1806686 (Migration)

[2018] AATA 3722

1806686 (Migration) [2018] AATA 3722 (17 July 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1806686

MEMBER:Margie Bourke

DATE:17 July 2018

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

·reg 1.20J for the purposes of cl.309.222 of Schedule 2 to the Regulations.

Statement made on 17 July 2018 at 12:15pm

CATCHWORDS
Migration – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – Where more than one person has been granted the relevant permission from the sponsor – Whether there are compelling circumstances to not apply the requirements of r. 1.20J – Where the review applicant’s previous partner has passed away – Where the review applicant is of an advanced age – Compelling circumstances exist for waiving the requirement – Decision remitted with direction

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.20J, 1.20KA, 1.20KB, 1.20KC, 2.88E, Schedule 2, cls 309.213, 309.222

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

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 5 March 2018 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 28 October 2017 on the basis of her relationship with her 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. Relevantly to this matter the primary criteria include cl.309.213 and cl.309.222.

3. Initially the visa applicant applied for a Subclass 300 Prospective Marriage visa, which was lodged online on 28 April 2017. In a decision record dated 6 June 2017, the Department refused the application on the basis the visa applicant did not meet the sponsorship requirements in reg.1.20J, and there were no compelling circumstances to waive this requirement. Therefore the delegate in the decision record dated 6 June 2017 found the visa applicant did not meet the requirements of cl.300.222.

4. The review applicant applied for a review of this decision of the Department, and provided the tribunal with a marriage certificate. The tribunal, differently constituted, was satisfied that the review applicant and the visa applicant were married [in] October 2017 in Romania. The tribunal remitted the matter back to the Department on the basis that that the visa applicant met the requirements of r.2.88E, and the matter should now be considered as an application for a partner visa.

5. The Department reconsidered the application, and in the decision record dated 5 March 2018, the delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.309.222 because the application for the visa is subject to sponsorship limitations, and the delegate was not satisfied the sponsor’s circumstances were sufficiently compelling to waive the sponsorship limitations in r.1.20J.

6. The review applicant appeared before the Tribunal on 2 July 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant via [telephone], and from the review applicant’s daughter, [Ms A] who attended the hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether is whether the sponsorship limitations apply in this case, and if so, whether there are compelling circumstances affecting the sponsor for not applying the limitation requirements.

   SPONSORSHIP (cl.309.213)

   Are the sponsorship requirements met?

9. 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).

10. I have considered the application form lodged online on 28 April 2017, and the sponsorship details in the form.  I have considered the review applicant’s Australian passport, issued in 2016. I have considered the date of birth recorded in the review applicant’s Australian passport, and his medical records.  I have considered the evidence at the hearing. I am satisfied the review applicant is the sponsor of the visa applicant, at the time of application, and continues to be her sponsor at the time of decision. I am satisfied the review applicant is an Australian citizen. I am satisfied the review applicant is well over the age of 18 years, having been born in [a particular year].

11. For these reasons, I am satisfied the visa applicant meets the requirements of cl.309.213 at the time of application, and continues to meet this requirement at the time of decision.

12. 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.

13. The tribunal can only make findings as to whether the sponsorship should be approved, not whether it has been approved, in the matter under review. I am satisfied that the review applicant came to Australia before his wife and three children, and then sponsored his family to migrate and join him.

14. I accept as fact that the review applicant applied for his first wife [Ms B] and his three daughters to come to Australia in 1986, and the visas were granted and they arrived in 1988. I also accept as fact that [Ms B] was injured in an accident at work, and was confined to a wheelchair for three years, and then regained some limited mobility but was severely disabled and dependent upon her husband for over twelve years for her care until her death in 2006. 

15. I accept that the review applicant sponsored his second wife [Ms C] in January 2008.  The visa was granted in April 2008.  The couple divorced in 2016. I accept the evidence before me that the review applicant’s second wife [Ms C] returned to Romania. I also note in the Department decision record dated 5 March 2018 that [Ms C] was granted Australian citizenship.

16. I am satisfied, based on the evidence of the review applicant, and confirmed in the Department decision record dated 5 March 2018, (a copy of which was provided by the review applicant to the tribunal), that more than one other person has been granted a relevant permission as the spouse, de facto partner or prospective spouse of the sponsor, and therefore the review applicant does not meet the sponsorship limitations of r.1.20J(1)(a)(i). As the review applicant does not meet the sponsorship requirements of r.1.20J. the visa applicant’s sponsorship does not satisfy the requirements for the purposes of cl.309.222, unless there are compelling circumstances affecting the sponsor for not applying the requirements of r.1.20J.

    Compelling Circumstances Affecting the Sponsor

17. I accept the evidence of the review applicant’s daughter that her father cared for her mother after her accident when she suffered significant injuries and was left with disabilities for many years. I accept her evidence that her father was the only income for the household after her mother’s accident.  I accept that her father worked an afternoon shift, and as the eldest daughter, [Ms A] would have to run home from school at lunch time to change and feed her mother.  I accept her evidence that her father took responsibility for the care at other times.  I accept her mother had several operations, and her physical and mental state deteriorated over time. I accept that the review applicant was not aware of community services for some years, and received limited support when the family became aware of the ability to access outside support.  I accept her evidence that the three daughters married and left home, and the review applicant continued to care for their mother.

18. I accept the evidence of [Ms A] that she encouraged her father to travel overseas after her mother’s death.  I accept her evidence that the second marriage was not very successful, but she believes her father’s mental and physical health and quality of life will improve by having someone, a partner, in his life.

19. I accept the review applicant’s three daughters are all married, all working and all have two children. I accept one daughter lives interstate. I accept the review applicant wishes to stay in his own home, and attend his church.

20. I have considered the medical reports in relation to the review applicant, from [a] specialist dated 24 August 2017 and from his GP dated 23 August 2107.  I accept he is suffering [a medical condition], which is supervised by his doctor, and he receives [treatment] regularly from his specialist. I accept he is currently allowed to drive, but only during the day and for short distances. I have considered the recommendation from his GP, that the review applicant would benefit from the support of his partner. I have considered the evidence of the visa applicant that she wished to be with the review applicant and help him in every respect of his life.

21. I have considered the review applicant first applied to sponsor his wife [Ms B] in 1986, over thirty years before the current application. I have considered the years the review applicant attended to and cared for his disabled first wife. I have considered the evidence of his daughter [Ms A], and the medical evidence in relation to the review applicant at the time of this decision. I am satisfied that there are compelling circumstances affecting the sponsor that amount to sufficient reasons for not applying the sponsorship limitations in r.1.20J. For these reasons, I am satisfied that there are compelling circumstances affecting the sponsor for not applying the sponsorship limitations in r.1.20J for the purposes of cl.309.222.

22. On the evidence before the Tribunal the visa applicant meets the requirements of cl.309.213 and r.1.20J for the purposes of cl.309.222.

23. 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

24. 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

    ·reg.1.20J for the purposes of cl.309.222 of Schedule 2 to the Regulations.

    Margie Bourke
    Member