KANLAYANEE (Migration)

[2020] AATA 2690

KANLAYANEE (Migration) [2020] AATA 2690 (30 May 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr CHERDCHAI KANLAYANEE

CASE NUMBER:  1727534

DIBP REFERENCE(S):  CLF2011/169986

MEMBER:Christine Cody

DATE:30 May 2020

PLACE OF DECISION:  Sydney

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

Statement made on 30 May 2020 at 5:22pm

CATCHWORDS
MIGRATION – Partner (Residence) (Class BS) visa – Permanent Class BS 801 – not a substantive visa holder – refusal of temporary spouse visa – therefore automatic refusal of permanent spouse visa –  tribunal affirmed first temporary partner visa – unlawful status in Australia – not notified by department of permanent visa refusal – applicant renotified 5 years later – confusion as whether both visas refused in original notification – decision under review affirmed

LEGISLATION
Judiciary Act 1903 (Cth), s 39B
Migration Act 1958, ss 65, 66(4), 500, 501, 501A, 501B and 501C
Migration Regulations 1994, cls 820.211, 801.221

CASES
Basra v MIBP [2018] FCA 422

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW – BACKGROUND

1. The applicant, Cherdchai Kanlayanee, is 41 years of age and is a citizen of Thailand. He first came to Australia holding a Student visa (Subclass 670) which expired on 10 May 2009. He remained unlawfully present in Australia after his visa ceased.[1]

   [1] Refer to post-hearing submissions from agent.

2. The applicant claims that he met the sponsor, Viengsavanh Khannara, on 17 December 2009, that they commenced a spouse relationship on 17 December 2010 and married on 11 September 2011. They do not have any children.

3. The applicant, who did not have a visa to be in Australia, did not leave Australia and apply for a spouse visa offshore.

   Application and refusal for two partner visas, temporary and permanent

4. On 20 September 2011, the applicant applied onshore for a combined Partner (Temporary) (Class UK 820) and Partner (Residence) (Class BS) visa under s.65 of the Migration Act 1958 (the Act) on the basis of his relationship with his sponsor. The relevant criteria for these visas are contained respectively in Subclass 820 and Subclass 801[2] (Schedule 2 to the Migration Regulations 1994 (the Regulations)).

   [2] Refer to Annexure A.

5. The delegate refused to grant the visas on 12 December 2012. Considering firstly the Temporary visa Class UK 820 visa application, the delegate found the visa applicant did not satisfy cl.820.211 because the applicant was not a substantive visa holder, he had not made an application within 28 days of his last substantive visa and there were no compelling reasons not to apply the Schedule 3 criteria. Concerning the Permanent Class BS 801 application, the delegate found that as the temporary visa had been refused, he could not consequently meet any of the relevant criteria of Subclass 801.221 for a permanent visa.

   Notification of decisions and right to seek an application for review at the Tribunal

6. Once a decision to refuse onshore applications for visa Subclasses 820 and 801 has been made (and notified) to an applicant, the decisions are reviewable under s.338(2) of the Act. The visa applicant has the review right in these cases.[3]

   [3] s.347(2)(a).

7. Due to the two-stage nature of the partner visa scheme, a delegate may refuse both a Subclass 820 (Temporary) and Subclass 801 (Permanent) visa at the same time (or at different times). If they are refused and notified at the same time, while both decisions are reviewable under Part 5 of the Act, there is no capacity to apply for review of both decisions in a single review application form even where the decisions are in one singular decision letter. Two separate applications are required as the statutory scheme establishes two different visas with separate criteria and the delegate’s decision is to be treated as two decisions, one for each visa[4].

   [4] Basra v MIBP [2018] FCA 422

8. On 12 December 2012 the delegate sent a notification letter to the applicant attaching the decision record dated 12 December 2012. It was clear that the notification letter referred to the decision to refuse the Temporary visa (in the current proceedings, but not the previous proceedings, there is an issue as to whether the notification letter also notified the decision to refuse the permanent visa).

9. On 9 January 2013 the applicant lodged an application for review seeking a review of the decision to refuse to grant the Temporary visa Class UK 820 visa application.[5]

   [5] Refer to the application for review form on the first Tribunal’s file 1300413.

