1822072 (Migration)

[2021] AATA 5458

1822072 (Migration) [2021] AATA 5458 (7 December 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1822072

MEMBER:Margie Bourke

DATE:7 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 07 December 2021 at 11:18am

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 – sponsorship obligations – sponsor has been convicted of relevant offences – significant criminal record – sponsor completed his sentence 17 years ago – best interests of the child – commitment to his parents – applicant and sponsor have been in a long-term relationship – approval of the sponsorship – decision under review remitted

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, rr 1.03, 1.20, Schedule 2, cls 820.211, 820.311

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 Home Affairs to refuse to grant the applicants Partner (Temporary) (Class UK) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The first named applicant applied for the visa on 9 November 2017 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 (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.

3. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl 820.211(2)(c) because the delegate found that r.1.20KC applied to the sponsorship and the sponsorship had not been approved. The delegate then assessed the secondary visa applicant against the primary criteria, and concluded the secondary visa applicant did not meet the requirements of cl.820.211(2).

4. The Tribunal considered its objectives to provide a mechanism for review that is fair, just, economical, informal and quick. The Tribunal considered the circumstances of the applicants and the nature of the review. The Tribunal considered the time that had expired since the applicants applied for review, and the restrictions on the availability of in-person hearings due to the pandemic. The Tribunal considered this review did not involve an extensive amount of paperwork to be put to the first named applicant during the course of the hearing. The Tribunal considered that the hearing in this matter could appropriately be conducted by way of video, which would allow the first named applicant a fair opportunity to give evidence and present arguments, and would allow the Tribunal to conduct a fair and effective hearing and enable the Tribunal to properly assess the evidence before it. For the above reasons the first named applicant was invited to attend a hearing by way of video.

5. The first named review applicant appeared before the Tribunal by video on 30 November 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor who appeared by video with the first named applicant. The second named applicant, who is a child aged [age] did not attend the hearing. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

6. The applicants were represented in relation to the review by their registered migration agent. The representative attended the Tribunal hearing by video with the first named applicant and the sponsor.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   SPONSORSHIP (cl 820.211(2)(c), cl.820.221(4))

   Is the applicant sponsored?

8. 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).

9. The Tribunal has considered the sponsorship and application forms, and the identity documents in relation to the sponsor which record his date of birth. The Tribunal is satisfied that the sponsor is an Australian permanent resident, aged over the age of 18. The Tribunal is satisfied that the applicants were sponsored by the sponsor, recorded as the spouse of the first named applicant, at the time of application.

10. Accordingly the Tribunal is satisfied that the first named applicant meets the requirements of cl.820.211(2)(c) at the time of application.

11. 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.

12. 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.

13. In this review, as recorded by the delegate in the Department’s decision record dated 17 July 2018, (a copy of which was provided to the Tribunal by the applicants) the issue is the application of r.1.20KC.

14. Regulation 1.20KC provides that the sponsorship of each applicant for a Partner or Prospective Marriage visa must be refused if the sponsor has been convicted of a ‘relevant offence’ and has a ‘significant criminal record’ in relation to it. A ‘relevant offence’ is defined in r.1.20KC(2) as an offence against a law of the Commonwealth, a State, a Territory or a foreign country, involving matters such as violence, harassment, breaches of apprehended violence orders, weapons, people smuggling, human trafficking, ancillary offences, and attempts to commit offences involving such matters. Regulation 1.20KD provides that a ‘significant criminal record’ includes being sentenced to death, life imprisonment, imprisonment of 12 or more months, or 2 or more terms of imprisonment totalling 12 months or more, in relation to a relevant offence or offences. A sentence or conviction for a relevant offence must be disregarded if the conviction has been nullified or the sponsor has been pardoned so that they are taken to have never been convicted of that offence: r.1.20KD(5).

15. The sponsorship may nevertheless be approved if it is reasonable to do so, having regard to matters including the length of time since the sponsor completed the sentence, the best interests of any children of the sponsor or primary applicant, and the length of the relationship between the sponsor and the primary applicant: r.1.20KC(4).

16. Approval of the sponsorship may also be refused if the Minister (or Tribunal on review) has requested a police check from the sponsor under r.1.20KC(5) and the sponsor does not provide the police check within a reasonable time: r.1.20KC(6).

