PRIYADARSHINI (Migration)

[2021] AATA 1645

PRIYADARSHINI (Migration) [2021] AATA 1645 (14 April 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms RACHNA PRIYADARSHINI

CASE NUMBER:  1803540

HOME AFFAIRS REFERENCE(S):          BCC2017/1056186

MEMBER:Russell Matheson

DATE:14 April 2021

PLACE OF DECISION:  Sydney

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

Statement made on 14 April 2021 at 7:36am

CATCHWORDS

MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – eligible New Zealand citizen sponsor – residence period in Australia – Skilled visa application – decision under review affirmed         

LEGISLATION

Migration Act 1958, ss 5, 65
Migration Regulations 1994, Schedule 2, cls 820.211, 820.221; rr 1.03, 1.15, 2.03
Social Security Act 1991

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s.65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant is a female national of Fiji born in April 1981. She applied for the visa on 17 March 2017 based on her relationship with her sponsor. At that time, Class UK contained only one subclass: Subclass 820 (Partner). The criteria for the grant of this visa are set out in Part 820 of Schedule 2 to the Migration Regulations 1994 (Cth). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria.

3. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.820.211 and cl.820.221 because the sponsor does not meet the sponsorship requirements in accordance with r.1. 03.

4. The applicant appeared before the Tribunal on 13 April 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor.

5. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in the present case is whether the sponsor meets the requirements of r.1.03 as an eligible New Zealand citizen and can sponsor the applicant under a Partner (Temporary) (Class UK) (Subclass 820) visa. Regulation 1.03 defines an eligible New Zealand citizen as who:

   (a) at the time of his or her last entry to Australia, would have satisfied public interest criteria

   4001 to 4004 and 4007 to 4009; and

   (b) either:

   (i) was in Australia on 26 February 2001 as the holder of a Subclass 444 (Special Category)

   visa that was in force on that date; or

   (ii) was in Australia as the holder of a Subclass 444 visa for a period of, or periods that total,
   not less than 1 year in the period of 2 years immediately before 26 February 2001; or

   (iii) has a certificate, issued under the Social Security Act 1991, that states that the citizen was, for the purposes of that Act, residing in Australia on a particular date.

   Hearing

7. The Tribunal informed the applicant that Departmental records indicate that her sponsor does not meet (b)(i) as he was not in Australia on 26 February 2001 and does not meet b(ii) as he has not resided in Australia for more than one year during the 2 year period immediately before 26 February 2001.

8. Additionally, the Tribunal also informed the applicant that no certificate has been issued to her sponsor under the Social Security Act 1991 (Cth) as specified under r.1.03 (b)(iii) with the application to confirm he resided in Australia on a particular date.

9. The Tribunal then informed the applicant that her sponsor does not meet r.1.03 as an eligible New Zealand citizen and therefore is unable to sponsor her under a Partner (Temporary) (Class UK) (Subclass 820) visa.

10. On 10 February 2018 the applicant wrote to the Tribunal stating that the parties had failed to seek guidance from the relative authorities or a migration agent. She further stated that the parties made a subjective opinion that resulted in them lodging a visa application that was not appropriate to their situation or circumstances. The applicant gave evidence that the parties are married and have been living together since arriving in Australia and that they have made a costly mistake which denies the applicant the opportunity to resided permanently in Australia with her spouse, after her Bridging visa expires.

11. The sponsor gave evidence that he had not resided in Australia for more than one year during the 2-year period immediately before 26 February 2001. He further stated that he has applied for a 189 Skilled visa nominating his wife as his spouse with a view to receiving permanent residency in Australia. It appears that the parties were unaware of the eligibility requirements of an eligible New Zealand resident when sponsoring a partner visa application and have now applied for an appropriate visa.

12. On the evidence before the Tribunal the requirements of cl.820.211 and cl 820.221 are not met.

    DECISION

13. The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.

    Russell Matheson
    Member