1700695 (Migration) - [2019] AATA 3133

1700695 (Migration) [2019] AATA 3133 (20 May 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1700695
DIBP REFERENCE:  OSF2016/039123
MEMBER:Rosa Gagliardi
DATE:20 May 2019
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the applications for Partner (Provisional) (Class UF) visas for reconsideration, with the direction that the first named 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 20 May 2019 at 2:31pm

CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Spouse (Provisional)) – sponsorship limitation – sponsor previously sponsored two people – less than five years passed since last sponsorship nomination – compelling reasons to approve sponsorship – mental health issues – sponsor heavily relies on applicant – significant hardship suffered if sponsorship not approved – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), 65
Migration Regulations 1994 (Cth), rr 1.03, 1.20, Schedule 2, cls 309.213, 309.222

CASES
Babicci v MIMIA [2005] FCAFC 77
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 10 November 2016 to refuse to grant the visa applicants Partner (Provisional) (Class UF) visas under s.65 of the Migration Act 1958 (the Act).
The first named visa applicant (the visa applicant) applied for the visa on 6 January 2016 on the basis of their relationship with their 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.
The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.309.213 because her sponsor, Ms [A] (spouse) is subject to a sponsorship limitation and therefore cannot satisfy r.1.20J(1)(a) because the applicant had exceed the number of persons she can sponsor to Australia.
The review applicant appeared before the Tribunal on 17 May 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s daughter, Ms [B] well as from the applicant’s [niece].
The review applicant was represented in relation to the review by her registered migration agent. The representative attended the Tribunal hearing.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
SPONSORSHIP (cl.309.213)
Are the sponsorship requirements met?
Clause 309.213 requires that the visa applicant is sponsored by the review applicant, where such person…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading 1700695 (Migration)

Details

AGLC: 1700695 (Migration) [2019] AATA 3133
Case: [2019] AATA 3133
Decision Date: 20 May 2019

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered a Partner (Provisional) (Class UF) visa application, specifically a Subclass 309 (Spouse (Provisional)) visa. The applicant sought review of a decision concerning their eligibility, with the central issue revolving around the sponsor's limitations under migration regulations.

The Tribunal was required to determine whether the sponsorship requirements were met, particularly in light of Regulation 1.20J, which imposes limitations on the number of individuals a sponsor can nominate and mandates a minimum period between sponsorships. The Tribunal also had to consider whether compelling circumstances existed to override these limitations, as provided for in subregulation 1.20J(2).

The Tribunal found that the applicant met the basic sponsorship requirements under clause 309.213 and the consent requirements under clause 309.222. However, it noted that the sponsor had previously sponsored two other individuals, and less than five years had elapsed since the last sponsorship nomination, thus triggering the sponsorship limitation under Regulation 1.20J. Despite this, the Tribunal acknowledged evidence suggesting compelling circumstances, including the sponsor's mental health issues and significant reliance on the applicant, which would cause substantial hardship if the sponsorship were not approved.

Consequently, the Tribunal remitted the application for reconsideration by the Minister, directing that the applicant met the specified criteria for the Subclass 309 visa, allowing for further assessment of the compelling circumstances.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.CONSIDERATION OF CLAIMS AND EVIDENCESPONSORSHIP (cl.309.213)Are the sponsorship requirements met? 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). At the time of decision, this sponsorship must have been approved and still be in force. For visa applications made on or after 18 November 2016 the sponsor must also have consented for the Department to disclose to each sponsored applicant any conviction for a relevant offence, unless the conviction has been quashed or otherwise nullified, or where the sponsor has been pardoned with the effect that he or she is taken never to have been convicted of the offence: 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 and r.1.20KC in relation to sponsors convicted of a relevant offence who have a significant criminal record where the visa application was made on or after 18 November 2016. The Tribunal has no adverse information before it relating to the identity and age of the sponsor. Similarly, the evidence does not highlight any criminal activity by the sponsor. On the evidence the Tribunal is satisfied that the applicant meets cl.309.213.cl.309.222 Regulation 1.20J requires that the Minister not approve the sponsorship of the applicant unless the Minister is satisfied that:(a) not more than 1 other person has been granted a relevant permission as:(i) the spouse, de facto partner or prospective spouse of the sponsor on the basis of a sponsorship nomination; or(ii) a person who ceased a relationship of a kind mentioned in subparagraph (i) with the sponsor after the person, or another person mentioned in the prescribed criteria for the visa, had suffered family violence committed by the sponsor; and(b) if another person has been granted a relevant permission in the circumstances referred to in paragraph (a) – not less than 5 years has passed since the date of making the application for that relevant permission. In this case two other people have previously been granted a relevant permission as the spouse, de facto partner or prospective spouse of the sponsor on the basis of a sponsorship or nomination. Therefore the sponsor is affected by the sponsorship limitation set out in paragraph 1.20J(1)(a). Subregulation 1.20J(2) provides that, despite subregulation (1), the Minister may approve the sponsorship of an application for a visa if the Minister is satisfied that there are compelling circumstances affecting the sponsor.

Decision

Reasons for decision

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 The Tribunal remits the applications for Partner (Provisional) (Class UF) visas for reconsideration, with the direction that the first named 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. Rosa GagliardiMember

Ratio Decidendi

Legal Principle Established

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