SINGH (Migration)

[2018] AATA 322

SINGH (Migration) [2018] AATA 322 (21 February 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr GURVINDER SINGH

CASE NUMBER:  1610892

DIBP REFERENCE(S):  CLF2016/17960

MEMBER:Fiona Meagher

DATE:21 February 2018

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal remits the application for a Partner (Temporary) (Class UK) visa, with the direction that the applicant meets the following criteria for a Subclass 820 (Partner (Temporary)) visa:

·cl.820.226 of Schedule 2 to the Regulations.

Statement made on 21 February 2018 at 8:01pm

CATCHWORDS

Migration – Partner (Residence) (Class BS) visa – Subclass 802 (Spouse) – Bogus Documentation – Official passport provided to the Tribunal – Limited evidence in relation to the relationship – Public interest Criterion considered

LEGISLATION
Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2 cl 820.226 Schedule 4 Criterion 4020

CASES
Guven v Minister for Immigration & Anor [2006] FMCA 311
Nassouh v Minister for Immigration and Multicultural andIndigenous Affairs (2000) FCA 788

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision of a delegate of the Minister for Immigration on 4 July 2016 to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 24 October 2011 on the basis of his relationship with his sponsor.

3. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.820.226 because he had provided bogus documents or false and misleading information to the department in relation to the application for the Visa and therefore did not satisfy Public Interest Criterion (PIC) 4020 (1) as required. The applicant applied for a review of that decision on 19 July 2016.

4. The applicant appeared before the Tribunal on 16 October 2017 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Parmajeet Kaur Matharu, Mr Arvinder Singh and Mr Amrinder Singh.

5. The applicant was represented in relation to the review by his registered migration agent.

6. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issues in the present case are whether the applicant has to satisfy PIC 4020, and did he satisfy cl.820.226 of the Regulations as it was at the time of his application.

8. At the time the applicant applied for the visa, on 24 October 2011, cl.820.226 of Schedule 2 to the Regulations, provided as follows:

   820.226The Minister is satisfied that:

   (a) the applicant is the holder of a valid passport that:

   (i) was issued to the applicant by an official source; and
   (ii) is in the form issued by the official source; or

   (b) it would be unreasonable to require the applicant to be the holder of a passport.

9. On 24 November 2012, the Regulations were amended. Between 24 November 2012 and 1 July 2013, cl.820.226 stated:

   820.226

   The applicant satisfies public interest criterion 4021.

10. Cl.820.226 was further amended with effect from 1 July 2013. The PIC 4020 requirement was inserted as a criterion for grant of a Subclass 820 visa by the Migration Legislation Amendment Regulation 2013 (No.3) (SLI No.146 of 2013) effective 1 July 2013 (the Amending Regulation). Item 41 of Schedule 7 of the Amending Regulation purported to amend cl.820.226 of Schedule 2 to the Regulations by:

    omitting ‘criterion 4021’ and substituting instead ‘criteria 4020 and 4021’.

11. The transitional provision states that this amendment applies in relation to an application fora visa made, but not finally determined, before 1 July 2013 or made on or after 1 July 2013.

12. However, for visa applications made before 24 November 2012, including at the time of the applicant’s application on 24 October 2011, cl.820.226 of Schedule 2 to the Regulations did not require an applicant to meet criterion 4021: rather, it dealt with identity and whether the visa applicant was the holder of a valid passport. At the time of the applicant’s application there was no reference in cl.820.226 of Schedule 2 to the Regulations to either criterion 4020.

13. The Tribunal finds that the transitional provision which introduced PIC 4020 did not validly incorporate that requirement to applications made prior to 24 November 2012. At the time of the applicant’s application on 24 October 2011, PIC 4020 was not criteria he was required to satisfy.

14. The delegate found that the applicant did not meet PIC 4020 and did not meet the waiver requirements such that PIC 4020 did not apply. However, as PIC 4020 was not a criteria that the applicant was required to satisfy, the delegate applied the wrong law in requiring the applicant to meet PIC 4020 and refusing to grant him a Subclass 820 Visa on the basis of him not meeting that requirement.

15. Based on a copy of the applicant’s passport, contained within the Department’s file at folio 200, the Tribunal is satisfied that his passport was issued to him by an official source and is in the form issued by that source. It follows that the Tribunal finds the applicant satisfies cl.820.226 as it applied at the time of application. At the hearing, the Tribunal heard some limited evidence in relation to the relationship, and the applicant’s personal qualities however for the purposes of this review, it has not been necessary for the Tribunal to make findings in respect of criteria relevant to the applicant’s Visa application other than with respect to cl.820.226.

16. Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 820 visa.

    DECISION

17. The Tribunal remits the application for a Partner (Temporary) (Class UK) visa, with the direction that the applicant meets the following criteria for a Subclass 820 (Partner (Temporary)) visa:

    ·cl.820.226 of Schedule 2 to the Regulations

    Fiona Meagher
    Member