1820420 (Migration)

[2020] AATA 3988

1820420 (Migration) [2020] AATA 3988 (24 July 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1820420

MEMBER:P. Maishman

DATE:24 July 2020

PLACE OF DECISION:  Perth

DECISION:The Tribunal remits the application for a Prospective Marriage (Temporary) (Class TO) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 300 (Prospective Marriage) visa:

·cl.300.213 of Schedule 2 to the Regulations;

·Cl.300.222 of Schedule 2 to the Regulations.

Statement made on 24 July 2020 at 5:42pm

CATCHWORDS
MIGRATION – Prospective Marriage (Temporary) (Class TO) visa – Subclass 300 (Prospective Marriage) – whether the sponsorship requirements are met – applicant has reached the limit on sponsorship – compelling circumstances affecting the sponsor – previous relationships were genuine – not apply the sponsorship limitation– decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.20J; Schedule 2, cls 300.213, 300.222

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

1. This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the visa applicant a Prospective Marriage (Temporary) (Class TO) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant, [applied] for the visa on 25 June 2017 on the basis of her proposed marriage to the review [applicant]. At the time the visa application was lodged, Class TO contained only one subclass: Subclass 300 (Prospective Marriage). The criteria for a Subclass 300 visa are set out in Part 300 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. Relevantly to this matter the primary criteria include cl.300.213 and cl.300.222.

3. The delegate refused to grant the visa on 10 July 2018 on the basis that the visa applicant did not satisfy cl.300.222 of Schedule 2 to the Regulations because the delegate did not approve the review applicant’s sponsorship of the visa applicant.

4. The review applicant appeared before the Tribunal 6 April 2020 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

5. The review applicant was represented in relation to the review by his registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The Tribunal had before it a copy of the Department’s file containing the visa application, sponsorship form and evidence provided to the Department.

8. The review applicant gave the Tribunal a copy of the delegate’s decision. The Tribunal received written submissions from the review applicant’s representative on 6 April 2020 and 13 April 2020.

9. The delegate has not made an assessment of the primary criteria to be satisfied at the time of application. Having regard to the President’s Direction - Conducting Migration and Refugee Reviews the Tribunal will restrict its review to the matters decided by the delegate.

10. The issue in the present case is whether the sponsorship requirements are met.

    Is the visa applicant sponsored as required?

11. Clause 300.213 requires that at the time of application the visa applicant is sponsored by the review applicant, and that the review applicant has turned 18. The review applicant completed a sponsorship form that is held on the Department’s file. The Tribunal accepts the visa applicant is sponsored by the review applicant who is [age] years old, therefore, cl.300.213 is satisfied.

    Has the sponsorship been approved

12. Clause 300.222 requires that the sponsorship referred to in cl.300.213 has been approved and is still in force. Approval of sponsorship is subject to several limitations contained in the Regulations.

13. Relevantly, r.1.20J of the Regulations 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. Under r.1.20J, a sponsor is limited to a total, in a lifetime, of two approved sponsorships or nominations that lead to a grant of a partner visa (or entry permit). These requirements apply unless the Minister, or the Tribunal on review, is satisfied there are compelling circumstances affecting the sponsor: r.1.20J(2).

14. The expression ‘compelling circumstances’ is not defined in the legislation. The Tribunal must consider whether the circumstances are such that they evoke interest or attention in a powerfully irresistible way: Babicci v MIMIA [2004] FCA 1645 or are ‘so powerful that they lead the [Tribunal] to make a positive finding that the [provision] should be waived’: Babicci v MIMIA [2005] FCAFC 77.

15. Information before the Tribunal shows the review applicant previously sponsored two people who were granted partner visas, Ms [A] and Ms [B].

16. The review applicant gave evidence he married Ms [A] in Vietnam in 1973 and they have two children together. The review applicant escaped Vietnam in 1981 and was granted refugee status to settle in Australian. The review applicant then sponsored his wife and children for migration to Australia. His wife and children arrived in Australia in 1984 and after many years together they separated and ultimately divorced in 2002. The review applicant says he married Ms [A] prior to coming Australia and his relationship with her was genuine. He escaped Vietnam on his own because the journey was too dangerous for his wife and children.

