Barnes (Migration)

[2021] AATA 4189

Barnes (Migration) [2021] AATA 4189 (28 October 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Kyle Nicholas Barnes

CASE NUMBER:  1905833

HOME AFFAIRS REFERENCE(S):          BCC2018/3806109

MEMBER:M Edgoose

DATE:28 October 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 820 visa:

·cl.820.221 of Schedule 2 to the Regulations

Statement made on 28 October 2021 at 3:44pm

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Spouse) – sponsorship limit – 5-year limitation period now passed – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 360(2)(a)
Migration Regulations 1994 (Cth), r 1.20J(1)(b), Schedule 2, cl 820.221(4)

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 Home Affairs to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s.65 of the Migration Act 1958 (the Act). The applicant applied for the visa on 18 June 2018. The delegate refused to grant the visa on 22 February 2019.

2. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl 820.221(4) and in particular regulation 1.20J(1)(b).  

3. On 12 March 2019 the visa applicant lodged an application of appeal to this Tribunal. The applicants then representative stated in his submission that by the time the Tribunal looks at the matter the issue of the sponsor’s eligibility to sponsor the visa applicant will no longer be relevant as 5 years will have passed. The Tribunal notes that the 5 years passed on 28 July 2019 less than 6 months after the delegates refusal decision was made on 22 February 2019.

4. In light of the evidence received, the Tribunal is satisfied that reg 1.20J(1)(b) is met and has concluded that this matter should be remitted for reconsideration.

5. In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the applicant on the basis of the material before it, pursuant to s.360(2)(a) of the Act.

   DECISION

6. The Tribunal remits the application for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 820 visa:

   ·cl.820.221 of Schedule 2 to the Regulations

   M. Edgoose
   Member