1415066 (Migration)

[2015] AATA 3384

1415066 (Migration) [2015] AATA 3384 (18 August 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Syed Misbah

VISA APPLICANT:  Mrs Salma Akter

CASE NUMBER:  1415066

DIBP REFERENCE(S):  OSF2013/018974

MEMBER:Kira Raif

DATE:18 August 2015

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Partner (Provisional) (Class UF) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 309 (Spouse (Provisional)) visa:

·cl.309.213 of Schedule 2 to the Regulations

·cl.309.222 of Schedule 2 to the Regulations

Statement made on 18 August 2015 at 4:58pm

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 30 June 2014 to refuse to grant the visa applicant a Partner (Provisional) (Class UF) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant is a national of Bangladesh, born in October 1981. She applied for the visa on 28 February 2013 on the basis of her relationship with her sponsor, the review applicant. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.309.222 because the delegate found that the sponsorship limitations in r. 1.20J applied and that there were no compelling circumstances to waive it. The sponsor (the review applicant) seeks review of the delegate’s decision.

3. In reaching this decision, the Tribunal did not consider a hearing necessary as it was able to make a favourable decision on the material before it. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   Relevant law

4. The criteria for the grant of the Class UF visa are set out in Part 309 of Schedule 2 to the Migration Regulations 1994 (the Regulations). Relevantly to this matter the primary criteria include cl.309.213 and cl. 309.222. Clause 309.213 requires that the visa applicant is sponsored by the review applicant, where such person has turned 18; or where they have not, by the review applicant’s parent or guardian who has turned 18 and is either an Australian citizen, permanent resident or eligible New Zealand citizen (as defined in r.1.03 of the Regulations).

5. At the time of decision, this sponsorship must have been approved and still be in force: cl.309.222. Approval of sponsorship is subject to limitations contained in r.1.20J of the Regulations which sets a limit on the number of people that a person can sponsor in a lifetime and a minimum time that must lapse between each sponsorship.

   Are the sponsorship requirements met?

6. When making the application, the applicant was sponsored by Mr Syed Mohammad Misbah, born in December 1978. Mr Misbah claims to be the spouse of the applicant. The Tribunal is satisfied that at the time of the application, the applicant was sponsored by her spouse who had turned 18. The Tribunal is satisfied that the applicant meets cl. 309.213.

7. Clause 309.222 requires that sponsorship to be approved and to be in force at the time of the decision. When making the application for review, the review applicant provided to the Tribunal a copy of the primary decision record. It indicates that he had previously sponsored another person for a Partner visa. That sponsorship was made on 6 October 2009 and the visa was granted on 7 May 2010. The Tribunal finds that the limitation in r. 1.20J applies because another person had been granted a relevant permission as the spouse of the sponsor on the basis of a sponsorship or nomination by the sponsor. There is nothing to suggest that the circumstances set out in r. 1.20J(4) apply in this case.

8. The relevant period prescribed by r. 1.20J(1)(b) is not less than 5 years since the date of making the application for the relevant permission. In the present case, the application for the relevant permission was made in October 2009. Five years had passed in October 2014. The Tribunal is satisfied that at the time of this decision, r. 1.20J(1)(b) is met.

9. There is nothing before the Tribunal to indicate that more than one other person has been granted a relevant permission. There is nothing to suggest that the sponsor was granted a relevant permission as the spouse or de facto partner of another person. The Tribunal finds that r. 1.20J(1) is met. The Tribunal is satisfied that the sponsorship limitation in r. 1.20J has been met the time of this decision.

10. There is nothing before the Tribunal to suggest that the sponsorship limitations in r. 1.20KA and r. 1.20KB apply. As such, the Tribunal approves the sponsorship referred to in cl. 309.213. The Tribunal finds that the visa applicant meets cl. 309.222.

    Conclusion

11. 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 309 visa.

    DECISION

12. The Tribunal remits the application for a Partner (Provisional) (Class UF) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 309 (Spouse (Provisional)) visa:

    ·cl.309.213 of Schedule 2 to the Regulations; and

    ·cl.309.222 of Schedule 2 to the Regulations

    Kira Raif
    Senior Member