10. The Tribunal (differently constituted and hereafter referred to as “the first Tribunal”) considered and heard this application for review of the decision to refuse the Temporary visa (Class UK 820). The first Tribunal affirmed the delegate’s decision to refuse the Temporary visa (1300413) on 11 March 2014.

11. The applicant did not lodge an application to the Federal Circuit Court to review the first Tribunal’s decision. He remained unlawfully present in Australia; he claims that he was not aware of the decision of the first Tribunal and he only became aware of this some 3.5 years later when he was arrested on 16 September 2017 for throwing a cigarette butt out of his car while waiting at a traffic light. He was conveyed to Villawood Detention Centre.[6]

    [6] Agent’s oral submissions at the Tribunal hearing, repeated in the post hearing submissions from agent dated 27 April 2020.

12. While he was detained, it appears that the Department examined his migration history, and that a delegate came to the view that the notification letter sent to the applicant on 12 December 2012 related only to the refusal of the Temporary visa (UK 820), and that he had yet to be sent a notification of the refusal of the Permanent visa (BS 801) application. Thus, the same decision record of 12 December 2012 was sent to the applicant on 20 October 2017, notifying that the Permanent visa (BS 801) had also been refused, for the reasons set out in the same delegate’s decision record dated 12 December 2012. The applicant was also released from Villawood Detention Centre, and then lodged an application for review with the Tribunal seeking a review of the decision to refuse the application for a Permanent visa (BS 801). This is the current application for review which was lodged on 8 November 2017. The applicant was represented in relation to the review by his registered migration agent.

13. The application for review stated that it was seeking a review of the delegate’s decision to refuse to grant the “UK 801” visa dated 20 October 2017 which was notified on 20 October 2017. It attached a copy of a new notification letter dated 20 October 2017 as well as the delegate’s decision record dated 12 December 2012, and for this reason the Tribunal finds that the applicant was seeking a review of the delegate’s decision on 12 December 2012 to refuse to grant a permanent spouse visa to the applicant. This was not disputed.

14. The Tribunal wrote to the applicant on 12 March 2020 inviting the applicant to attend a hearing on 1 April 2020. It noted that there was a jurisdiction issue, as well as another issue, which could mean that the application may not be successful. The Tribunal provided details of its concerns and asked the applicant to provide submissions before the hearing:

    I am writing in relation to the application for review made by you in respect of
    a decision to refuse to grant a Partner (Residence) (Class BS) visa lodged on
    8 November 2017.
    The Tribunal notes that the review applicant lodged the application for review following a purported re-notification by the Department of this decision on 20 October 2017.
    That re-notification letter stated that the Department had assessed his case and
    considered that when the original notification of the refusal of the visa occurred on 12
    December 2012, the review applicant had not been properly notified of the decision
    in respect of the Partner (Residence) (Class BS) (Subclass 801) visa application (but had been properly notified of the subclass 820 visa).
    The Tribunal attaches for your information copies of the delegate’s notification and
    decision record dated 12 December 2012. The Tribunal has not made up its mind,
    however on one view it would appear that the purported re-notification letter of 20
    October 2017 was incorrect, because the wording of the notification and decision
    record dated 12 December 2012 does appear to refer to a refusal of both subclasses
    (801 and 820).
    If this is the case, then it would appear that the original notification of 12 December
    2012 stands, and that the application for review lodged with the Tribunal on

    8 November 2017 is not valid as it is lodged out of time (with time starting from the
    notification of 12 December 2012). This is because, once a decision has been
    correctly notified in accordance with the Migration Act, that exhausts the Minister’s
    obligations under the legislation, and the time limit will commence to run. If the
    applicant is given the primary decision again or purportedly ‘renotified’ in these
    circumstances, the time to make a valid review application will not start again. Any
    further ‘notifications’ would not be notifications under the statute and would have no
    legal obligations or consequences.
    If you wish to make any comments on whether a valid application has been made, you are invited to do so, in writing, by 26 March 2020. Your application, with any
    comments you make, will be referred to the Member to make a decision on whether
    you have made a valid application.

    The Tribunal looks forward to receiving your submissions in this regard.

