1726920 (Migration) - [2020] AATA 1519

1726920 (Migration) [2020] AATA 1519 (13 February 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division
CASE NUMBER: 1726920
MEMBER:Linda Holub
DATE:13 February 2020
PLACE OF DECISION: Sydney
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) visa:
·cl.820.211(2)(c) of Schedule 2 to the Regulations

Statement made on 13 February 2020 at 4:25pm

CATCHWORDS

MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Spouse) – sponsorship limitation – sponsor of two previous successful Partner applications – compelling circumstances affecting the sponsor – separation from two previous wives – long term relationship – applicant’s studies in Aged Care Nursing – impact on the sponsor’s dependent son – custody arrangements for the sponsor’s son – decision under review remitted

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 820.211, 820.221; r 1.20J

CASES

Babicci v MIMIA [2004] FCA 1645
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 and Border Protection to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s.65 of the Migration Act 1958 (the Act).
The applicant applied for the visa on 16 March 2015 on the basis of her relationship with her sponsor. At that time, Class UK contained only one subclass: Subclass 820 (Partner). 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.
The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.820.221(4) because having considered the totality of the applicant’s circumstances, including the length and extent of her relationship with her sponsor, was not satisfied that there are compelling circumstances affecting the sponsor and was not satisfied that there are compelling circumstances affecting the sponsor which would justify not applying the sponsorship limitations requirement.
The applicant appeared before the Tribunal on 3 February 2020 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

BACKGROUND

The applicant first came to Australia on a [temporary visa]. Between [November] 2013 and [January] 2015 she entered Australia several times as the holder of such a visa. She applied for a Partner visa on 16 March 2015 on…

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.

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Details

AGLC: 1726920 (Migration) [2020] AATA 1519
Case: [2020] AATA 1519
Decision Date: 13 February 2020

CaseChat Overview and Summary

The Administrative Appeals Tribunal (AAT) considered an application for review of a decision concerning a Partner (Temporary) (Class UK) visa, Subclass 820. The applicant sought to have the refusal of their visa application set aside. The core of the dispute revolved around the sponsor's eligibility, specifically a sponsorship limitation arising from the sponsor having supported two previous successful Partner visa applications. The applicant contended that compelling circumstances existed to overcome this limitation.

The Tribunal was required to determine whether the sponsor's circumstances met the threshold for compelling reasons to waive the sponsorship limitation. This involved assessing the evidence presented regarding the sponsor's previous relationships, the nature and duration of the current relationship with the applicant, and the potential impact of the visa refusal on the sponsor's dependent son, including existing custody arrangements.

In its reasoning, the Tribunal acknowledged the general policy against multiple sponsorships but recognised that exceptions could be made in compelling circumstances. The Tribunal found that the sponsor's separation from his two previous wives, the long-term nature of his current relationship with the applicant, the applicant's pursuit of studies in Aged Care Nursing, and the potential disruption to the sponsor's dependent son's life and custody arrangements constituted compelling circumstances. Consequently, the Tribunal remitted the decision to the delegate for reconsideration.

Orders