The applicant provided to the Tribunal a copy of the primary notification letter and the decision record. Relevantly, it indicates that the applicant made the application for the visa in May 2014 and was granted the Provisional Partner visa in subclass 309 in October 2015. That visa was cancelled on 10 May 2016. There is no evidence that the Provisional Partner visa has been reinstated.

10. The Tribunal finds that at the time of this decision, the applicant is not the holder of the Subclass 309 Partner (Provisional) visa. He is therefore unable to meet cl. 100.211(2), (2A), (3) and (4). There is no evidence that the applicant’s subclass 309 visa ceased on notification of the decision to refuse the subclass 100 visa. The primary decision record indicates that the subclass 309 visa ceased due to being cancelled and not on the notification of the decision in relation to the subclass 100 visa. The applicant does not meet cl. 100.221(4A). The Tribunal is not satisfied that the applicant meets cl. 100.221.

11. The applicant and the sponsor provided submissions and oral evidence to the Tribunal concerning their relationship. The sponsor advises the Tribunal that she previously withdrew the sponsorship due to an argument with the applicant but states that their relationship is ongoing. They also refer to their common child. The Tribunal acknowledges that evidence but the Tribunal makes no findings on the nature of the applicant’s relationship with the sponsor. For the reasons stated above, the Tribunal finds that the applicant is unable to meet cl. 100.221 because he is not the holder of a subclass 309 visa at the time of this decision.

    Conclusion

12. For the reasons above, the applicant does not satisfy the criteria for the grant of the visa.

    DECISION

13. The Tribunal affirms the decision not to grant the applicant a Partner (Migrant) (Class BC) visa.

    Kira Raif
    Senior Member