Al Anezi (Migration)

[2022] AATA 688

Al Anezi (Migration) [2022] AATA 688 (17 March 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Manal Shayea Al Anezi

VISA APPLICANT:  Mr Badran Naser Rashid

CASE NUMBER:  2003340

DIBP REFERENCE(S):  BCC2016/2426438

MEMBER:Peter Vlahos

DATE:17 March 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Partner (Provisional) (Class UF) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 309 (Partner (Provisional)) visa:

·Public Interest Criterion 4021 for the purposes of cl.309.225 of Schedule 2 to the Regulations.

This Statement was made on 17 March 2022 at 11.17AM.

CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – identity and citizenship – copy of passport provided to tribunal – decision made without hearing necessary – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 309.225, Schedule 4, criterion 4021

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 23 December 2019 to refuse to grant the visa applicant a Partner (Provisional) (Class UF) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 21 July 2016. The delegate refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl.309.225 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the visa applicant did not satisfy 309.225 in which Public Interest Criteria 4021 was relevant.

3. In this decision, the review applicant, Mrs. Manal Shayea Al Anezi, is referred to as the sponsor; while the visa applicant, Mr Badran Naser Rashid, is referred to as the applicant.

4. A number of documents were provided to the Tribunal subsequent to the sponsor validly applying for the refusal decision to be reviewed on 21 February 2020.

5. The Tribunal determined based on the available information that a scheduled hearing to present oral and other evidence and arguments was not required in this matter.

6. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in this review is whether the visa applicant meets Public Interest Criterion 4021 (PIC 4021) as required by cl.309.225 for the grant of the visa. Broadly speaking, PIC 4021 requires the applicant hold a valid passport that was issued to the applicant by an official source, is in the form issued by the official source and is not in a class of passport specified by the Minister.

8. At the time of application for this offshore partner visa under review, the applicant did not provide the Department with a valid and current passport substantiating his identity and citizenship.

9. As the applicants did not provide a copy of the applicant’s current passport, the Department proceeded to refuse the application of the Subclass 309 (Provisional) visa on the basis that the applicant did not meet the criteria in cl.309.225 which requires the applicant to satisfy 4021 at the time of decision.

10. On 21 February 2020, the sponsor sought to have the refusal decision reviewed by the Tribunal.

11. On 20 August 2021, the sponsor delivered to the Tribunal (electronically) a copy of the applicant’s passport from the Republic of Iraq. It states the applicant’s name, date of birth and place of birth.[1] The copy indicated the passport had been issued on 25 October 2020 and remains valid until 24 October 2028. This passport was issued to him by the appropriate Iraq government authorities in Fadheelah, Jebur. The passport is not one specified by the Minister.

    [1] AAT File, Passport No. A18137578 (Republic of Iraq), issued at Fadheelah Jebur and is current for the period: 25/10/2020 to 24/10/2028. See review applicant’s email dated 20/8/2021and 3/02/2022.

12. Based on this information before the Tribunal, it finds the applicant meets the requirements of PIC 4021 for the purpose of satisfying the criteria in cl.309.225 at the time of making this decision.

13. Therefore PIC 4021 is met.

14. On the basis of the above, the applicant does satisfy PIC 4020 for the purposes of cl.309.225.

15. Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 309 (Spouse (Provisional)) visa at the appropriate time.

16. It is strongly recommended to the applicants to consider engaging the advice and the assistance of a registered migration agent or lawyer to assist them with this matter as it progresses.

    DECISION

17. The Tribunal remits the application for a Partner (Provisional) (Class UF) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 309 (Spouse (Provisional)) visa:

    ·Public Interest Criterion 4021 for the purposes of cl.309.225 of Schedule 2 to the Regulations.

    Peter Vlahos
    Member