17. The review applicant says he first met Ms [B] in Vietnam in 1994 and they had a child [together]. He remained married to Ms [A] until 2002 and did not sponsor Ms [B] for migration to Australia until 2003. The review applicant says he and Ms [B] divorced, after a 23 year relationship, in 2016.

18. The review applicant submits his sponsored relationships were genuine and that he did not set out to abuse the migration provisions.

19. The delegate’s decision record confirms Departmental records show both Ms [A] and Ms [B] were granted partner visas as a result of the review applicant’s sponsorships. Ms [A] was granted a visa in 1982 and Ms [B] was granted a visa in 2003.

20. The Tribunal finds the review applicant has reached the limit on sponsorship set out in r.120J and this regulation applies unless it is satisfied there are compelling circumstances affecting the sponsor.

21. Departmental policy contained in the procedures advice manual states in regard to  compelling circumstances:

    7.2  Compelling circumstances affecting the interests of the sponsor

    Under policy, compelling circumstances affecting the interests of the sponsor include instances where:

    ·the applicant and their sponsor have a dependent child who is dependent on each of them or

    ·the death of the previous partner or

    ·the previous spouse abandoning the sponsor and there are children dependent on the sponsor requiring care and support or

    ·the new relationship is longstanding.

    These examples are not exhaustive. The purpose of the sponsorship limitation is to prevent abuse of the partner/fiancé migration provisions and this should be kept in mind when deciding whether to exercise the waiver.

    Every aspect of the sponsor's circumstances is relevant to the existence of compelling circumstances. Although no definitive list can be given, some general aspects that may be particularly important are:

    ·the nature of the hardship/detriment that would be suffered (by the sponsor) if the sponsorship were not approved.

    ·the extent and importance of the ties the sponsor has to Australia, and the consequent hardship/detriment that would be suffered if the sponsorship were not approved and the sponsor were to feel compelled to leave Australia to maintain their relationship with the applicant.

22. The review applicant claims his close ties to Australia; the undue hardship he would suffer if the sponsorship were not approved; his health conditions; and his long-standing relationship with the visa applicant are compelling reasons not to apply the sponsorship limitation.

23. The review applicant arrived in Australia in 1981 and is an Australian citizen. His three children have grown up, been educated and continue to live in Australia. The review applicant has a grandchild who resides in Australia. His parents have passed away. The review applicant has a brother and sister remaining in Vietnam, who he visits every few years. The applicant is now retired and receives an Australian pension. He owns a property in Australia in which he lives. Prior to retiring he had an established business in partnership with his second wife. The review applicant does not have any close relatives, any assets, business or real property in Vietnam.

24. The review applicant is nearly [age] years old and has lived in Australia for 39 years. The review applicant says the acrimonious divorce from his second wife left him in despair and distress until he met the visa applicant and he could not have a happy life without her. The review applicant claims he is accustomed to the Australian way of life, the climate and the freedom he enjoys as an Australian citizen. He says he has lost everything after two marriage breakdowns. His children and grandchild live in Australia and it would be too hard for him to leave everything he hands and returned to Vietnam to live. The review applicant detests the regime in Vietnam and escaped as a political refugee in 1981. The review applicant submits he could not bear the emotional and psychological stress if he had to leave Australia which he had lived and loved for over 35 years and return to Vietnam.  

25. Evidence before the Tribunal indicates the review applicant suffers [Medical Condition 1]. A [medical] report from 2016 indicates he has [Medical Condition 1] and [specified] therapy is recommended. The review applicant says it would be of advantage to him to have the visa applicant by his side if he suffered [problems due to Medical Condition 1].

