Tengku Farihah Najihan (Migration)

[2020] AATA 3903

Tengku Farihah Najihan (Migration) [2020] AATA 3903 (29 July 2020)

DECISION RECORD

DIVISION:  Migration & Refugee Division

APPLICANT:  Ms Tengku Farihah Najihan

CASE NUMBER:  1904574

DIBP REFERENCE(S):  BCC2017/4529495

MEMBER:  Joseph Francis

DATE AND TIME OF

ORAL DECISION AND REASONS:         29 July 2020 at 9:58 am (WA time)

DATE OF WRITTEN RECORD:                22 September 2020

PLACE OF DECISION:  Perth

DECISION:  The Tribunal affirms the decision under review.

Statement made on 22 September 2020 at 12:12pm

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – application made more than 28 days after last substantive visa held – relationship ended – decision under review affirmed

LEGISLATION
Migration Regulations 1994 (Cth), Schedule 2, cl 820.211(2)(d)(ii), Schedule 3, criterion 3001

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 26 February 2019 to refuse to grant the visa applicant a Partner (Temporary) (Class UK) Subclass 820 visa under the Migration Act 1958 (the Act).

1. At the hearing on 29 July 2020 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

STATEMENT OF DECISION AND REASONS

1. Ms Najihan, the visa applicant, applied for the visa on 30 June 2017 on the basis of her relationship with Mr John Douglas Crew. On 28 October 2016 her previous visa ceased and the applicant, without any visa, remained unlawfully in Australia. On 30 November 2017 whilst in immigration detention Ms Najihan lodged a partner visa application.

1. Subclause 820.211 (2)(d)(ii) states;

You must satisfy criteria 3001, 3002, 3003 and 3004. Unless the Minister is satisfied there are compelling reasons to not apply those criteria.

1. Schedule 3 of criterion 3001 requires a valid visa application be made within 28 days after the last day the applicant held a substantive visa. As such, the delegate was not satisfied that the applicant met criterion 3001. The Tribunal wrote to the applicant on 7 May 2020 inviting her to comment on or respond to information as to why a schedule 3 criterion should not be applied and requesting such a reply by 21 May 2020.

1. On 19 May 2020 the applicant’s representative, Mr Martin Udall, wrote to the Tribunal requesting a 14 day extension for information to be provided stating that they were in the process of gathering evidence from the Magistrates’ Court of Western Australia relating to a family violence claim and that such evidence would be relevant to the applicant’s response.

1. The Tribunal granted an extension until 4 June 2020 as requested by the representative. On 4 June 2020 the representative, Mr Udall, wrote to the Tribunal and stated, and I quote;

We have now had the opportunity to interview the applicant in detail, examine  the DOHA files well as other information. We regret to advise that no compelling circumstances can be made out nor do we have any arguments available why the Schedule 3 criterion do not apply in this case. We are thus unable to provide any further comments or information to the Tribunal’s request of 7 May 2020 except by way of this letter.

1. The Tribunal invited the applicant to attend a hearing on 29 July 2020. The Tribunal exercised its discretion to hold the hearing by telephone.

1. The hearing was held during the Covid-19 pandemic. The Tribunal determined it was reasonable to hold a hearing via telephone. Having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and the delay to the matter for hearing was not to have been conducted and therefore not proceeded.

1. The Tribunal is satisfied the applicant was given a more than fair opportunity to  give evidence and present arguments.   Up until the hearing on 29 July 2020 and during the

hearing, no evidence was received by the Tribunal and no submissions in support of any circumstances that would warrant a waiver of the Schedule 3 criterion.

1. No evidence was provided with regard to the genuine nature of the relationship with the sponsor and no evidence was provided with regard to any claim of family violence.

1. The Tribunal notes that from the department’s file very little evidence was provided in support of the genuine nature of the relationship with the visa application. The visa sponsor, Mr Crew did not attend the hearing.

1. The Tribunal accepts evidence from the visa application that the relationship with the sponsor ended in September 2018.

1. The Tribunal was provided no reason or request to consider a waiver to the Schedule 3 criteria.  The Tribunal therefore affirms the decision under review.

DECISION

1. The decision is the Tribunal affirms the decision under review not to grant a partner (temporary) (class UK) (subclass 820) visa to Ms Tengku Farihah Najihan.

Joseph Francis Member