1417023 (Migration)

[2016] AATA 3331

1417023 (Migration) [2016] AATA 3331 (23 February 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Kim Edward Green

VISA APPLICANT:  Mrs Lumpan Green

CASE NUMBER:  1417023

DIBP REFERENCE(S):  OSF2014/002557 OSF2014002557

MEMBER:John Billings

DATE:23 February 2016

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 of Schedule 2 to the Regulations

·cl.309.222 of Schedule 2 to the Regulations

Statement made on 23 February 2016 at 12:23pm

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 September 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, Mrs Lumpan Green, a 43 year old national of Thailand, applied for the visa on 15 May 2014 on the basis of her relationship with her sponsor, Mr Kim Edward Green, the review applicant, who is a 59 year old Australian citizen. At the time Mrs Green applied, 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. 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 Mrs Green did not satisfy cl.309.222 because r.1.20J imposed a limitation on the approval of sponsorship by Mr Green in circumstances where he had previously sponsored another person for a visa.   

4. There was no hearing in relation to Mr Green’s application for review.  In the circumstances of the case the Tribunal considers that it should decide the review in his favour on the basis of the material before it: see s 360(2)(a) of the Act.

5. Mr Green was represented in relation to the review by his registered migration agent.

6. Mr Green provided a copy of the relevant pages of the primary decision with the application for review.  It is recorded there that Mr Green previously sponsored another person for a Class TO Subclass 300 (Prospective Marriage) visa that was granted on 30 September 2010, and that the person was granted a Class UK Subclass 820 visa on 18 October 2011.  The relationship between Mr Green and that person broke down and she departed Australia.  The delegate noted that the visa grants were made less than five years before the date of the delegate’s decision, 25 September 2015.  The decision does not record the date on which the applications for those visas were made. 

7. The Department’s file contains material in support of the visa application.  That includes a copy of the relevant pages of Mrs Green’s Thai passport and Mr Green’s Australian passport, a copy of the divorce order relating to Mr Green and the person he previously sponsored (effective from 13 December 2013), and Mr Green’s and Mrs Green’s marriage certificate (dated 18 January 2014).  Mr Green submitted further documents to the Tribunal.  There was an untranslated copy of a document that Mr Green said in an undated letter to the Tribunal was a death certificate relating to the person he first sponsored.  There was also a letter of support dated 10 April 2015 written by Mr Green’s General Practitioner. 

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Are the sponsorship requirements met?

9. 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).

10. At the time of decision, the 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 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.

11. Under r.1.20J, a sponsor is limited to a total, in a lifetime, of two approved sponsorships or nominations that lead to a grant of a partner visa (or entry permit) or a visa (or entry permit) granted on the basis of the domestic violence provisions. If there has been one previous sponsorship or nomination, or if the sponsor was granted a visa or entry permit as a result of being sponsored, a period of five years must have passed since the date of the earlier visa application. These requirements apply unless the Minister, or the Tribunal on review, is satisfied there are compelling circumstances affecting the sponsor: r.1.20J(2).

12. On the basis of the material held on the Department’s file, including the sponsorship form completed by Mr Green on 3 May 2014 and Mr Green’s passport, the Tribunal finds that Mr Green is an Australian citizen aged over 18 years who is sponsoring Mrs Green.  Accordingly cl.309.213 is met.

13. The primary decision does not record the date on which the visa applicant whom Mr Green previously sponsored applied for the visas that she was granted.  Obviously, the application for the Class TO Subclass 300 visa granted on 30 September 2010 must have been made prior to that date.  Having general regard to the Regulations, the evident purpose of the Regulations, and a general reading of policy, the Tribunal considers that the date of application for the Class TO Subclass 300 is the relevant date.  Whatever the precise date of that application, the date is more than five years ago.  There is no evidence that Mr Green has ever sponsored any other person.  And there is no material before the Tribunal to indicate that r.1.20KA or r.1.20KB are relevant in this case. The proper basis for approving the sponsorship therefore exists.  Accordingly, cl.309.222 is met.  

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

15. 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

16. 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 of Schedule 2 to the Regulations

    ·cl.309.222 of Schedule 2 to the Regulations

    John Billings
    Senior Member