1833015 (Migration)

[2022] AATA 4243

1833015 (Migration) [2022] AATA 4243 (29 November 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Donald Lucas (MARN: 9501008)

CASE NUMBER:  1833015

MEMBER:Deputy President J.L Redfern PSM

DATE OF ORAL DECISION:  29 November 2022

DATE OF WRITTEN STATEMENT:         9 December 2022

PLACE OF DECISION:  Sydney

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 309.211 of Schedule 2 to the Regulations,

·cl 309.213 of Schedule 2 to the Regulations,

·cl 309.221 of Schedule 2 to the Regulations, and

·cl 309.222 of Schedule 2 to the Regulations.

Statement made on 09 December 2022 at 9:56am

CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – whether a genuine spousal relationship exists – joint financial commitments – child to the relationship - joint responsibility for the care and support of a child – joint household responsibilities – relationship represented to others – evidence of ongoing commitment – criminal convictions – decision under review remitted with direction

LEGISLATION
Migration Act 1958, ss 5F, 65
Migration Regulations 1994, Schedule 2, cls 309.211, 309.213, 309.221, 309.222; rr 1.15A, 1.20KB, 1.20KD

CASES
He v Minister for Immigration and Border Protection [2017] FCAFC 206

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 on 6 November 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, [applicant], applied for the visa on 27 June 2017 on the basis of her relationship with her sponsor, the review applicant, [sponsor]. 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). At the time she made her application, [applicant] was living with [sponsor] in Hong Kong. [Sponsor] is an Australian citizen. [Applicant] urgently travelled overseas in late 2014 to visit her sick grandfather, who later died. She was accompanied by [sponsor]. [applicant] was unable to return to Australia after this time as her student visa was cancelled in her absence and she was refused a visitor visa on two occasions. Both [sponsor] and [applicant] have resided overseas, principally in Hong Kong, since this time.

3. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl 309.22. The delegate requested further information by email dated 24 September 2018, being evidence that the applicant continued to be the spouse or de facto partner of an Australian citizen. It was requested that these documents be provided within 28 days. The documents requested included originals of Hong Kong Certificates of Registered Particulars and travel documents. [Applicant] retained a lawyer to act on her behalf in Hong Kong, although it is noted in the decision record that the appropriate form had not been lodged to facilitate the authorisation for that person to act. Despite this, information was provided by this person by post and according to the decision record, all documents submitted were assessed and taken into account. However, according to the information provided by [sponsor] in support of the review, it appears that the originals of the official documents requested were not able to be collected by the lawyer until 6 November 2018. Even though these documents were provided and an extension had been given, the extension was apparently only provided until end of October 2018. While it is not entirely clear what transpired at around this time, it appears that the application was refused before these documents were received.

4. [Sponsor] and [applicant] appeared before the Tribunal on 29 November 2022 to give evidence and present arguments. Both [sponsor] and [applicant] gave oral evidence and were represented by lawyer, Mr Donald Lucas. Prior to the hearing extensive written submissions were provided in support of the application, including updated evidence about the personal circumstances of [applicant] and [sponsor], the birth certificate for their daughter born in April 2022, the certificate of Australian citizenship granted to the daughter and an Australian passport for their daughter issued by the Commonwealth on 11 November 2022.

5. At the time of lodging the application for the visa, [sponsor] and [applicant] had provided numerous statutory declarations in support of the application. These statutory declarations were from long-standing friends of [sponsor] and his parents. [Sponsor’s] mother was available to give oral evidence in relation to the matters raised in her statutory declaration, but I considered it unnecessary to call her because I was satisfied with the information contained in her written evidence, which was very detailed and consistent with other evidence before me.

6. In essence, based on the evidence provided in support of the visa application and in support of these proceedings, together with the evidence of [sponsor] and [applicant], I was satisfied that [applicant] met the relevant criteria for the visa and that [applicant] and [sponsor] were in a genuine married relationship at the time of the application and this continued to be the case at the time of my decision. A request for priority was made in August 2022 based on mental health concerns outlined in an accompanying expert report in respect of [sponsor], who by this stage had been living outside the country of his birth for approximately seven years because of his choice to remain with [applicant]. Because of the significant delay in this matter, I decided to deliver a favourable oral decision at the conclusion of the hearing.

