O'Keeffe (Migration)

[2020] AATA 5268

O'Keeffe (Migration) [2020] AATA 5268 (18 September 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Jordan Lucas O'Keeffe

CASE NUMBER:  2003750

DIBP REFERENCE(S):  BCC2016/2146695

MEMBER:Susan Trotter

DATE OF ORAL DECISION:  18 September 2020

DATE OF WRITTEN STATEMENT:         2 October 2020

PLACE OF DECISION:  Brisbane

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

Statement made on 02 October 2020 at 9:31am

CATCHWORDS
MIGRATION – Partner (Resident) (Class BS) visa – Subclass 801 (Spouse) – holder of a Temporary Partner visa – Subclass 820 visa that ceased on notification of a decision – character issues – relationship with the sponsor had ceased – children of the relationship – decision under review affirmed          

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 801.221

STATEMENT OF REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 5 February 2020 to refuse to grant the applicant a Partner (Residence) (Class BS) visa under s.65 of the Migration Act 1958 (the Act).

2. At the hearing on 18 September 2020, the Tribunal made an oral decision. The following are the written reasons for the decision.

   BACKGROUND

3. There is a two-stage process for partner visas initiated by a joint application for both visas. The applicant must hold a provisional visa in order to be granted a permanent visa. The grant of the provisional visa enables an applicant to remain in Australia on a temporary basis. The grant of a permanent visa may subsequently be considered and would generally depend on whether the relationship has continued for a period of at least two years or whether other limited circumstances exist.

4. On 23 June 2016, the applicant, a now 25-year-old citizen of Ireland, applied for a Partner (Temporary) (Class UK) visa (a Subclass 820 visa) and a Partner (Residence) (Class BS) visa (a Subclass 801 visa) on the basis of his relationship with his sponsor, Ashleigh Ryan.

5. The criteria for the grant of the visas are set out in Part 820 and Part 801 of Schedule 2 to the Migration Regulations 1994 (the Regulations).

6. The applicant was granted a Subclass 820 visa on 20 July 2017.

7. The delegate refused to grant the visa on the basis that the applicant did not satisfy cl.801.221 of Schedule 2 of the Regulations. In particular, the delegate was not satisfied that cl.801.221(2), (2A), (3), (4), (5) or (6) were met as the applicant is not now the holder of a Subclass 820 visa. As regards cl.801.221(8), the delegate was not satisfied that the applicant met the requirement because he had not held a Subclass 820 visa that ceased on notification of a decision of the Minister to refuse a Subclass 801 visa.

8. The applicant lodged an application with the Tribunal on 26 February 2020 seeking review of the delegate’s decision. At the time of lodging his application, the applicant was represented by a registered migration agent. The applicant provided the Tribunal with a copy of the delegate’s decision with his application.

9. On 9 September 2020, the applicant lodged a Notice of Representation with the Tribunal appointing a new registered migration agent and also advised the Tribunal that counsel had been instructed to appear at the hearing of the matter.

10. On 14 September 2020, the Tribunal provided a copy of a s.376 certificate issued by the Department, relating to information on its file, to the applicant care of his representative.

11. On 15 September 2020, the applicant’s representative provided a comprehensive chronology of events, an outline of the matter and a document index together with copies of all documentary evidence to assist in the hearing. The applicant’s representative also advised that they were no longer instructed to act on behalf of the applicant and that their instructions were limited to provision of the chronology, outline and document index.

12. On 16 September 2020, the Tribunal also provided a copy of a s.376 certificate issued by the Department to the applicant care of Yongah Hill Immigration Detention Centre and requested that the applicant complete and return a change of contact details form, given that the applicant’s representative had advised the Tribunal that they no longer held instructions in the matter and would not be attending the hearing.

13. On 17 September 2020, the applicant provided the Tribunal with an Appointment of Representative/Appointment of Authorised Recipient form confirming details for Ms Emma Williams as his new representative/authorised recipient.

14. The applicant appeared before the Tribunal on 18 September 2020 by videoconference to give evidence and present arguments. The Tribunal observes that the applicant’s girlfriend and nominated representative/recipient, Ms Emma Williams, was also available to give evidence to the Tribunal. However, as discussed with the applicant at hearing, and as will be canvassed further in these Reasons, it was not necessary to hear evidence from her.

    ISSUES

15. To be granted the Subclass 801 visa, an applicant must satisfy one of the primary criteria in cl.801.221 at the date of decision. This requires that an applicant satisfies subclause (2), (2A), (3), (4), (5), (6) or (8) of cl.801.221 of Schedule 2 to the Regulations.

16. Each of subclauses (2), (2A), (3), (4), (5) and (6) require that the applicant be the current holder of a Subclass 820 visa. It is not in dispute that the applicant is no longer the holder of a Subclass 820 such that none of these subsections are met. The Tribunal finds that the requirements of cl.801.221(2), (2A), (3), (4), (5) or (6) are not met.

17. Clause 801.221(8) provides as follows:

    (8)  The applicant meets the requirements of this subclause:

    (a)      if the applicant held a Subclass 820 (Partner) visa that ceased on notification of a decision of the Minister to refuse a Subclass 801 visa; and

    (b)      if the Tribunal:

    (i)        has remitted that decision for reconsideration and, as a result, the Minister decides that the applicant satisfies the criteria for the grant of a Subclass 801 visa apart from the criterion that the applicant hold a Subclass 820 visa; or

    (ii)       has determined that the applicant satisfies the criteria for the grant of a Subclass 801 visa apart from the criterion that the applicant hold a Subclass 820 visa. 

