Mohamed Rafeek (Migration)

[2018] AATA 3229

Mohamed Rafeek (Migration) [2018] AATA 3229 (12 July 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Mohamed Rifkhan Mohamed Rafeek

CASE NUMBER:  1607284

DIBP REFERENCE(S):  CLF2013/95214

MEMBER:Nicholas McGowan

DATE:July 12, 2018

PLACE OF DECISION:  Melbourne

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



Statement made on 12 July 2018 at 7:41am

CATCHWORDS
Migration – Partner (Residence) (Class BS) visa – Subclass 801 (Partner) – Where applicant has departed Australia – Applicant required to be present in Australia for grant of visa – Decision affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, 801.411

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. An application was made to the Tribunal on 22 May 2016 for review of a decision made by a delegate of the Minister for Immigration on 21 April 2016 to refuse to grant the applicant a Partner (Residence) (Class BS) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 2 May 2013 on the basis of his relationship with his sponsor. At that time, Class BS contained only one subclass: Subclass 801 (Partner). The criteria for the grant of this visa are set out in Part 801 of Schedule 2 to the Migration Regulations 1994 (the Regulations).

3. The Tribunal conducted a public hearing in Melbourne on 11 July 2018. The applicant was invited to attend. While the applicant did not attend in person, it was evident to the Tribunal from his email communication to the Tribunal (folio 49) that he was in Sri Lanka, having earlier departed Australia. The applicant’s advice to the Tribunal was that he’d departed Australia on a Bridging Visa C which does not permit his return. The applicant confirmed he had no visa to return to Australia and his efforts to acquire such had not succeeded.

4. In this instance, where it is clear the applicant has left Australia and has no visa to return and no clear prospect of any visa being granted to permit his to return for the purposes of pursing his partner visa application, the Tribunal must consider Clause 801.411 of the Act. This specific criterion requires the applicant to be in Australia when the visa is granted. This criterion was discussed with the applicant during the public hearing held 11 July 2018. The applicant claimed that his past migration agent had provided incorrect advice in regards to his capacity to leave Australia on his bridging visa, and that that advice had resulted in his current predicament. No corroborative documentary (or any other) evidence has been provided in support of this oral claim, and none is evident in the files on this case. The Tribunal indicated to the applicant that it understood his claim, though it outlined that it had no discretion or authority in regards to the requirements and rules attached to his bridging visa. The Tribunal explained to the applicant that although the Tribunal does not ‘grant’ partner visa/s per se, it is required to apply all the criteria applicable to his partner application consistent with the legislative requirements.

5. As the applicant is neither in Australia, and has no reasonable or foreseeable prospect of being in Australia, it is clear to the Tribunal that the applicant cannot meet the criterion that requires him to be so for the grant of the partner visa under review. It follows that the applicant does not satisfy clause 801.411 of the Act. The applicant therefore does not satisfy a necessary criteria required for the grant of the partner visa.

   DECISION

6. Accordingly, and given all of the above, the Tribunal affirms the decision not to grant the applicant a Partner (Residence) (Class BS) visa.

   
   
   

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