    Even if the Tribunal were to find jurisdiction (about which it has not yet made any
    decision), it notes that there appears to be a further difficulty with the review
    application seeking a review of the decision of the delegate made on 12 December

    2012 to refuse to grant a [subclass] 801 visa. The issue before the Tribunal will be the same issue as was before the delegate, namely that a subclass 801 visa cannot be granted if the review applicant did not hold and has not held a subclass 820 visa. The Tribunal has scheduled a hearing to discuss the relevant issues.

15. The applicant was also requested to return a Response to Hearing Invitation letter to the Tribunal; this was not received, and nor were any submissions received. A Tribunal officer telephoned the agent on 30 March 2020. It was stated that:

    The rep indicated that he has received the hearing invitation and notice of telephone hearing. The rep indicated that he will be meeting the applicant tonight and will put in submissions.
    
    The rep indicated that he was not anticipating to be running a full hearing given the circumstances (i.e. coronavirus). The rep indicated that he believes they are ill-prepared due to this and will not be able to run a hearing. The rep indicated that he would be submitting a request for adjournment tomorrow, after he has met with the applicant.

16. On 30 March 2020 the Tribunal received a request for postponement with the agent stating he had spoken to his client over the phone, and due to the coronavirus pandemic and shutdown orders he had serious difficulty in obtaining proper instructions from clients and thus sought an adjournment. On 31 March 2020 the Tribunal agreed to the request and postponed the hearing. It sent a new invitation to attend a telephone hearing on 16 April 2020, noting that to help slow the spread of COVID-19 (coronavirus), the AAT had not been holding face-to-face (in person) hearings and was closed to all visitors until further notice, which is the reason why it had arranged for him to appear by telephone. The Tribunal asked that any objections to a telephone hearing be provided; none were provided.

17. On 2 April 2020 the Tribunal wrote to the applicant as follows:

    Further to our letter of 31 March 2020, the Tribunal has also postponed the due date
    for submissions until Thursday 9 April 2020. Please provide to the Tribunal any
    submissions you wish to make by this date regarding, firstly, the validity of the renotification and, secondly, whether a subclass 801 visa can be granted if the applicant does or did not hold a subclass 820 visa.

18. The Tribunal did not receive any reply or request for extension of time. It did however receive a Response to Hearing Invitation indicating that the applicant, his agent and the applicant’s sponsor (spouse) would be attending the telephone hearing.

19. A Tribunal officer called the agent on 9 April 2020 noting that submissions were due that day. The agent indicated that he would speak to the applicant and try to make submissions that day. No further contact in writing or submissions were received from the agent until less than two hours prior to the hearing, when he sent an email requesting that the Tribunal provide specified and other documents to the agent, the scope of which was unclear. The Tribunal emailed a copy of some documents to the agent and noted it would discuss the balance of his request at the hearing.

    The hearing

20. The applicant appeared before the Tribunal on 16 April 2020 to give evidence and present arguments. The Tribunal also received oral evidence from the spouse. The Tribunal hearing was conducted with the assistance of an interpreter in the Thai and English languages. The agent was present and most of the hearing involved the Tribunal explaining the legal issues and the agent providing submissions.

21. The Tribunal spoke to the applicant and noted that there were legal issues before it, and this is what had been referred to in the Tribunal’s explanation and introduction at hearing, and as discussed with his agent at hearing. It asked the applicant if there was anything he wanted to say to the Tribunal in relation to the application before it (concerning the 801 visa) and he said that he understands the legal issues but he does not have anything to say because he doesn’t understand legal matters. The Tribunal asked his spouse if she wanted to say anything and she said no.

22. During the hearing, the agent started to provide submissions on evidence that the Tribunal had not heard or received in writing, which the Tribunal indicated was not really appropriate; the agent continued with his submissions, and later the agent put some of this evidence in the post hearing submissions (for example, relating to the applicant’s arrest).

23. At hearing, after the agent provided some submissions, as discussed below, the Tribunal asked the agent whether he had any other submission on the current application before the Tribunal, namely the review of the decision to refuse the sub-class 801 visa application. In response, he said that he thinks he would like time to make written submissions. The Tribunal noted that he had been twice reminded before the hearing of the issues before the Tribunal and that submissions had been sought from him, but agreed to allow further time for written submissions after the hearing.

