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1517516 (Migration) [2016] AATA  3263  (4 February 2016)

Last Updated: 24 February 2016

1517516 (Migration)  [2016] AATA 3263  (4 February 2016)

DECISION RECORD

DIVISION: Migration & Refugee Division

APPLICANTS: Ms Ying Liu
Mr Yanhui Liu

CASE NUMBER: 1517516

DIBP REFERENCE(S): CLF2010/135153 CLF2015/72033

MEMBER: Kira Raif

DATE: 4 February 2016

PLACE OF DECISION: Sydney

DECISION: The Tribunal remits the applications for Partner (Residence) (Class BS) visas for reconsideration, with the direction that the first named applicant meets the following criteria for Subclass 801 (Spouse) visa:

• Clause 801.226 of Schedule 2 to the Regulations.

Statement made on 04 February 2016 at 4:50pm

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 25 November 2015 to refuse to grant the applicants Partner (Residence) (Class BS) visas under s.65 of the Migration Act 1958 (the Act).
2. The applicants are nationals of China. They applied for the visas on 6 October 2010. The delegate refused to grant the visas on the basis that the first named applicant (the applicant) did not satisfy the requirements of cl.801.226 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the delegate found that the applicant did not meet Public Interest Criterion (PIC) 4020. The applicants seek review of the delegate’s decision.
3. The Tribunal determined that a hearing was not necessary in this case as it was able to make a favourable decision on the materials before it. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

CONSIDERATION OF CLAIMS AND EVIDENCE

4. The delegate found that the applicant did not meet PIC 4020 because the delegate found that the applicant was previously married to another person and failed to declare that marriage in her Partner visa application or when registering her marriage to the sponsor. For the following reasons, the Tribunal has formed the view that there is no requirement for the applicant to meet PIC 4020.
5. The PIC 4020 requirement was inserted as a criterion in Schedule 2 of the Migration Regulations 1994 for the Subclass 801 visa by the Migration Legislation Amendment Regulation 2013 (No.3) (SLI 2013, No.146).
6. Item 42 of Schedule 7 of the amending regulation purported to amend cl.801.226 by omitting ‘criterion 4021’ and substituting ‘criteria 4020 and 4021’. However, at the time of application in October 2010, cl.801.226 was a primary criterion requiring the applicant to be a holder of a valid passport. There is no reference in that clause to criterion 4020 or criterion 4021.
7. The Tribunal finds that the transitional provisions that introduced PIC 4020 did not validly incorporate that requirement to applications made in 2010. The Tribunal finds that at the time of the application PIC 4020 was not a criteria the applicant had to satisfy. Thus, the Tribunal finds that the delegate applied the wrong law in requiring the applicant to meet PIC 4020 and refusing to grant the applicant a Subclass 801 visa on the basis of not meeting that requirement.
8. In light of the above, the legally correct approach is for the Tribunal to make its decision on the basis of whether the applicant meets cl.801.226 as it was at the time of application, that is:

801.226 The 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. Evidence on the Department file held at folio 24 is a copy of a passport issued by P.R China to the applicant. There is nothing before the Tribunal to indicate that it was not issued to the applicant by an official source or is not in the form issued by the official source. On the basis of the above, the Tribunal finds that applicant satisfies cl.801.226 as it applied at the time of application.

DECISION

10. The Tribunal remits the applications for Partner (Residence) (Class BS) visas for reconsideration, with the direction that the first named applicant meets the following criteria for Subclass 801 (Spouse) visa:
    • Clause 801.226 of Schedule 2 to the Regulations.

Kira Raif
Senior Member