18. The threshold requirement for cl.801.221(8) to be met is therefore whether the applicant held a Subclass 820 visa that ceased on notification of a decision of the Minister to refuse a Subclass 801 visa.

    CONSIDERATION

19. The applicant told the Tribunal that he was originally under the assumption that the visa had been cancelled due to lack of documentation and not passing the character test. Further, he told the Tribunal that he thought his solicitor at the time had appealed the cancellation of the Subclass 820 visa, but he now understands that that did not occur. He only found that out recently when he changed law firms. However, it was all getting too expensive and he decided to represent himself.

20. The Tribunal discussed with the applicant that the evidence before the Tribunal is that while he was the holder of a Subclass 820 visa, as noted by the delegate in their decision, this visa had been cancelled on 20 November 2019, and that based on that information it would seem that the Subclass 820 visa had not ceased on notification of a decision of the Minster to refuse a Subclass 801 visa, meaning that cl.801.221(8) could not be met. The applicant repeated that he was under the assumption that his visa was cancelled because of character issues. The Tribunal discussed with the applicant its concern that if he is not the holder of a Subclass 820 because it has been cancelled, and he has not appealed that decision, the Tribunal would not be able to find that he satisfies cl.801.221(8).

21. The applicant raised with the Tribunal that from his point of view, if he cannot meet, and could not have met, the requirement, he does not understand why they let him proceed with the Tribunal application and took $2,000 off him and gave him false hope. The Tribunal asked the applicant whether he had assistance from a migration agent at the time of lodging his application. The applicant responded that he did have assistance from a migration agent and that it was the one that he thought had appealed the cancellation. The applicant queried why there is an option to appeal the decision if it could not be successful. The Tribunal explained to the applicant that it is not the role of the Tribunal to provide an applicant with advice, including as to what their prospects of success might be in making an application. The Tribunal also discussed with the applicant that it had no jurisdiction to consider what had happened in relation to the Subclass 820 visa cancellation or his previous bridging visa applications.

22. The applicant stated that given when he walked in to hearing there was no way he could meet the requirement, it seems to him that the hearing was a waste of time. The Tribunal discussed with the applicant its usual obligation to invite the applicant to a hearing in circumstances where it could not make a favourable decision for him. The Tribunal notes that, alternatively, the applicant could have consented to the Tribunal proceeding to determine the matter without proceeding to hearing, and until two days prior to hearing was represented by a registered migration agent but did not make such an election.

23. The applicant also raised with the Tribunal that he understood that having children with his sponsor was one of the exceptions allowing him to be granted a permanent visa even if the relationship with the sponsor had ceased, as is the case in relation to his relationship with the sponsor. The Tribunal discussed with the applicant that there is such a possible exception with certain requirements to be met in that regard, but that in addition to satisfying those requirements the applicant also needs to be the holder of a Subclass 820 visa.

24. The applicant also raised with the Tribunal that the Australian Constitution requires consideration of the best interests of the child (his children). The Tribunal discussed with the applicant that the issue before the Tribunal does not include a discretion such that other circumstances can be taken into account, such as the best interests of children.

25. As discussed with the applicant at hearing, notwithstanding that there are understandably a number of circumstances of importance to the applicant, including the welfare of his children, the evidence before the hearing would be confined to evidence relevant to the issue in question before the Tribunal. On this basis, given the only issue before the Tribunal was whether the applicant had previously been the holder of a Subclass 820 visa that ceased on notification of a decision by the Minister to refuse to grant a Subclass 801 visa, an issue that was not in dispute, it was not necessary to hear evidence from Ms Williams. The Tribunal also notes that the material to which the s.376 certificate refers is of no relevance, and therefore not material to the only determinative issue before the Tribunal as to whether the applicant held a Subclass 820 (Partner) visa that ceased on notification of a decision of the Minister to refuse a Subclass 801 visa. The Tribunal has had no regard to nor placed any weight on the material the subject of the certificate.

26. The applicant also discussed with the Tribunal that he had been battling matters for two years, including deprivation of certain rights in detention (which he understood was not the Tribunal’s issue), and that he sought a decision immediately so that he could move towards going home to Ireland to then explore his rights in relation to his children.

27. The Tribunal has had regard to all of the evidence before it, including the applicant’s oral evidence at hearing and the comprehensive chronology of events, outline, and documents and document index provided by the applicant’s former representative.

28. Based upon all of the evidence, the Tribunal finds that the applicant did not hold a Subclass 820 visa that ceased on notification of a decision of the Minister to refuse a Subclass 801 visa such that cl.801.221(8)(a) is not met and consequently cl.801.221(8) as a whole is also not met.

29. The applicant therefore does not meet either subclause (2), (2A), (3), (4), (5), (6) or (8) of cl.801.221 of Schedule 2 to the Regulations as required.

30. For the reasons above, the applicant does not satisfy the criteria for the grant of the visa, and on the date of hearing the Tribunal made an oral decision to affirm the decision not to grant the applicant a Partner (Residence) (Class BS) visa.

    DECISION

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

    Susan Trotter
    Member