1725063 (Migration)

[2019] AATA 2766

1725063 (Migration) [2019] AATA 2766 (12 February 2019)

DECISION RECORD

DIVISION:  Migration & Refugee Division

CASE NUMBER:  1725063

MEMBER:  Michael Judd

DATE AND TIME OF

ORAL DECISION AND REASONS:          12 February 2019 at 10:10 am (WA time)

DATE OF WRITTEN RECORD:               29 March 2019

PLACE OF DECISION:  Perth

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

·     cl. 820.211(2) of Schedule 2 to the regulations

Statement made on 29 March 2019 at 4:11pm

CATCHWORDS
MIGRATION – Partner Temporary) (Class UK) visa – Subclass 820 (Partner) (Temporary) – sponsorship limitation – relationship with previous partner ceased before visa approval – five year limitation expired – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss

Migration Regulations 1994, Schedule 2, cl 820.211(2), rr 1.20J, 1.20KA, 1.20KB

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.

APPLICATION FOR REVIEW

ORAL DECISION OF MEMBER JUDD  [10.08 am]

MEMBER: This is the decision of the Tribunal in relation to an application by [Applicant 1] and [Applicant 2]. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicants partner (temporary) (class UK) visas under section 65 of the Migration Act. The first named applicant applied for the visa on 6 October 2015 on the basis of her relationship with her sponsor.

At that time, class UK contained only one sub-class, sub-class 820 (partner). The criteria for the grant of the visa are set out in part 820 of schedule 2 to the regulations. The primary criteria must be satisfied by at least one applicant. Other members of the family unit, including the second applicant, the applicant's daughter, need satisfy only the secondary criteria. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy clause 820.211(2).

Clause 820.211 requires, at the time of application, the applicant meets one of several alternative sub-criteria. These include clause 820.211(2) which requires that the applicant was, at the time of application, sponsored by the sponsor who is, in this case, an Australian citizen. 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 as still in force.

Approval of sponsorship is subject to limitations and they are contained in regulation 1.20J of the regulations and they set a limit on the number of people that a person can sponsor in a lifetime and a minimum time that must elapse between each sponsorship. Under regulation 1.20J, sponsorship of an applicant for a partner visa must not be approved unless, in this case, the Tribunal is satisfied the sponsor has not sponsored more than one person who was granted a partner visa as a result of sponsorship by the sponsor and at least five years have passed since the date of making an earlier successful visa application in which the sponsor previously sponsored another person as their spouse, defacto partner or prospective spouse.

This means, in general, that a maximum of two different persons can be sponsored by the same sponsor and five years must pass between any two sponsorships. However, the minister or Tribunal on review may approve the sponsorship if there are compelling circumstances that affect the sponsor and this applies irrespective of whether a person has already entered into two approved sponsorships or has attempted to sponsor a person within the prescribed five year time period.

It is helpful to outline the background to the earlier sponsorship. In a letter to the department, the sponsor described how he had previously submitted a prospective marriage sponsorship and he wrote to the department that he was a little naïve about the process. He had previously submitted the prospective marriage sponsorship on 10 February 2014. The relationship between himself and his previous fiancée broke down prior to the approval of the application.

He tried to cancel the visa, however, he was unsuccessful. His ex-fiancée never returned to Australia and they were never married. That sets out the background to the earlier sponsorship. In relation to the five year limitation period, I make the following observations. In the case of limitations under regulation 1.20J, the five year period is calculated from the date the earlier visa application was made until the time of decision and the time of decision in this case is this Tribunal's decision.

The Tribunal notes that the five years from the date of the application for the original sponsorship expired two days ago. What this means is that two days ago, on 10 February 2019, the five year limitation expired. In the circumstances, just bear with me, the Tribunal finds that the provisions of regulation 1.20J have been satisfied as at the time of the Tribunal's decision, being today, 12 February 2019, and that the sponsorship limitations that were in place and were previously restricted to regulation 1.20J(1)(b) no longer apply.

Whilst the issue did not arise during the hearing, it was a matter that was identified by the Tribunal subsequent to the hearing of evidence, so the effect of what I have found is that the sponsorship limitation no longer applies to your situation. The Tribunal is satisfied that at the time of this decision, regulation 1.20J(1)(b) is met. There is nothing for the Tribunal to suggest that the sponsorship limitations in regulations 1.20KA and regulation 1.20KB apply.

As such, the Tribunal approves the sponsorship referred to in clause 820.211(2)(c). The Tribunal finds that the visa applicant meets clause 820.211. Given these findings, the appropriate course is to remit the application.

INTERPRETER: Sorry?

MEMBER: The appropriate course, excuse me, is to remit the application for the visa to the minister to consider the remaining criteria for a sub-class 820 visa. Decision, the Tribunal remits the application for a partner (temporary) (class UK) visa with a direction that the applicant meets the following criteria for a sub-class 820 partner (temporary) visa, and they are clause 820.211(2)(c) of schedule 2 to the regulations and clause 820.222 of schedule 2 to the regulations.  That is the decision.

END OF ORAL DECISION  [10.32 am]