SINGH (Migration)

The Administrative Appeals Tribunal considered an application for a Partner (Residence) (Class BS) visa, Subclass 802 (Spouse). The applicant sought review of a decision that refused to grant the visa. The Tribunal was required to determine whether the applicant satisfied Public Interest Criterion (PIC) 4020 and clause 820.226 of the Migration Regulations as they applied at the time of the application.

The central legal issue was the applicability of PIC 4020 to the applicant's visa application, which was lodged on 24 October 2011. At that time, clause 820.226 of Schedule 2 to the Regulations dealt with the requirement for the applicant to hold a valid passport issued by an official source, or for it to be unreasonable to require such a passport. Amendments to the Regulations introduced PIC 4020 as a criterion for the Subclass 820 visa at later dates, with transitional provisions. The Tribunal had to ascertain whether these amendments, particularly the introduction of PIC 4020, validly applied to applications made before the amendments took effect.

The Tribunal reasoned that the transitional provisions introducing PIC 4020 did not validly incorporate that requirement for applications made prior to 24 November 2012. Therefore, at the time of the applicant's application, PIC 4020 was not a criterion that needed to be satisfied. The delegate had incorrectly applied the law by requiring the applicant to meet PIC 4020. The Tribunal found that the applicant did satisfy clause 820.226 as it applied at the time of application, based on the evidence of his passport.

Consequently, the Tribunal remitted the application for reconsideration by the Minister, with a direction that the applicant met the criteria under clause 820.226 of Schedule 2 to the Regulations. The Minister was to consider the remaining criteria for the Subclass 820 visa.