24. The Tribunal clarified with the agent at hearing regarding the documents he was seeking in his email to the Tribunal sent just before the hearing. He said that he was only seeking a copy of the first Tribunal file. He was forwarded a copy of this after the hearing.

25. After the hearing the agent sought an extension of time to provide submissions, which was granted by the Tribunal. His submissions were received on 27 April 2020.

26. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    CONSIDERATION OF CLAIMS, EVIDENCE AND SUBMISSIONS

    Did the decision record of 12 December 2012 refuse both the temporary and the permanent visas?

27. At the hearing, the Tribunal read from the decision record, which stated:

    As you do not meet clause 820.211, I find that you do not meet the criteria for a Partner (Temporary) (Class UK) subclass 820 (Spouse). Therefore, I refuse your application for a Partner (Temporary) (Class UK) Visa.

    As your Partner (Temporary) (class UK) subclass 820 (Spouse) has been refused, you consequently cannot meet any of the relevant criteria at subclause 801.221 for a Partner (Residence) (Class BS) subclass 801 (Spouse). As per regulation 801.221 (7), there is nothing which prevents me from refusing to grant a Subclass 801 visa less than two years after the application is made if the criteria are not met. Therefore, I refuse your application for a Partner (Residence) (class BS) visa.

28. The Tribunal put to the agent that it appears very clear that both temporary and permanent visa applications were refused by the delegate on 12 December 2012. Initially the agent disputed this and then he conceded that it did appear to refuse both. The agent did not, in his post hearing submissions, suggest otherwise. The agent did state in those submissions that the last sentence of the decision record (quoted above) did not refer to the subclass of the permanent visa being refused (but without stating the effect of this); he then however went on to assert that both applications were refused. The Tribunal notes that it is clear in the extract above that the applicant had been found to be unable to meet the relevant criteria for the permanent visa because he has not met the criteria for a temporary visa.

29. The Tribunal finds that the decision record of 12 December 2012 refused both the Temporary (Subclass 820) visa application and the Permanent (Subclass 801) visa application.

    The notification letter dated 12 December 2012

30. As set out in the letter sent to the agent prior to the hearing, the Tribunal considered that one interpretation of the notification letter dated 12 December 2012 was that it was a notification of the refusal of both the Temporary (Subclass 820) visa and the Permanent (Subclass 801) visa applications. The consequence of finding that this letter notifying the refusal of both visas, as set out in the Tribunal’s letter, would be that the application for review lodged 20 October 2017 was lodged outside of the prescribed period of time which, as set out in the notification letter dated 12 December 2012, was seven working days plus 21 calendar days [11 January 2013].

31. The agent said at hearing that he takes issue with this interpretation, and that he considers that the notification letter of 12 December 2012 was only notifying the refusal of the Temporary (Subclass 820) visa application.

32. The Tribunal noted at hearing that certain sentences in the notification letter indicated that it was notifying the refusal of both visa applications:

    This letter refers to your application for a combined Partner (Temporary) Visa (Class UK 820) and (permanent) (class BS 801) which was lodged at a DIAC office on 20 September 2011.

    Your application was refused because you did not satisfy 820.211 and 801.221 of the Migration Regulations 1994. The attached Decision Record provides more detailed information about this decision and the applicants it applies to.

33. While the Tribunal considers that these sentences make it clear that the notification letter was notifying the refusal of both temporary and permanent visa applications, at the same time the Tribunal noted that there were sentences in the letter which suggested that this letter was perhaps a notification of the refusal of the temporary visa application only. This includes:

    ·     The heading of the letter is “Notification of refusal of a Partner (Temporary) (Subclass 820) Visa”;

    ·     Throughout the letter, there is a reference to the visa and the visa application in the singular.

34. Further, the letter was sent from the Partner (Temporary) Processing Centre WA, which may indicate that the notification related only to the temporary visa application, however when providing advice in the letter as to the applicant’s immigration status and leaving Australia, it appears clear that there is no outstanding visa application to process (such as the permanent application), and that he will have to depart Australia when his bridging visa ceases on 18 January 2013 if he does not lodge a valid application for review.