26. The review applicant claims his relationship with the visa applicant began in 2014. The delegate has suggested that the evidence submitted application is from 2016. Similarly, documentation provided to the Tribunal by the review applicant in support of his relationship is dated from early 2016. The review applicant gave the Tribunal a copy of an invoice from his lawyers in respect of his divorce from Ms [B]. The invoice refers to an application made to the Family Court of Western Australia in 2016. For the purposes of this decision only the Tribunal accepts the parties have been in a relationship since at least 2016.

27. Having regard to all the circumstances the Tribunal is satisfied that there are compelling circumstances affecting the sponsor, and the sponsorship can be approved despite the operation of r.1.20J(1). The Tribunal had regard to the purpose of the sponsorship limitation and notes the review applicant’s previous relationships were of long-standing. The Tribunal is satisfied the review applicant’s previous relationships were genuine and the sponsorships have not been made to take advantage of the partner migration program. In making this determination the Tribunal has placed weight on the parties’ long-standing relationship and the sponsor’s ties to Australia noting his children and grandchild live in Australia and that he has established his life and home in Australia for close to 40 years.

28. Having considered all these matters cumulatively and holistically, the Tribunal is satisfied there are compelling reasons affecting the sponsor to not apply the sponsorship limitation in the present case, for the purposes of cl.300.322.

29. The Tribunal is satisfied that there is no information before it that suggests that the sponsorship limitations of r.1.20K, r.1.20KA or r.1.20KB prevent approval.

30. As a result, the sponsorship is approved and the requirements of cl.300.222 are met.

31. 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 300 visa.

    DECISION

32. The Tribunal remits the application for a Prospective Marriage (Temporary) (Class TO) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 300 (Prospective Marriage) visa:

    ·cl.300.213 of Schedule 2 to the Regulations;

    ·Cl.300.222 of Schedule 2 to the Regulations.

    P. Maishman
    Member

    
    

    ATTACHMENT

    Reg 1.20J - Limitation on approval of sponsorships - spouse, partner, prospective marriage and interdependency visas

    (1AA) This regulation applies in relation to an application for:

    (a) a Spouse (Provisional) (Class UF) visa; or
    (b) a Partner (Provisional) (Class UF) visa; or
    (c) a Prospective Marriage (Temporary) (Class TO) visa; or
    (d) an Interdependency (Provisional) (Class UG) visa; or
    (e) an Extended Eligibility (Temporary) (Class TK) visa; or
    (f) a Partner (Temporary) (Class UK) visa.

    (1) Subject to subregulations (2) and (3), if a person applies for a visa mentioned in subregulation (1AA) as the spouse, de facto partner or prospective spouse of the sponsor, the Minister must 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 or 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; and
    (c) if the sponsor was granted a relevant permission as the spouse, de facto partner or prospective spouse of another person on the basis of a sponsorship or nomination — not less than 5 years has passed since the date of making the application for that relevant permission.

    (1A) In subregulation (1):
    relevant permission means:

    (a) in relation to an application for a visa referred to in subregulation (1AA) made during the period from 1 November 1996 to 30 June 1997 (inclusive) — a visa; and
    (b) in relation to an application for a visa referred to in subregulation (1AA) made on or after 1 July 1997 — permission (other than a visa or entry permit) granted under the Act to remain indefinitely in Australia, a visa or an entry permit.

    (2) Despite subregulation (1), the Minister may approve the sponsorship of an applicant for a visa if the Minister is satisfied that there are compelling circumstances affecting the sponsor.
    (3) Subject to subregulation (4), this regulation applies in relation to an application for a visa made on or after 1 November 1996.
    (4) This regulation does not apply in relation to an application by a person who:

    (a) was the holder of a Subclass 300 visa that was granted on the basis of an application for a Prospective Marriage (Temporary) (Class TO) visa that was made before 1 November 1996; and
    (b) has applied for an Extended Eligibility (Temporary) (Class TK) visa; and

    (c) is seeking to remain permanently in Australia on the basis of the person's marriage to the person who was specified as the intended spouse in the application that resulted in the grant of that Prospective Marriage (Temporary) (Class TO) visa.