7. For the following reasons, I have concluded that the matter should be remitted for reconsideration.

   STATUTORY FRAMEWORK

8. Section 29 of the Act provides that the Minister may grant a non-citizen permission, known as a visa, to travel to and enter Australia, or remain in Australia, or both. Section 31(1) of the Act provides that there are to be prescribed classes of visas and subs (3) provides that the Regulations may prescribe the criteria for visas of a specified class. The prescribed classes of visas are set out in Schedule 1 to the Regulations and include a Temporary and Residence Partner visa, the latter being a permanent visa. Schedule 2 to the Regulations sets out the prescribed criteria relating to the relevant class of visa, including the primary criteria and any secondary criteria. If the Minister is satisfied that the criteria prescribed by the Act or the Regulations have been satisfied, s.65 of the Act provides that the Minister is to grant the visa, or, if not so satisfied, to refuse to grant the visa.

9. There is a two-stage process before a permanent partner visa is granted, with the applicant applying for the provisional or temporary visa and permanent visa at the same time. If the criteria for the temporary visa are met, the visa is granted to allow the applicant to remain in Australia until a decision on the permanent visa is made, which will not be considered until after two years.

10. Part 309 of Schedule 2 to the Regulations prescribes the criteria for a Partner Visa. This is the temporary visa. Clause 309.21 sets out the primary criteria that must be satisfied at the time of the application and cl 309.22 sets out the criteria that must be satisfied at the time of decision.

11. Relevant to the facts in this case, subclauses 309.211, 309.212 and 309.213 provide that an applicant will meet the requirements for the visa at the time of the application if the applicant is the spouse or de facto partner of the sponsoring partner, who is an Australian citizen, has turned 18 years old and is not prohibited from being a sponsoring partner. Subclause 309.221(1) provides that an applicant must continue to meet the criteria in cl 309.211 at the time of the decision.

12. As observed by the Full Court in He v Minister for Immigration and Border Protection, the ‘central criterion’ for a Partner visa is that the visa applicant must be the spouse of the sponsor.[1]

    [1] [2017] FCAFC 206 at [28].

13. Section 5F of the Act defines the word "spouse" as follows:

    5F Spouse

    (1) For the purposes of this Act, a person is the spouse of another person if, under subsection (2), the 2 persons are in a married relationship.

    (2)      For the purposes of subsection (1), persons are in a married relationship if:

    (a) they are married to each other under a marriage that is valid for the purposes of this Act; and

    (b) they have a mutual commitment to a shared life as husband and wife to the exclusion of all others; and

    (c)      the relationship between them is genuine and continuing; and

    (d)      they:

    (i) live together; or

    (ii) do not live separately and apart on a permanent basis.

    (3) The regulations may make provision in relation to the determination of whether one or more of the conditions in paragraphs (2)(a), (b), (c) and (d) exist. The regulations may make different provision in relation to the determination for different purposes whether one or more of those conditions exist.

14. Relevantly, r. 1.15A of the Regulations provides as follows:

    1.15A    Spouse

    (1)For subsection 5F (3) of the Act, this regulation sets out arrangements for the purpose of determining whether 1 or more of the conditions in paragraphs 5F (2) (a), (b), (c) and (d) of the Act exist.

    (2)If the Minister is considering an application for:

    (a)a Partner (Migrant) (Class BC) visa; or

    (b)a Partner (Provisional) (Class UF) visa; or

    (c)a Partner (Residence) (Class BS) visa; or

    (d)a Partner (Temporary) (Class UK) visa;

    the Minister must consider all of the circumstances of the relationship, including the matters set out in sub regulation (3).