17. The first named applicant provided documents to the Tribunal which confirm on [date], the sponsor was sentenced in [Court 1], in relation to charges [details deleted], to a total sentence of [number of years]. The Tribunal is satisfied that the sponsor has been convicted of relevant offences, and has a significant criminal record for the purposes of r.1.20KC. As stated above if the sponsor has been convicted of a relevant offence, and has a significant criminal record, that person’s  sponsorship must be refused under the provisions of r.1.20KC. However the sponsorship may be approved pursuant to r.1.20KC(4) if it is reasonable to do so.

18. The Tribunal has considered the evidence before it and is satisfied of the following facts. The sponsor was released from custody on parole on [date] and his sentence was completed on [date]. I am satisfied that the sponsor completed his sentence [number] years ago.

19. I am satisfied that the first named applicant and sponsor were married in Shanghai [in] April 2012 and have a [daughter] who was born in [year], who is the second named applicant in this review. I have considered the reports, letters from friends, statutory declarations, photographs and other information provided to the Tribunal and I am satisfied that it is in the best interests of the child of the first named applicant and the sponsor, to remain with both her parents, in her current school and community. I am satisfied it is in the best interests of the child that the sponsorship be approved.

20. I am satisfied based on the evidence before me that the first named applicant and sponsor have been in a spousal relationship for 9 ½ years. I am satisfied that the relationship between the first named applicant in the sponsor is of long-standing. I accept that the spousal relationship of the first named applicant and the sponsor has endured despite their commitments in different countries and the difficulty in the visa process. I have considered the statements and medical reports provided to the Tribunal by the first named applicant. I accept the sponsor is the only child of his Australian resident parents, I accept his father is currently gravely ill, and the sponsor has recently been appointed as the full-time carer of his father. I accept that because of commitment to his parents and his father’s serious ill health, the sponsor would find it very difficult to leave Australia if the sponsorship is not approved.

21. The sponsor gave evidence that he had recently been charged with an offence of driving while suspended. The charge was found proved but he was not convicted in the Magistrates’ Court. I am satisfied that the offence arose when the sponsor’s licence was suspended due to demerit points incurred, and the sponsor was not aware of the suspension due to his omission to advise VicRoads of his change of address. The applicant provided the Tribunal with a copy of the sponsor’s AFP National Police certificate dated [date] November 2021 in the name of [name], which records disclosable court outcomes.  The AFP certificate did not record the traffic offence, and noted the last court offence was in [year], which recorded a breach of suspended sentence, as a consequence of the convictions in [year]. I am satisfied based on the police certificate and the police record of convictions of the sponsor, that (excluding the traffic offence) the sponsor has not committed an offence since [year].  I am satisfied based on the current police record provided to the Tribunal by the first named applicant, that the sponsor has not been convicted of a criminal offence since his release on parole in [year].

22. I have considered the relevant matters as to whether the sponsorship in this review should be approved. I am satisfied that the sponsor completed his sentence over [number] years ago. I am satisfied that the approval of the sponsorship is in the best interest of the child of the first named applicant and the sponsor. I am satisfied that the applicant and sponsor have been in a long-term relationship, and have been married for 9 ½ years. I am satisfied that the sponsor is currently a full-time carer for his seriously ill father, and it would be very difficult for him to leave Australia if the applicants were required to do so.

23. For all these reasons that Tribunal is satisfied that it is reasonable to approve the sponsorship pursuant to r.1.20KC(4).

24. I am therefore satisfied that the sponsorship should be approved at the time of decision, and therefore the first named applicant meets the requirements of cl.820.221(4).

25. On the evidence before the Tribunal the sponsorship requirements of cl 820.211(2)(c) and  cl.820.221(4) are met.

    Secondary visa applicant

26. Cl.820.311(a)(i) requires that the secondary visa applicant is a dependent child of a person who has applied for a Partner (Residence) visa. I am satisfied based on the identification documents including the birth certificate that the second named applicant is the daughter of the first named visa applicant, and is her dependent child within the meaning of r.1.03. For these reasons I find that the second named applicant meets the requirements of cl.820.311(a) at the time of application

27. 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

28. 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.

    Margie Bourke
    Member