Li (Migration)

[2021] AATA 326

Li (Migration) [2021] AATA 326 (6 January 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Szu-Hsuan Li

CASE NUMBER:  1918637

HOME AFFAIRS REFERENCE(S):          BCC2018/3200417

MEMBER:Nicholas McGowan

DATE:Wednesday 6 January 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision under review.

Statement made 6 January 2021 at 2:31pm

CATCHWORDS

MIGRATION – Partner (Temporary) (Class UK) visa – waiver requirements not met – applicant returned to home country – decision under review affirmed

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 3

REVIEW

1. This is an application for review of a decision made on 25 June 2019 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).

2. The applicant applied for a Subclass 820 visa on 24 August 2018.

3. The delegate made the refusal decision on the basis that the applicant did not satisfy the Schedule 3 criteria or associated ‘waiver’.

4. Unable to make a favourable decision on the information before it alone, the Tribunal invited the applicant to a hearing into the review to be conducted on 5 January 2021. The hearing was attended by the applicant, who was assisted by an interpreter provided by the Tribunal.

   Consideration of evidence and arguments

5. The applicant arrived, then departed, Australia from 14 February 2013 to 20 February 2015 as the holder of a Temporary Working Holiday visa (subclass 417).

6. The applicant returned to Australia on 16 June 2015 as the holder of a Student visa (subclass 572). That visa was cancelled on 28 February 2017.

7. The applicant applied for a review of her cancelled Student (subclass 572) visa to the Administrative Appeals Tribunal (AAT) on 7 March 2017. The AAT (differently constituted) affirmed the delegate’s cancellation decision on 30 July 2018.

8. The applicant attempted to lodge partner visa applications on 03 June 2018 and 22 July 2018, though they were both found to be invalid.

9. On 24 August 2018, the applicant lodged a combined Partner (subclass 820/801) visa application and granted an associated Bridging visa E (subclass WE-050) on 03 May 2018 with No Work Right. Tow further Bridging visas E (subclass WE-050 with No Work Right were granted to the applicant on 30 August 2018 and 02 May 2019.

10. The applicant currently holds an associated Bridging visa E (subclass WE-050) with No Work Right.

11. As the Tribunal was unable to make a favourable decision on the information before it alone, the Tribunal conducted a hearing into the review on Tuesday 5 January 2021. The applicant was present, and an interpreter provided by the Tribunal Registry.

12. Prior to the hearing, on 9 December 2020, the applicant had written to the Tribunal via email. In that communication the applicant advised she is no longer in Australia and is now residing in her native Taiwan. The applicant also advised that she has now lodged a separate application for a partner visa, a subclass 309 visa offshore.

    Analysis

13. The applicant’s own evidence is that she is now offshore. This information was confirmed by the applicant herself at the hearing held 5 January 2021. The applicant also confirmed she has lodged a separate partner, subclass 309 temporary partner visa application.

14. It is clear that the applicant is now resident in Taiwan.

15. It is clear the applicant has no means of immediate return to Australia outside her Subclass 309 visa application.

16. In the circumstances of this review, where the applicant concedes she does not satisfy the Schedule 3 criteria, and the ‘waiver’ is not applicable as the applicant has already gone offshore to pursue a migration outcome, the Tribunal finds the applicant does not meet the Schedule 3 requirements under law, nor the alterative (waiver).

17. In addition, as the applicant is currently offshore, and without a visa to return to Australia, the applicant also does not satisfy clause 820.4: sub-clause 820.411, as she is not in Australia for the grant of the Subclass 820 visa she lodged on 24 August 2018.

    DECISION

18. The Tribunal affirms the application under review for the reasons given above.

    Nicholas McGowan
    Member