1. As put by the Tribunal at hearing, it is arguable that the notification letter dated 12 December 2012, attaching the decision record of 12 December 2012 (which refused both visa applications), was notifying of the refusal of both visa applications. While the Department appears to have taken a different view, leading to the second notification of 20 October 2017, this view does not bind the Tribunal.

2. However, the Tribunal is mindful that the notification letter of 12 December 2012 is an important letter, refusing a temporary, and possibly a permanent visa application. As noted above, if it was a notification letter refusing both visa applications, the applicant would have had to have lodged two applications for review with the Tribunal. He was at the time represented by an agent, and the Tribunal notes that the submissions made by the agent to the first Tribunal dated 9 January 2013 (TF 31) acknowledge that both applications (for visa Subclass 820 and 801) were refused on 12 December 2012 and that the decision had been explained to and understood by both the visa applicant and his wife and that they have instructed the agent to lodge an application for review; and subsequently an application for review of the decision to refuse the Subclass 820 visa only was lodged, indicating that at the time the notification letter was interpreted by the applicant as refusing the temporary visa only. While this interpretation is also not binding upon the Tribunal, the Tribunal is hesitant to make a positive finding that the notification letter of 12 December 2012 did notify the refusal of the permanent visa as well as the temporary visa, because of the inconsistent language in the letter. In the circumstances, the Tribunal is prepared to accept that the notification letter of 12 December 2012 only notified the decision to refuse the Temporary (Subclass 820) visa application.

3. In the circumstances, the Tribunal accepts that the application for review of the decision to refuse a permanent spouse visa did not need to be lodged within a prescribed period commencing from 12 December 2012.

   The effect of the notification letter dated 20 October 2017

4. The notification letter dated 20 October 2017 is headed “Notification of refusal of application for a Partner (Residence) (Class BS) (Subclass 801) visa”. It states that the Department had previously notified the applicant that his temporary visa application had been refused. It considered that he was not correctly notified of the decision in respect of the permanent visa and so the Department is now “re-notifying” that the application for the Partner (Residence) (Class BS) (Subclass 801) visa has been refused. The reason for refusal set out in the decision record dated 12 December 2012 was repeated in this notification letter, namely that cl.801.221 requires that the applicant meets requirements of subclause 801.221 (2), (2A), (3), (4), (5), (6) or (8), namely that the applicant holds or held a Subclass 820 visa. The applicant could not satisfy any of the subclauses in cl.801.221 because his application for the grant of a Subclass 820 visa was refused, so he does not hold and has not held a Subclass 820 visa. It was noted that the attached decision record also refers to the decision to refuse the temporary partner visa, but that he was not being re-notified of that decision. He was informed that he could lodge an application for review to the Tribunal in relation to the decision to refuse a Permanent Partner visa (Subclass 801).

5. The applicant did so lodge the application for review, which is the subject of the current proceedings.

   Submissions at hearing

6. At the hearing, the agent’s submissions were that the notification letters should both be found invalid and everything “sent back” to the Department, as referred to below.

7. The agent submitted that there was a serious issue with the date of cohabitation referred to in the first Tribunal’s decision record. The Tribunal noted that the proper avenue to allege jurisdictional error in this regard is an application for review to the Federal Circuit Court. The agent acknowledged that no application for review had been lodged with the court in relation to the temporary visa application having been refused and then affirmed. The agent did not at any time suggest that there was any intention to lodge an application for review out of time to the Federal Circuit Court.

8. At the hearing, the agent submitted that the 2012 and 2017 notification letters should both be found as ineffective and they should “revert back” to the Immigration Department to be issued again as proper notifications of both the temporary and permanent visa refusals. The Tribunal noted that it only had before it an application for review of the Permanent visa (sub-class 801) refusal; it did not have before it an application to review the refusal of the Temporary visa (sub-class 820), noting that the Tribunal (when constituted as the first Tribunal) had already dealt with and made a decision on that application for review.

