1415482 (Migration)

[2015] AATA 3221

1415482 (Migration) [2015] AATA 3221 (23 July 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Sakib Sobhan

VISA APPLICANT:  Ms Maliha Ferdous

CASE NUMBER:  1415482

DIBP REFERENCE(S):  OSF2013/019193

MEMBER:Margie Bourke

DATE OF ORAL DECISION:  23 July 2015, 11.20am

DATE OF WRITTEN STATEMENT:         23 July 2015

PLACE OF DECISION:  Melbourne

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 (Partner (Provisional)) visa:

·cl.309.213 and cl.309.222 of Schedule 2 to the Regulations.

Statement made on 23 July 2015 at 12:28pm

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 7 August 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 applied for the visa on 5 August 2013 on the basis of her relationship with her sponsor, the review applicant. At that time, Class UF contained only one subclass: Subclass 309 (Partner (Provisional). The criteria for the grant of this visa are set out in Part 309 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.309.213 and cl.309.222.

3. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.309.213 and cl.309.222 because the delegate was not satisfied the review applicant could meet the sponsorship undertakings due to the fact that he had carer responsibilities that prevented him from obtaining employment.

4. The review applicant appeared before the Tribunal on 23 July 2015 to give evidence and present arguments.

5. The review applicant was represented in relation to the review by his registered migration agent.

6. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is whether the review applicant meets the sponsorship requirements.

   SPONSORSHIP (cl.309.213)

   Are the sponsorship requirements met?

8. 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).

9. 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, and in r.1.20KA which sets a limit on the period before which certain Parent visa holders can sponsor another person for a Partner visa. There are further limits imposed by r.1.20KB in relation to sponsors charged with, or convicted of, certain offences where the visa application was made on or after 27 March 2010.

10. Based on the review applicant’s Australian passport issued on 9 February 2011, the Tribunal is satisfied as to the review applicant’s identity, and his date of birth. Based on the review applicant’s Australian passport, the Tribunal is satisfied that the review applicant was aged over the age of 18 at the time of application.

11. The review applicant provided the Tribunal with a copy of the Department’s decision record dated 7 August 2014. In this decision record the delegate recorded that the review applicant was not employed and in receipt of a carer benefit and did not own any assets. The delegate also recorded that the visa applicant had completed year 12, was aged 19, was not employed and had not previously been employed. In the Department’s decision record dated 7 August 2014, the delegate concluded that the review applicant would not be able to meet the sponsorship undertakings in providing the visa applicant with accommodation and financial support during the period of two years immediately following the visa applicant’s entry into Australia.

12. The Tribunal has considered the centre link payments summary document for the review applicant and is satisfied that he has received a carer benefit since 11 November 2011. The Tribunal has also considered the bank statements provided by the review applicant and is satisfied the carers benefit is paid directly into his bank account. The Tribunal has also considered the evidence that the review applicant resides with his mother for whom he is the carer, and that his wife would reside with him in his home. The Tribunal is satisfied that the review applicant has stable accommodation and a regular income. The Tribunal is satisfied the review applicant has consistently indicated since the time of application that he will provide financially for the visa applicant and provide accommodation for the visa applicant.  The review applicant gave an oral undertaking to the Tribunal that he would assist the visa applicant both financially and in relation to accommodation during the period of two years immediately following the grant of a provisional or temporary visa. The Tribunal is satisfied that the review applicant meets the sponsorship undertakings as required by r.1.20(2)(c) to provide for the visa applicant. 

13. For the above reasons, the Tribunal is satisfied that the requirements of cl.309.213 are met at the time of application, and the sponsorship of the visa applicant by the review applicant is approved by the Tribunal.

14. As the Tribunal is satisfied that the sponsorship referred to in cl.309.213 is approved, the Tribunal is satisfied that the visa applicant meets the sponsorship requirements at the time of decision. Accordingly the Tribunal is satisfied that the visa applicant meets the sponsorship requirements of cl.309.222.

15. On the evidence before the Tribunal the requirements of cl.309.213 and cl.309.222 are met.

16. 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

17. 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 (Partner (Provisional)) visa:

    ·cl.309.213 and cl.309.222 of Schedule 2 to the Regulations.

    Margie Bourke
    Member