2301478 (MIGRATION)

This matter concerned an application for review of a decision to refuse a Subclass 100 Partner visa. The applicant and her sponsor jointly applied for Subclass 309 and 100 Partner visas. The applicant arrived in Australia on a visitor visa and subsequently obtained a Subclass 408 Temporary Activity visa. The sponsor withdrew his sponsorship of the Partner visa applications, and the applicant advised that the relationship had ceased. A Family Violence Final Intervention Order was made against the sponsor, which remained in effect until June 2023. The Administrative Appeals Tribunal (AAT) considered the applicant's standing to seek review of the Subclass 100 visa refusal and the substantive merits of her application.

The primary legal issues before the Tribunal were whether the applicant had standing to seek review of the refusal of her Subclass 100 Partner visa application, and if so, whether she met the criteria for the grant of that visa. Specifically, the Tribunal had to determine if the applicant satisfied the requirements of clause 100.221 of Schedule 2 to the Migration Regulations 1994, which generally requires the applicant to hold a Subclass 309 visa. The Tribunal also considered the impact of the sponsor's withdrawal of sponsorship and the existence of the family violence order on the application.

The Tribunal reasoned that while the applicant did not contest her inability to seek review of the Subclass 309 visa refusal, she did have standing to seek review of the Subclass 100 visa refusal, as she was the subject of that decision and the visa could be granted while she was in or outside Australia. However, the Tribunal found that the applicant did not meet the requirements of clause 100.221(1) because each of the relevant subclauses (2, 3, 4, and 4A) required that the applicant had held, or held, a Subclass 309 visa. As the applicant had never held a Subclass 309 visa, she failed to satisfy this essential criterion. The Tribunal noted that the family violence provisions did not apply in this instance due to the withdrawal of sponsorship.

Consequently, the Tribunal affirmed the decision under review, finding that the applicant did not meet the requirements for the grant of a Subclass 100 Partner visa. The Tribunal also noted that ministerial intervention had been requested.