9. The Tribunal asked what exactly should be “sent back to the Department”; the agent responded that he is not clear on this himself. He acknowledged that the matter before the Tribunal is the application for review in relation to the sub-class 801, and he asked the Tribunal how he could add the decision in relation to the 820 visa on to the current application for review being heard by the Tribunal. In response, the Tribunal said that as far as it was aware, he could not do this, noting that the sub-class 820 visa refusal has already been the subject of a review and the Tribunal is not able to rehear the review. He then asked whether it was possible for the Tribunal to agree with him and send the sub-class 801 back to the Department with a note that there may be some invalidity of the notification of the sub-class 820 visa refusal notice as well. The Tribunal repeated that it did not have the refusal of the sub-class 820 via application before it, and it can only “send” a decision (the subject of an application for review before it) to the Department if it decides as a matter of law that the decision was wrong. He then said that he has brought to the Tribunal’s attention the error in the first Tribunal’s decision as to the date of cohabitation which he submitted came about through a miscommunication of the then agent with the applicant. The Tribunal noted that it was not a reliance on the agent which led the first Tribunal to have concerns with the date of cohabitation; instead the first Tribunal referred to the inconsistent and evasive evidence from the applicant and his wife[7] and found that the parties were not in a longstanding spousal relationship at the time of application. The Tribunal again notes that if the applicant had issue with the decision relating to the sub-class 820 visa, he could have lodged an application for review to the Federal Circuit Court of Australia.

   [7] Refer to first Tribunal’s decision record.

10. In relation to this oral submission, the Tribunal finds that, as there has already been a decision made by the first Tribunal to affirm the decision to refuse the temporary visa, this Tribunal cannot take any steps in relation to that decision of the first Tribunal as it is functus officio.

    Post hearing submissions

11. At the commencement of the post hearing submissions, it is stated that “it is accepted that on 20 October 2017 our client was served with a re-notification letter – Subclass 801 which was second stage of two stages Spouse Visa 820 and 801”.

12. However, an argument is made later in the submissions that because the applicant applied for both subclasses, there is a legal requirement that the Department refuse and notify both at the same time. The agent does not however provide any support for this argument in either the legislation or case law, and the Tribunal does not accept this argument. The circumstances in Basra v MIBP [2018] FCA 422 suggest there is not a legal requirement for the Department to refuse and notify both visa refusals at the same time and s.66(4) of the Migration Act makes it clear that: ‘Failure to give notification of a decision does not affect the validity of the decision’.

13. It is also argued in the submissions that the first Tribunal could not consider an “appeal” for the permanent visa application “as it was not correctly notified”. The Tribunal has, above, accepted that the notification letter of 12 December 2012 did not notify the decision to refuse the permanent visa; but instead the 20 October 2017 notification letter notified the decision to refuse the permanent visa.

14. This submission appears to be linked to the submission that “as a result of incorrect notification, our client’s right to appeal against the decision for Partner (Residence) (Class BS Subclass 801) has been lost forever”. It is difficult to understand this submission given that the applicant (through the agent) had lodged the current application for review of that decision and it is currently before this Tribunal. The Tribunal does not accept that the applicant has faced a legal disadvantage in not having an application for review of the refusal of the permanent visa decided by the first Tribunal in 2013 because the same legal requirement that applied then still applies now; in order to be granted a permanent spouse visa, the applicant must hold or have held a temporary spouse visa, but the first Tribunal did not accept that this applicant met the criteria for a temporary spouse visa.

15. The submissions also stated that the applicant was denied procedural fairness by not being able to “properly appeal” against the decision for both the temporary and the permanent partner visa at the same time. For the same reasons expressed above, the Tribunal does not find this submission persuasive. It notes that, even if the delegate had notified both decisions on 12 December 2012, and even if the applicant had lodged two applications for review to the first Tribunal, he would have encountered the same hurdle then as he encounters now; in order to be granted a permanent spouse visa, the applicant must hold or have held a temporary spouse visa, but the first Tribunal did not accept that this applicant met the criteria for a temporary spouse visa.

16. The Tribunal notes that the applicant has had the opportunity to lodge an application for review against the decision to refuse the temporary visa (which was heard by the first Tribunal) and that he has had an opportunity to lodge an application for review against the decision to refuse the permanent visa (which was heard by this Tribunal). The Tribunal does not accept that he has been denied procedural fairness or lost his current right of review, which has in fact been exercised.

