Mohamed Rafeek (Migration)

The Administrative Appeals Tribunal (AAT) considered an application for a Partner (Residence) (Class BS) visa, Subclass 801, made by Mr. Mohamed Rafeek. The central dispute concerned whether Mr. Rafeek met the requirements for the grant of this visa, particularly in light of his departure from Australia.

The primary legal issue before the Tribunal was whether Mr. Rafeek satisfied clause 801.411 of the *Migration Act 1958* (Cth), which mandates that an applicant must be in Australia for the grant of a Partner (Residence) visa. The Tribunal was required to determine if Mr. Rafeek's physical presence in Australia at the time of the visa grant was a necessary criterion that he had met.

The Tribunal reasoned that Mr. Rafeek's absence from Australia, coupled with no reasonable or foreseeable prospect of his return, meant he could not fulfil the requirement of being present in Australia for the visa to be granted. Consequently, the Tribunal concluded that Mr. Rafeek did not satisfy clause 801.411 and, therefore, did not meet a necessary criterion for the visa. The Tribunal affirmed the decision not to grant the visa.