Naaman (Migration)

[2019] AATA 4429

Naaman (Migration) [2019] AATA 4429 (16 July 2019)

WRITTEN STATEMENT OF DECISION

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Siba Naaman

VISA APPLICANT:  Mr Ali Aycha

CASE NUMBER:  1703047

DIBP REFERENCE(S):  2017007575

MEMBER:Nicholas McGowan

CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Spouse (Provisional)) – referred to Minister – compassionate circumstances – previous visa cancelled – criminal conduct – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 351, 501
Migration Regulations 1994 (Cth), Schedule 2, cl 309.226, Schedule 5, Criteria 5001

DECISION

1.    This tribunal refers this case to the Minister pursuant to s.351 of the Act; and,

2.    Affirms the Minister’s decision.

MINISTERIAL INTERVENTION

3.    This tribunal is satisfied that because the applicant does not meet the Special Return Criteria 5001 he has been unable to meet the criteria for the grant of the visa.

4.    This tribunal has referred this case out of compassion for the eight Australian citizens involved.

5.    Only the Minister has access to all the information in this case. It follows, only the Minister can fully and fairly assess whether the grant of the visa is appropriate.

REVIEW

6. The visa applicant has declared his previous Partner (Migrant)(Class BC)(Subclass 100) visa was cancelled in Australia on 25 February 2015 under section 501 of the Migration Act. A person who has been removed from Australia following cancellation of their visa because of a substantial criminal record, past or present criminal conduct, or a combination of past or present criminal and general conduct will not be eligible to be granted any visa to which criteria 5001 applies. Criteria 5001 applies in this visa class.

7.    The visa applicant applied for a new temporary partner (subclass 309) visa on 11 January 2017. A delegate for the Minister refused to grant that application on 2 February 2017. The review applicant validly appealed the Minister’s refusal decision to this tribunal on 22 February 2017. On 26 June 2019 this tribunal conducted a public hearing to provide the review applicant with an opportunity to present any evidence and arguments.

FINDINGS

8.    An essential criteria which must be met in order to grant a subclass 309 visa, is clause 309.226 in Schedule 2 of the regulations. That clause requires the visa applicant to satisfy schedule 5 criteria 5001. As the visa applicant does not satisfy 5001, he cannot meet an essential criterion for the grant of the subclass 309 visa application. It follows that this tribunal has no alternative but to affirm the Minister’s decision.

Statement made on 16 July 2019 at 8:26am