17. The submissions conclude that the Tribunal should find the re-notification of 20 October 2017 to be invalid because it was not issued jointly with the notification of the refusal of the temporary visa. As noted above, there is no support provided for this argument and the Tribunal does not accept it. The Tribunal finds that the notification of 20 October 2017 was valid and is the basis of the current valid application for review being considered by this Tribunal.

18. It was then stated that in the alternative, the Tribunal should refer this to the Federal Court on a point of law or it should refer this case back to the Department on a compassionate or other suitable ground.

19. Considering the former argument, the Tribunal does not have the power to refer a case to the Federal Court as suggested. If the applicant or the Minister is dissatisfied with the Tribunal’s decision, either can seek judicial review of the decision under Division 2 of Part 8 of the Migration Act 1958 (Cth) (the Migration Act). Only the High Court, Federal Court and Federal Circuit Court have jurisdiction in relation to migration decisions.[8] The two key avenues for judicial review are to the Federal Circuit Court for review under s.476(1) of the Migration Act and to the High Court pursuant to s.75(v) of the Constitution. The scope of the Federal Court’s jurisdiction in relation to migration decisions include those matters transferred to it by the Federal Circuit Court.[9]

    [8] s.484(1).

    [9] s.476A.

20. The original jurisdiction of the Federal Court is outlined in s.39B of the Judiciary Act 1903 (Cth). The scope of the Federal Court’s jurisdiction in relation to migration decisions is generally limited to proceedings transferred to it by the Federal Circuit Court and migration decisions made by the General Division of the AAT (e.g. under s.500) or the Minister personally under ss.500, 501, 501A, 501B and 501C of the Migration Act.[10] The Tribunal is not permitted to refer a question of law in these proceedings to the Federal Court as suggested in the submissions.[11]

    [10] s.476A. See also s 43C of the AAT Act 1975.

    [11] s.45, s.43C Administrative Appeals Tribunal Act 1975.

21. Considering the latter argument, the Tribunal has the power to find that it has no jurisdiction to consider an application for review, or it can remit or affirm the Department’s decision. It does not otherwise have the power to refer the case back to the Department with a “recommendation that a new notice” be issued covering both the temporary and permanent visa application refusals.

22. Consideration of the submissions as an application for Ministerial Intervention: While the Tribunal is unsure as to whether the agent was seeking in the post hearing submissions that the Tribunal refer the case to the Minister, it considered this for completeness, noting that it has the power to recommend Ministerial Intervention. However, on the circumstances before it, the Tribunal declines to do so. Those circumstances include that the applicant came to Australia as a student, did not complete his studies[12], remained in Australia unlawfully for more than two years after his visa ceased, lodged a spouse visa onshore instead of going offshore to do so, was found by the first Tribunal to not meet the requirements for an onshore temporary spouse visa, and to have again remained unlawfully present for a further 3.5 years before being arrested. While the Tribunal accepts that the applicant claimed to have not been notified of the first Tribunal’s decision, he did not suggest that he made any enquiries during those years as to whether a decision had been made by the first Tribunal. The Tribunal does not accept that the circumstances of this case meet the conditions for recommendation for Ministerial Intervention by the Tribunal; this does not however prevent the applicant from making an application to the Minister himself or with the assistance of his agent.

    [12] Paragraph 1 of the First Tribunal’s decision.

    The legal requirement to be granted a permanent spouse visa

23. As explained before and at the hearing, it is a legal requirement that the applicant held or holds a Temporary Spouse visa (Class UK 820) before a Permanent Spouse visa (Class BS 801) can be granted. The applicant provided the Tribunal with his application for review form, the notification from the Department dated 20 October 2017, as well as the delegate’s decision record dated 12 December 2012. Those documents confirm that the applicant does not hold and has not held a temporary spouse visa. It was not suggested at hearing or thereafter that the applicant holds or has held a temporary spouse visa. It was not suggested at hearing or thereafter that he could have satisfied the criteria for a permanent spouse visa (as it is admitted that he has not held/does not hold a temporary spouse visa) at any time.

24. The Tribunal finds that the applicant does not meet the criteria for a Partner (Residence) (Class BS) Subclass 801 (Spouse) visa as he does not hold and has not held a Subclass UK 820 visa as required by r.801.221(1) and the following subclauses.

