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

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).
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.
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.
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.
The review applicant was represented in relation to the review by his registered migration agent.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The Tribunal had before it a copy of the Department’s file containing the visa application, sponsorship form and evidence provided to the Department.
The review applicant gave the Tribunal a copy of the delegate’s decision. The Tribunal received written submissions…

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 1820420 (Migration)

Details

AGLC: 1820420 (Migration) [2020] AATA 3988
Case: [2020] AATA 3988
Decision Date: 24 July 2020

CaseChat Overview and Summary

This matter concerned an application for a Prospective Marriage (Temporary) (Class TO) visa, subclass 300. The review applicant was the sponsor, and the dispute centred on whether the sponsorship requirements were met, specifically concerning limitations on the number of times a person can sponsor a partner visa. The Tribunal was tasked with determining if the sponsorship limitation under regulation 1.20J of the Migration Regulations 1994 should be waived due to compelling circumstances.

The legal issues before the Tribunal were whether the visa applicant was sponsored as required by clause 300.213, and whether the sponsorship, as referred to in clause 300.222, had been approved and remained in force, considering the limitations imposed by regulation 1.20J. Regulation 1.20J restricts a sponsor to a lifetime total of two approved sponsorships or nominations that lead to the grant of a partner visa, unless compelling circumstances affecting the sponsor exist. The Tribunal was required to assess if the sponsor's previous sponsorships, which resulted in partner visas being granted to two individuals, were genuine and if the circumstances surrounding these previous relationships constituted compelling reasons to depart from the sponsorship limitation.

The Tribunal found that the visa applicant was sponsored by the review applicant, who met the age requirement under clause 300.213. However, the Tribunal noted that the review applicant had previously sponsored two individuals, Ms [A] and Ms [B], who were granted partner visas. The review applicant provided evidence that his marriage to Ms [A] in Vietnam in 1973 was genuine, that they had two children, and that he escaped Vietnam alone due to the dangers of the journey for his family. His wife and children later migrated to Australia in 1984, and he divorced Ms [A] in 2002. The Tribunal considered the meaning of "compelling circumstances" as explained in *Babicci v MIMIA*, requiring circumstances that evoke interest or attention in a powerfully irresistible way or are so powerful as to lead to a positive finding that the provision should be waived.

Given the findings, the Tribunal remitted the application for reconsideration. The Tribunal directed that the visa applicant met the criteria under cl.300.213 and cl.300.222 of Schedule 2 to the Regulations, implying that the sponsorship limitation was either met or waived due to compelling circumstances, and that the Minister should consider the remaining criteria for the visa.

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 EVIDENCE The Tribunal had before it a copy of the Department’s file containing the visa application, sponsorship form and evidence provided to the Department. 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. 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. The issue in the present case is whether the sponsorship requirements are met.Is the visa applicant sponsored as required? 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 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. 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). 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. Information before the Tribunal shows the review applicant previously sponsored two people who were granted partner visas, Ms [A] and Ms [B]. 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.

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 300 visa.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. P. MaishmanMemberATTACHMENT 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.

Ratio Decidendi

Legal Principle Established

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