    (3)The matters for sub regulation (2) are:

    (a)the financial aspects of the relationship, including:

    (i)any joint ownership of real estate or other major assets; and

    (ii)any joint liabilities; and

    (iii)the extent of any pooling of financial resources, especially in relation to major financial commitments; and

    (iv)whether one person in the relationship owes any legal obligation in respect of the other; and

    (v)the basis of any sharing of day to day household expenses; and

    (b)the nature of the household, including:

    (i)any joint responsibility for the care and support of children; and

    (ii)the living arrangements of the persons; and

    (iii)any sharing of the responsibility for housework; and

    (c)the social aspects of the relationship, including:

    (i)whether the persons represent themselves to other people as being married to each other; and

    (ii)the opinion of the persons’ friends and acquaintances about the nature of the relationship; and

    (iii)any basis on which the persons plan and undertake joint social activities; and

    (d)the nature of the persons’ commitment to each other, including:

    (i)the duration of the relationship; and

    (ii)the length of time during which the persons have lived together; and

    (iii)the degree of companionship and emotional support that the persons draw from each other; and

    (iv)whether the persons see the relationship as a long term one.

15. According to the Full Court in He v MIBP, r. 1.15A is prescriptive and the Tribunal must give “proper, genuine and realistic consideration” to each of the prescribed circumstances, which comprise of four principal matters and, thereafter, a series of specific matters relevant to the principal matters. The Full Court found that the Tribunal is required to make findings on each of the prescribed matters, even if the Tribunal’s answer may be that there is no material, or insufficient material, to form a conclusion on a prescribed matter. This not only includes the specific matters numbered with Roman numerals but requires findings in respect of the principal matters under the broad headings.[2] This is the approach I have taken to the consideration of the relevant criteria for the visa.

    [2] He v Minister for Immigration and Border Protection at [73] to [77].

    CONSIDERATION OF CLAIMS AND EVIDENCE

16. The issue in the present case is whether [sponsor] and [applicant] were in a married relationship at the time of the application and whether they continue to be so at the time of my decision.

    Outline of the evidence

17. At the time of lodging the application, [sponsor] and [applicant] provided detailed documentation in support of the claim for the visa application, including statements from [sponsor] and [applicant] about how they met and details about their relationship, five statutory declarations from family and friends attesting to the nature of the relationship over an extended period, financial information, including bank statements, documents relating to lease arrangements and superannuation documents, a marriage certificate and court documents relating to the divorce of [applicant] from her former husband in 2015, screenshots of online conversations between [sponsor] and [applicant] and photographs of [sponsor] and [applicant] in various settings over an extended period.

18. Prior to the hearing, [sponsor] and [applicant] provided updated bank statements and financial details, email correspondence between their former lawyer in Hong Kong and the delegate in relation to requests for further information, an email to the Tribunal outlining the explanation of why the information was not able to be provided within 28 days, further photographs of [applicant] and [sponsor] in various social settings and documents in relation to their daughter, as already noted. Mr Lucas provided extensive submissions in support of the application, together with a report, being a psychological assessment in relation to [sponsor’s] mental health, which was lodged in support of an application for priority. This report, dated 17 August 2022, concluded that [sponsor] had been adversely affected mentally and emotionally because of the prolonged delay in dealing with the visa application and that he was suffering from a major depressive disorder and generalised anxiety disorder. The submission and report led to the matter being urgently constituted.

19. A chronology of the key events in the relationship between [sponsor] and [applicant] was summarised in a submission provided by Mr Lucas dated 27 November 2022. This chronology is otherwise supported by the documentation provided by [sponsor] and [applicant], [applicant’s] visa history and information contained in the department file and provides a convenient overview of the matter and the history of their relationship.

20. [Applicant] first arrived to Australia on a working holiday visa in December 2012. She was granted a student visa in November 2013. [Sponsor] and [applicant] reportedly first met in February 2013 and moved in together, in the house where [sponsor] lived with his mother in Edensor Park, in June 2013. They announced their engagement on Facebook in July 2013. [sponsor] and [applicant] travelled to China in December 2014 and commenced living with [applicant’s] mother and her grandfather in Hunan province, China, where they resided, except for a brief trip to Hong Kong in June 2015, until about May 2016. [Applicant’s] grandfather died in March 2016.

