Faba-an (Migration)

[2020] AATA 4250

Faba-an (Migration) [2020] AATA 4250 (3 August 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Jasieth David Faba-an
Master Jonathan Zoe Ganayan

CASE NUMBER:  1823361

HOME AFFAIRS REFERENCE(S):          BCC2016/1056957

MEMBER:Kira Raif

DATE:3 August 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the applications for Partner (Temporary) (Class UK) visas, with the direction that the first named applicant meets the following criteria for a Subclass 820 (Partner) visa:

·PIC 4009 for the purpose of cl.820.224 of Schedule 2 to the Regulations

Statement made on 03 August 2020 at 9:04am

CATCHWORDS

MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – spouse of an Australian permanent resident – intending to live permanently in Australia – sponsor’s visa cancelled but restored – genuine spousal relationship not assessed by Tribunal – decision under review remitted  

LEGISLATION

Migration Act 1958, ss 5, 65
Migration Regulations 1994, Schedule 2, cls 820.211, 820.221, 820.224; Schedule 4 Public Interest Criterion 4009

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 applicants Partner (Temporary) (Class UK) visas under s.65 of the Migration Act 1958 (the Act).

2. The first named applicant (the applicant) applied for the visa on 11 March 2016 on the basis of her relationship with the sponsor. The delegate refused to grant the visa on the basis that the applicant did not satisfy cl.820.221 because the delegate was not satisfied the applicant was the spouse of an Australian permanent resident. The applicant seeks review of the delegate’s decision.

3. The applicants were represented in relation to the review by their registered migration agent. The Tribunal held a Directions hearing on 8 July 2020 but no hearing was held in this case as the Tribunal was able to make a favourable decision on the material before it. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   Relevant law

4. At the time the application was made, Class UK contained only one subclass: Subclass 820 (Partner). The criteria for the grant of this visa are set out in Part 820 of Schedule 2 to the Migration Regulations 1994 (the Regulations).

5. Clauses 820.211(2)(a) and 820.221 require that at the time the visa application was made, and at the time of this decision, the applicant is the spouse or de facto partner of an Australian citizen or Australian permanent resident or an eligible New Zealand citizen. ‘Spouse’ is defined in s.5F of the Act.

6. Clause 820.224 requires the applicants to meet a number of Public Interest Criteria (PIC). Relevantly, PIC 4009 requires that the applicant intends to live permanently in Australia.

   Are the requirements for a spouse relationship met?

7. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that the applicants were sponsored in this application by Mr Ganayan who was, at the time of the application, a holder of a permanent visa. However, in May 2018 Mr Ganayan’s visa was cancelled. As he was no longer a permanent resident of Australia, the delegate was not satisfied that the applicant was the spouse of an Australian citizen, permanent resident or an eligible New Zealand citizen and that cl. 820.221 was met.

8. The applicant provided to the Tribunal evidence that in June 2020 the Tribunal, differently constituted, set aside the cancellation of the sponsor’s visa. The Tribunal finds that at the time of this decision, the sponsor is a permanent resident of Australia. However, the Tribunal is mindful that the delegate has not assessed the applicant’s relationship with the sponsor. The applicant presented to the Tribunal evidence of her relationship with the sponsor and claims that they are in a genuine spousal relationship but, as the relevant assessment has not been done by the delegate, the Tribunal is of the view that it is more appropriate that the nature of the applicant’s relationship with the sponsor be first assessed at that  level. As such, the Tribunal does not make a finding as to whether the applicant is the spouse of the sponsor and for that reason, the Tribunal has not made any assessment against cl. 820.221.

9. The applicant claims to be the spouse of an Australian resident. She provided to the Tribunal a declaration outlining her future plans. The Tribunal is satisfied the applicant intends to live permanently in Australia. The Tribunal is satisfied the applicant meets PIC 4009 for the purpose of c. 820.224.

   Conclusion

10. 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 820 visa.

    DECISION

11. The Tribunal remits the applications for Partner (Temporary) (Class UK) visas, with the direction that the first named applicant meets the following criteria for a Subclass 820 (Partner) visa:

    ·PIC 4009 for the purpose of cl.820.224 of Schedule 2 to the Regulations

    Kira Raif
    Senior Member