1421102 (Migration)

[2015] AATA 3068

1421102 (Migration) [2015] AATA 3068 (7 July 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Orajin Trakunwanitchai
Miss Pichipa Saeung

CASE NUMBER:  1421102

DIBP REFERENCE(S):  CLF2013/251147

MEMBER:Suzanne Carlton

DATE:7 July 2015

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal remits the applications for Partner (Temporary) (Class UK) visas, with the direction that the first-named applicant meets the following criteria for a Subclass 820 (Partner (Temporary)) visa:

·cl.820.211 of Schedule 2 to the Regulations; and

·cl.820.221 of Schedule 2 to the Regulations; and

that the second-named applicant meets the following criteria for a Subclass 820 (Partner (Temporary)) visa:

·cl.820.311 of Schedule 2 to the Regulations.

Statement made on 07 July 2015 at 4:06pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision of a delegate of the Minister for Immigration on 9 December 2014 to refuse to grant the applicants Partner (Temporary) (Class UK) visas under s.65 of the Migration Act 1958 (the Act).

2. The first named applicant (the applicant) applied for the visa on 14 October 2013 on the basis of her relationship with her sponsor. At that time, Class UK contained only one subclass: Subclass 820 (Partner (Temporary)). The criteria for the grant of this visa are set out in Part 820 of Schedule 2 to the Migration Regulations 1994 (the Regulations).

3. 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.

4. The delegate refused to grant the visa, stating that the applicant did not meet cl.820.221 because the sponsor was subject to a sponsorship limitation contained in r.1.20J(1)(d) and the delegate found no compelling circumstances to justify waiving that limitation.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in the present case is whether the sponsorship limitation period is applicable such as to prevent approval of the sponsorship of this subclass 309 Partner visa. If the limitation period is applicable, are there compelling circumstances such that the sponsorship should be approved.

   Background

7. The review applicant, Ms Trakunwanitchai applied for the visa, sponsored by her Australian citizen partner, Mr Stephen Boggiano. Mr Boggiano advised in his sponsorship application that he had previously sponsored someone for a partner visa on 9 February 2010 and that visa was granted on 23 June 2010.  They apparently never married and that visa holder apparently never entered Australia as the holder of that visa. 

8. The review applicant and the sponsor claim to have married on 4 October 2013. 

   Is the applicant sponsored?

9. Clause 820.211 requires at the time of application, the applicant meets one of several alternative sub criteria. These include 820.211(2)(c) which requires that the applicant was, at the time of application, sponsored by the sponsor, where such person has turned 18; or where they have not, by the sponsor’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. I find that at the time of application, Mr Boggiano is over 18 years of age and is an Australian citizen[1] and has sponsored the review applicant and her daughter.[2]  I determine that clause 820.211 is satisfied.  I reach that conclusion on the basis that the visa applicant claims to be married to the review applicant.[3] I have not made any finding as to the legal status of the relationship.[4]

    [1] On the basis of the copy of his passport provided at folio 146 of the departmental file.

    [2] On the basis of the form 40SP sponsorship application at folio 33 of the departmental file.

    [3] Folio 12 of the departmental file.

    [4] See discussion at paragraphs … of these reasons of decision.

11. At the time of decision, the applicant must continue to be sponsored by the sponsor, and the sponsorship must have been approved by the Minister and be still in force. Exceptions apply in certain circumstances where the sponsor has died, or family violence has occurred, or a child is involved: cl.820.221.

12. Approval of sponsorship is subject to limitations, including those 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 sets a minimum time that must lapse between each sponsorship.

13. At the time of the delegate’s decision in respect of the visa application by Ms Trakunwanitchai, the time which had elapsed between the date of making the application previously sponsored by Mr Boggiano and this visa application was less than five years. At the time of the decision by the Tribunal, more than five years has elapsed. Consequently, at the time of decision, there is no limitation issue in Regulation 1.20J, which precludes the approval of the sponsorship.

14. Mr Boggiano has provided evidence that he has not been charged with any criminal offence and has not sponsored any other visa applicant apart from the February 2010 sponsorship. Based on the information in his sponsorship application, together with the oral evidence, I am satisfied that sponsorship undertakings have been made in relation to matters required by r.1.20 and that there is no limitation currently in existence precluding approval of the sponsorship.

15. Consequently, I approve the sponsorship. Clause cl.820.221 is satisfied.

16. On the evidence before the Tribunal the requirements of cl.820.211 and cl.820.221 are met.

    Clause 820.211-determination of “spouse”/ “de facto partner”

17. In this case I have not proceeded to consider and make a determination as to whether the applicant is the “spouse” or “de facto partner” of Mr Boggiano, an Australian citizen, as is required to be established at the time of application (cl.820.211). I have not proceeded to do so because the delegate determined the matter by reference only to cl.820.221.

18. 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 820 visa.

    Clause 820.311-determination as to the secondary applicant

19. Based on the evidence before me, I am satisfied that the second-named application is a dependent child of Ms Trakunwanitchai, the first-named applicant, who has applied for a subclass 820 visa.  She is covered by the sponsorship. She therefore meets cl.820.311.

    DECISION

20. The Tribunal remits the applications for Partner (Temporary) (Class UK) visas, with the direction that the first-named applicant meets the following criteria for a Subclass 820 (Partner (Temporary)) visa:

    ·cl.820.211 of Schedule 2 to the Regulations;

    ·cl.820.221 of Schedule 2 to the Regulations; and

    that the second-named applicant meets the following criteria for a Subclass 820 (Partner (Temporary)) visa:

    ·cl.820.311 of Schedule 2 to the Regulations.

    Suzanne Carlton
    Member