21. [Applicant] had previously been married in China. She and her husband were separated by the time she met [sponsor] and her divorce was finalised on 8 May 2015. [Applicant] provided the court documents to the Department, translated into English, in support of her application for the visa. These documents support [applicant’s] claim that her marriage broke down early in the relationship after her husband refused to live with her in Hong Kong, where she lived.

22. [Applicant’s] student visa was cancelled in January 2015. She applied on two occasions for a visitor visa to return to Australia, but they were refused. [Sponsor] and [applicant] lived together in Hong Kong from May 2016 until November 2016, when they returned to Hunan province. They resided there together from November 2016 to June 2017, after which time they returned to Hong Kong, where they have resided together in various apartments in Kowloon, Hong Kong, since this time. The application for the visa was lodged on 27 June 2017 and was refused on 6 November 2018. [Sponsor] and [applicant] had a daughter in April 2022 and the child was conferred with Australian citizenship on 11 August 2022. An Australian passport was issued on 11 November 2022.

23. According to statements provided by [sponsor] and [applicant] they first met in a 7-Eleven store in Pitt Street in Sydney in February 2013. [Applicant] was attempting to purchase a drink but only had a $100 note to present to the cashier who did not have any change. [applicant] did not speak English very well at that stage, she was unsure as to what to do and [sponsor], noticing her predicament, offered to pay for the drink. After this they walked around the city, exchanged telephone numbers and began dating. [Applicant] moved into [sponsor’s] home, where he lived with his mother, in June 2013. [Applicant] and [sponsor] lived together with [sponsor’s] mother until late 2014 when they travel to China to visit [applicant’s] grandfather. He was very ill at the time and [applicant] was close to her grandfather. They approached [applicant’s] College where she was studying and requested permission for [applicant] to leave the school so she could return to China. They stayed with [applicant’s] mother to help her look after [applicant’s] grandfather, although they travelled to Hong Kong where they stayed for a short period in June 2015 to get married. After getting married they travelled back to China to continue assisting [applicant’s] mother to look after [applicant’s] grandfather until he passed away in March 2016. [Sponsor] and [applicant] have lived overseas since this time, living in China and Hong Kong, but principally in Hong Kong.

24. [Sponsor] and [applicant] have their own bank accounts but share the payment of expenses, including rental. [Applicant] is the beneficiary of [sponsor’s] construction and building union superannuation account. They share household duties, including the purchase of weekly groceries. They share an interest in dining out and watching movies. When [sponsor] first met [applicant], he introduced her to his friends, including his first cousin, [name], who provided a statutory declaration confirming this evidence.[3] According to the statement, [sponsor] and [applicant] have lived together since June 2013, with a brief period apart from 15 October to 2 November 2016 when [sponsor] returned to Australia for a few weeks.

    [3] Statutory Declaration of [name] dated 29 March 2017.

25. [Sponsor] and [applicant] also gave oral evidence at the hearing. Their oral evidence was consistent with the evidence contained in their statements, the evidence provided by third parties and with the evidence that they each gave during the hearing. The evidence provided was detailed, spontaneous and credible. They also provided oral evidence about their updated circumstances. Since the baby was born, [applicant] has remained at home to look after the child and [sponsor] is the primary income earner. He works 12 hours a day, six days a week and returns home each night at about midnight. Before he leaves for work, [sponsor] assists [applicant] with the baby and household duties. [Applicant] said that she does not go out very much and feels very isolated. [Sponsor] says he wants to return home to Australia with [applicant] and their baby as soon as possible.

1. A statutory declaration dated 31 March 2017 provided by [sponsor’s] mother, [name], corroborated the evidence provided by [sponsor] and [applicant]. [Name] stated, amongst other things, that her son and [applicant] had ‘not left each other side’, that she believed their relationship was genuine that they had deep affection and commitment to each other. [Name] stated that she missed her son and wanted him to be home with her but he was not prepared to leave his wife. [Sponsor’s] father provided a statutory declaration dated 9 May 2017 to the effect that he first met [applicant] in April 2013 when she attended a birthday party with [sponsor] at his home. He stated that he ‘strongly’ believed in their relationship and love for each other, and he was proud to have [applicant] in his family.

