Lazar (Migration)

[2018] AATA 613

Lazar (Migration) [2018] AATA 613 (2 March 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Lorena Alexandra Lazar

VISA APPLICANT:  Mr Abel Adrian Lazar

CASE NUMBER:  1615276

DIBP REFERENCE(S):  BCC 2016/ 1477338

MEMBER:Kira Raif

DATE:2 March 2018

PLACE OF DECISION:  Sydney

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:

·cl.309.226 of Schedule 2 to the Regulations

Statement made on 02 March 2018 at 1:57pm

CATCHWORDS
Migration – Partner (Provisional) (Class UF) visa – Subclass 309 – Sponsor is an Australian permanent resident at the time of the decision – Remit the application for the visa to the Minister

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994 Schedule 2 cls 309.211, 309.221, 309.226

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant

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 14 July 2016 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 applicant is a national of Romania born in January 1987. He applied for the visa on 17 April 2016 on the basis of his relationship with his sponsor, the review applicant. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.309.221 because the sponsor ceased to be an Australian permanent resident. The sponsor seeks review of the delegate’s decision.

3. No hearing was held in this case as the Tribunal as able to make a favourable decision on the material before it.

   Relevant law

4. At the time of application, Class UF contained only one subclass: Subclass 309 (Partner (Provisional). The criteria for the grant of this visa are set out in Part 309 of Schedule 2 to the Migration Regulations 1994 (the Regulations).

5. Relevantly, cl. 309.211 requires an applicant to be the spouse or de facto partner of an Australian citizen, permanent resident or eligible New Zealand citizen. The applicant must continue to meet that requirement at the time of decision: cl. 309.221.

   Is the applicant the spouse of an Australian permanent resident?

6. The review applicant provided to the Tribunal a copy of the primary decision. It indicates that when the application was made, the sponsor was the holder of a permanent visa in Class BC, which was granted to her in July 2011. However, the sponsor’s visa ceased in July 2016 and at the time of the primary decision, the sponsor was no longer an Australian permanent resident and was not an Australian citizen or an eligible New Zealand citizen. The delegate found that the applicant did not meet cl. 309.221.

7. Electronic records before the Tribunal indicate that the sponsor was granted a Resident Return visa in August 2017 and that visa remains valid until August 2018. The Tribunal finds that at the time of this decision, the sponsor is an Australian permanent resident.

8. The Tribunal notes that the delegate has not conducted an assessment of the couple’s relationship and no consideration has been given as to whether the applicant is the spouse of the sponsor. In such circumstances, the Tribunal has formed the view that the matter should be remitted on a different ground to allow such an assessment to be made as the main reason for the primary decision is no longer at issue. The Tribunal finds that the applicant meets cl. 309.226.

   Conclusion

9. The appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 309 visa.

   DECISION

10. 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:

    ·cl.309.226 of Schedule 2 to the Regulations

    Kira Raif
    Senior Member