O'Keeffe (Migration)

This matter concerned an application for review by an Irish citizen of a decision not to grant him a Partner (Residence) (Class BS) visa, Subclass 801. The applicant had initially applied for both a temporary Subclass 820 visa and the permanent Subclass 801 visa based on his relationship with his sponsor. He was granted the Subclass 820 visa, but the delegate subsequently refused to grant the Subclass 801 visa, finding that the applicant did not meet the criteria under cl.801.221 of the Migration Regulations 1994. Specifically, the delegate was not satisfied that the applicant met the requirements of cl.801.221(8), which pertains to holding a Subclass 820 visa that ceased upon notification of a decision to refuse a Subclass 801 visa. The applicant sought review of this decision before the Tribunal.

The primary legal issue before the Tribunal was whether the applicant satisfied the threshold requirement of cl.801.221(8) of the Migration Regulations 1994. This required the Tribunal to determine if the applicant's Subclass 820 visa had ceased on notification of a decision by the Minister to refuse a Subclass 801 visa. The applicant contended that he was under the assumption his visa had been cancelled due to character issues and that his previous legal representatives had appealed this cancellation. However, the Tribunal noted that the evidence indicated his Subclass 820 visa had been cancelled on 20 November 2019, and this cancellation did not appear to have occurred on notification of a decision to refuse the Subclass 801 visa.

The Tribunal reasoned that the crucial element of cl.801.221(8) was the specific manner in which the Subclass 820 visa ceased. As the applicant's Subclass 820 visa was cancelled and there was no evidence of an appeal against that cancellation that would satisfy the condition, the Tribunal concluded that the applicant could not meet this specific criterion. The Tribunal clarified that it lacked jurisdiction to consider the cancellation of the Subclass 820 visa or previous bridging visa applications. Despite the applicant's concerns about the cost and perceived futility of the application process, the Tribunal explained its role was not to provide advice on prospects of success.

Ultimately, the Tribunal affirmed the decision not to grant the applicant a Partner (Residence) (Class BS) visa, finding that he did not satisfy the criteria for its grant.