1509498 (Migration)

[2016] AATA 4493

1509498 (Migration) [2016] AATA 4493 (6 October 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Amanda Madala Twani

VISA APPLICANT:  Mr Clement Muronzi

CASE NUMBER:  1509498

DIBP REFERENCE(S):  OSF2015/046022

MEMBER:Di Hubble

DATE:6 October 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; and

·cl.309.222 of Schedule 2 to the Regulations.

Statement made on 06 October 2016 at 11:42am

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 4 June 2015 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 23 February 2015 on the basis of his relationship with his 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).

3. The delegate refused to grant the visa on the basis that the visa applicant did not meet the sponsorship requirements in r.1.20J for the purposes of cl.309.222.  Specifically, it was less than 5 years since the sponsor was herself sponsored under spouse migration and the visa applicant had not provided any details of compelling circumstances affecting the sponsor that justified waiving the sponsorship limitation.

4. The review applicant sought review of the delegate’s decision on 15 July 2015.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Are the sponsorship requirements met?

5. 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).

6. The visa applicant is sponsored by the review applicant who has turned 18 and is an Australian citizen.  Therefore, the requirements of cl.309.213 are met.

7. 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.

8. Under r.1.20J a sponsor is limited to a total, in a lifetime, of 2 approved sponsorships or nominations that lead to the 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 1 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. The Department’s file indicates that the review applicant lodged her own application for a Partner visa on 22 February 2011.  As more than 5 years have since passed, the 5 year sponsorship limitation period has ceased.  Accordingly, r.1.20J(1)(c) is now met and the sponsorship should be approved.

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

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 (Partner (Provisional)) visa:

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

    ·cl.309.222 of Schedule 2 to the Regulations.

    Di Hubble
    Member