1820782 (Migration) - [2021] AATA 4974

1820782 (Migration) [2021] AATA 4974 (2 December 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1820782
MEMBER:Margie Bourke
DATE:2 December 2021
PLACE OF DECISION: Melbourne
DECISION:The Tribunal remits the applications for Partner (Temporary) (Class UK) visas, with the direction that the first named applicant meets the following criteria for a Subclass 820 (Partner) visa:
·cl 820,211(2)(c) and cl.820.221(4) of Schedule 2 to the Regulations; and

The Tribunal remits the applications for Partner (Temporary) (Class UK) visas, with the direction that the second named applicant meets the following criteria for a Subclass 820 (Partner) visa:
·cl 820.311(a) of Schedule 2 to the Regulations.

Statement made on 02 December 2021 at 8:34am
CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – sponsorship limitation – two previous sponsorships – compelling circumstances – no ongoing contact between applicant and former wife, who arrived on visitor visa one month after and remained unlawfully – sponsor’s mental health and treatment – previous gambling addiction and imprisonment – visa applicant’s support and child’s mutual and strong relationship with sponsor – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 65, 395AA
Migration Regulations 1994 (Cth), rr 1.20J(a)(i), (c), Schedule 2, cls 820.211(2)(c), 820.311(a)
CASE
Babicci v MIMIA [2004] FCA 1645; [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 Home Affairs to refuse to grant the applicants Partner (Temporary) (Class UK) visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The first named applicant applied for the visa on 15 August 2017 on the basis of his relationship with his sponsor. The second named applicant is the child of the first named applicant, and was born in [Year]. 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 (Cth) (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 first named visa applicant did not satisfy cl 820.211(2)(c) because the applicant did not meet the sponsorship requirements of r.1.20J. The delegate assessed the second named visa applicant against the primary criteria, and concluded the second named visa applicant did not meet the requirements of cl.820.211(2).
The Tribunal had regard to its objectives and obligations to provide a mechanism for review that is fair, just, economical, informal and quick. The Tribunal had regard to the circumstances of the review applicants and the nature of the review. The…

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 1820782 (Migration)

Details

AGLC: 1820782 (Migration) [2021] AATA 4974
Case: [2021] AATA 4974
Decision Date: 2 December 2021

CaseChat Overview and Summary

This matter concerned an appeal before the Tribunal regarding a Partner (Temporary) (Class UK) visa, Subclass 820. The applicant sought review of a decision that impacted their eligibility for the visa, specifically concerning sponsorship limitations. The core of the dispute revolved around the sponsor's history of previous sponsorships and whether compelling circumstances existed to overcome these limitations.

The legal issues before the Tribunal included whether the applicant met the sponsorship requirements under clause 820.211(2)(c) and 820.221(4) of Schedule 2 to the Regulations, and whether the limitations on further sponsorships under regulation 1.20J of the Regulations applied. The Tribunal was required to consider the sponsor's previous sponsorships and determine if any exceptions or compelling circumstances warranted overriding these limitations.

The Tribunal found that the applicant met the sponsorship requirements under clause 820.211(2)(c) at the time of application, and that the sponsor was an Australian citizen. However, the Tribunal noted that the sponsor had previously sponsored two individuals, triggering the limitations on further sponsorships under regulation 1.20J. Despite these limitations, the Tribunal concluded that the matter should be remitted for reconsideration by the Minister, indicating that the circumstances warranted further assessment of the remaining visa criteria. The Tribunal directed that the first named applicant met the specified sponsorship criteria, and the second named applicant met criterion cl 820.311(a).

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 EVIDENCESPONSORSHIP (cl 820.211(2)(c), cl.820.221(4)Is the applicant sponsored? Clause 820.211 requires at the time of application, the applicant meets one of several alternative sub criteria. These include 820.211(2)(c) which requires that the applicant was, at the time of application, sponsored by the sponsor, where such person has turned 18; or where they have not, by the sponsor’s parent or guardian who has turned 18 and is either an Australian citizen, permanent resident or eligible New Zealand citizen (as defined in reg 1.03 of the Regulations). I am satisfied that the sponsor is 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 and be still in force. Exceptions apply in certain circumstances where the sponsor has died, or family violence has occurred, or a child is involved. For visa applications made on or after 18 November 2016, the sponsor must also have consented for the Department to disclose to each 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 820.221. Approval of sponsorship is subject to limitations contained in reg 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 reg 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 reg 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 reg 1.20KC for sponsors convicted of a relevant offence who have a significant criminal record in relation to the relevant offence where the visa application was made on or after 18 November 2016. I have considered the identity documents provided by the applicants, including the first named applicant’s Vietnamese passport. I am satisfied that the first named applicant is over the age of 18 years. I have considered the sponsorship form lodged online by the sponsor on 16 August 2017. I am satisfied that both applicants are sponsored by the first named applicant spouse who has turned 18. I am satisfied that the first named applicant meets the sponsorship requirements of cl.820.211(2)(c) at the time of application. In the Department’s decision record dated 3 July 2018, a copy of which was provided to the Tribunal by the applicants it is recorded that the sponsor had previously sponsored two persons who had been granted relevant visas as either her spouse, partner or prospective spouse or partner, and for this reason the limitations on further sponsorships under r.1.20J apply in this review.

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 820 visa.DECISION The Tribunal remits the applications for Partner (Temporary) (Class UK) visas, with the direction that the first named applicant meets the following criteria for a Subclass 820 (Partner) visa:·cl 820.211(2)(c) and cl.820.221(4) of Schedule 2 to the Regulations; andThe Tribunal remits the applications for Partner (Temporary) (Class UK) visas, with the direction that the second named applicant meets the following criteria for a Subclass 820 (Partner) visa:·cl 820.311(a) of Schedule 2 to the Regulations.Margie BourkeMember

Ratio Decidendi

Legal Principle Established

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