1503617 (Migration)

[2016] AATA 3343

1503617 (Migration) [2016] AATA 3343 (22 February 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Kim Jennings

CASE NUMBER:  1503617

DIBP REFERENCE(S):  CLF2014/44313

MEMBER:Amanda Goodier

DATE:22 February 2016

PLACE OF DECISION:  Perth

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

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

·cl.820.221(4) of Schedule 2 to the Regulations.

Statement made on 22 February 2016 at 1:58pm

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 26 February 2015 to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 17 March 2014 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). 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.

3. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.820.221(4) because the sponsor was subjected to sponsorship limitations as set out in reg.1.20J and there were no compelling circumstances affecting the sponsor to justify the waiver of that limitation.

4. In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the visa applicant on the basis of the material before it, pursuant to section 360(2)(a) of the Act. The applicant was represented in relation to the review by his registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Is the applicant sponsored?

6. 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).

7. 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. 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.

8. Regulation 1.20J of the Regulations 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. 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 5 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).

9. According to the evidence on the departmental file, the sponsor was born on 14 November 1975 in Indonesia.  A copy of the sponsor’s Australian visa was also provided.  On the basis of this evidence the Tribunal finds that the sponsor is over 18 and an Australian permanent resident. His sponsorship form on the Department’s file indicates that he has sought to sponsor the visa applicant.  Accordingly cl.820.211(2)( c ) is met.

10. The evidence is that at the time the applicant lodged this application, the sponsor was subject to sponsorship limitations as a result of himself being sponsored for a partner visa subclass 820/801 visa application lodged on 23 August 2010. 

11. The evidence before the Tribunal indicates that at the time of this decision, five years have passed since the sponsor’s application for a partner visa was lodged. 

12. Given that five years have passed since the lodgement of the sponsor’s application for a partner visa, the sponsor is no longer prevented by Regulation 1.20J from sponsoring the applicant. 

13. On the evidence before the Tribunal the requirements of cl.820.211(2)(c) and cl.820.221(4) are met.

14. 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.

    DECISION

15. The Tribunal remits the application for a Partner (Temporary) (Class UK) visa, with the direction that the applicant meets the following criteria for a Subclass 820 (Partner (Temporary)) visa:

    ·cl.820.211(2)(c ) of Schedule 2 to the Regulations

    ·cl.820.221(4) of Schedule 2 to the Regulations.

    Amanda Goodier
    Member