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

    DECISION

26. The Tribunal affirms the decision not to grant the applicant a Partner (Residence) (Class BS) visa.

    Christine Cody
    Member

    
    

    Annexure A

    801.221

    (1) The applicant meets the requirements of subclause (2), (2A), (3), (4), (5), (6) or (8).
    (2) An applicant meets the requirements of this subclause if:

    (a) the applicant is the holder of a Subclass 820 visa; and

    (b) the applicant continues to be sponsored for the grant of the Subclass 820 (Partner) visa by:

    (i) the sponsoring partner; or
    (ii) the Australian citizen, Australian permanent resident or eligible New Zealand citizen who sponsored the applicant for that visa; and

    (c) the applicant is the spouse or de facto partner of the sponsoring partner; and
    (d) subject to subclauses (6A) and (7), at least 2 years have passed since the application was made.

    (2A) An applicant meets the requirements of this subclause if:

    (a) the applicant is the holder of a Subclass 820 (Partner) visa which the Minister has decided, under section 345, 351, 417 or 501J of the Act, to grant to the applicant; and
    (b) the applicant is the spouse or de facto partner of the sponsoring partner; and
    (c) subject to subclauses (6A) and (7), at least 2 years have passed since the Minister made the decision mentioned in paragraph (a).

    (3) An applicant meets the requirements of this subclause if the applicant is the holder of a Subclass 820 visa granted on the basis that the applicant met the requirements of subclause 820.221(2).

    (4) An applicant meets the requirements of this subclause if the applicant is the holder of a Subclass 820 visa granted on the basis that the applicant met the requirements of subclause 820.221(3).

    (5) An applicant meets the requirements of this subclause if the applicant:

    (a) is the holder of a Subclass 820 visa; and
    (b) would meet the requirements of subclause (2) or (2A) except that the sponsoring partner has died; and
    (c) satisfies the Minister that the applicant would have continued to be the spouse or de facto partner of the sponsoring partner if the sponsoring partner had not died; and
    (d) has developed close business, cultural or personal ties in Australia.

    (6) An applicant meets the requirements of this subclause if:

    (a) the applicant is the holder of a Subclass 820 visa; and
    (b) the applicant would meet the requirements of subclause (2) or (2A) except that the relationship between the applicant and the sponsoring partner has ceased; and
    (c) either or both of the following circumstances applies:

    (i) either or both of the following:

    (A) the applicant;
    (B) a dependent child of the sponsoring partner or of the applicant or of both of them;

    has suffered family violence committed by the sponsoring partner;
    (ii) the applicant:

    (A) has custody or joint custody of, or access to; or
    (B) has a residence order or contact order made under the Family Law Act 1975 relating to;
    at least 1 child in respect of whom the sponsoring partner:
    (C) has been granted joint custody or access by a court; or
    (D) has a residence order or contact order made under the Family Law Act 1975; or
    (E) has an obligation under a child maintenance order made under the Family Law Act 1975, or any other formal maintenance obligation.

    Note: For special provisions relating to family violence, see Division 1.5.

    (6A) Paragraphs (2)(d) and (2A)(c) do not apply to an applicant who at the time of making the application was in a long-term partner relationship with the sponsoring partner.

    (7) Nothing in paragraphs (2)(d) and (2A)(c) prevents the Minister, less than 2 years after the application is made:

    (a) refusing to grant a Subclass 801 visa; or
    (d) approving the grant of a Subclass 801 visa to an applicant who meets the requirements of subclause (5) or (6).

    (8) The applicant meets the requirements of this subclause:

    (a) if the applicant held a Subclass 820 (Partner) visa that ceased on notification of a decision of the Minister to refuse a Subclass 801 visa; and
    (b) if the Tribunal:

    (i) has remitted that decision for reconsideration and, as a result, the Minister decides that the applicant satisfies the criteria for the grant of a Subclass 801 visa apart from the criterion that the applicant hold a Subclass 820 visa; or
    (ii) has determined that the applicant satisfies the criteria for the grant of a Subclass 801 visa apart from the criterion that the applicant hold a Subclass 820 visa.