Wong (Migration)

[2018] AATA 3446

Wong (Migration) [2018] AATA 3446 (5 July 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Kon Keong Wong

CASE NUMBER:  1724534

DIBP REFERENCE(S):  BCC2017/1170880 PNJ

MEMBER:Ian Garnham

DATE:5 July 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 05 July 2018 at 12:08pm

CATCHWORDS
Migration – Partner (Residence) (Class BS) visa – Subclass 801 (Partner) – never held a subclass 820 visa – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2 cl 801.221

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 Immigration on 20 September 2017 to refuse to grant the applicant a Partner (Residence) (Class BS) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 24 March 2017 on the basis of his relationship with his sponsor. At that time, Class BS contained only one subclass: Subclass 801 (Partner). The criteria for the grant of this visa are set out in Part 801 of Schedule 2 to the Migration Regulations 1994 (the Regulations). 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. Relevantly to this matter the primary criteria include cl.801.221.

3. The delegate refused to grant the visa on the basis that the applicant did not satisfy cl.801.221 because; the visa applicant was not the holder of a subclass 820 visa and they were not a person that has held a subclass 820 visa that ceased on notification of a decision of the Minister to refuse the visa applicant a subclass801, in circumstances where the refusal decision was reviewed by the tribunal and remitted to the Minister for reconsideration, and where the visa applicant has been assessed as meeting the criteria for the grant of a subclass 801 visa apart from the criterion requiring the visa applicant to hold a subclass 820 visa.

4. The applicant appeared before the Tribunal on 21 June 2018 to give evidence and present arguments.

5. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

6. The applicant provided a submission via a previous registered migration agent dated 2 November 2017[1], but was unrepresented in relation to the review.

   [1] At FF: 23-39

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether the visa applicant meets the criteria for grant of a subclass 801 visa. Clause 801.221 requires:

   801.221

   (1)       The applicant meets the requirements of subclause (2), (2A), (3), (4), (5), (6) or (8).

9. At the hearing the visa applicant confirmed he does not hold and has never held a subclass 820 visa.  Subclauses 801.221 (2), (2A), (3), (4), (5), (6), and (8) requires that the visa applicant holds or has held a subclass 820 visa in the past.

10. As the visa applicant does not hold and has never held a subclass 820 visa they cannot meet the requirements of any of these subclauses. They therefore cannot meet the cl.801.221.

11. For the reasons above, the applicant does not satisfy the criteria for the grant of the visa.

    DECISION

12. The Tribunal affirms the decision not to grant the applicant a Partner (Residence) (Class BS) visa.

    Ian Garnham

    
    

    Member