2. The Department was provided with two further statutory declarations from witnesses said to be long-standing friends of [sponsor] to the effect that those witnesses had known [sponsor] for most of his life, they had met [applicant] in about 2013 and believed that [sponsor] and [applicant] were in a genuine relationship because they had spent time with them and had observed various aspects of their relationship. Each statutory declaration included a detailed account of their dealings with [applicant] and [sponsor].[4] The official documents requested by the delegate in Hong Kong were provided at around the time the delegate refused the visa.

   [4] Statutory Declaration of [friend 1] dated 6 July 2017 and Statutory Declaration of [friend 2] dated 31 January 2018.

3. I find that [sponsor] and [applicant] first met in February 2013, they became a couple soon after, they have lived continuously together both in Australia and overseas since this time, they married in June 2015 and now have a child together, who has been conferred Australian citizenship by descent. I am also satisfied that [sponsor] is an Australian citizen and that he was at least 18 years old at the time the visa application was made.

4. [Sponsor] and [applicant] were married on 5 June 2015 and provided evidence of this to the delegate and to the Tribunal. The validity of their marriage is uncontentious. I am satisfied that this marriage is valid for the purposes of the Act as required by s.5F(2)(a) and find accordingly. However, a lawful marriage is not enough to establish a married relationship for the purposes of the Act.

5. As noted, s.5F of the Act provides that for persons to be in a “married relationship” there must also be a mutual commitment to a shared life as a married couple to the exclusion of all others, the relationship must be genuine and continuing, and the couple must live together, or not live separately and apart on a permanent basis. In forming an opinion about these matters, regard must given to all of the circumstances of the relationship, which includes evidence of the financial and social aspects of the relationship, the nature of the household and commitment of the visa applicant and sponsor to each other.

6. In making this assessment I must consider each of the matters referred to in reg 1.15A. The evidence relevant to the consideration of those matters and my findings are set out below.

   Financial aspects of the relationship

7. [Sponsor] and [applicant] gave oral and written evidence to the effect that they pool their financial resources and share household expenses. They do not own any significant assets (either jointly or separately), although there is evidence that [applicant] is the beneficiary of [sponsor’s] superannuation account. The documentary evidence provided about the financial affairs of [sponsor] and [applicant] corroborates with their oral and written statements.

8. I find, based on the available evidence, that the financial aspects of the relationship between [sponsor] and [applicant] are consistent with being in a married relationship.

   Nature of the household

9. I am satisfied that there is cogent and persuasive evidence that [sponsor] and [applicant] have lived together since about June 2013 as a couple since they married in June 2015, apart from a brief absence when [sponsor] returned to Australia to visit his family for two weeks in mid-October 2016. I accept their evidence that they share household work and regularly shop and watch movies together. They have a child together and as observed during the hearing, [sponsor] and [applicant] share in the care of their child. These matters are indicative of a married relationship.

   Social aspects of the relationship

10. [Sponsor] and [applicant] provided numerous photographs, both to the Department and the Tribunal, showing them in various settings, including informal settings, events with friends and family and photos with their child. They gave oral evidence about the social aspects of their relationship. They regularly met with friends and family before in China, however, since living in Hong Kong, both stated that they have had fewer social interactions with others. Despite this, there was written evidence provided by family and friends through statutory declarations that was detailed and credible about the nature of the relationship between [sponsor] and [applicant].

11. I am satisfied that the social aspects of the relationship between [sponsor] and [applicant] are consistent with them being in a married relationship.

    Nature of persons' commitment to each other

12. I am satisfied that [sponsor] and [applicant] have been together as a couple from at least June 2013, when they moved in together. The evidence of [sponsor] and [applicant] about how they met and how their relationship developed until their marriage in June 2015 is consistent and credible. I am also satisfied that this relationship has been continuous since this time and that over this period they have provided companionship and emotional support to each other. [Sponsor] travelled to China to support [applicant] in the care of her grandfather and when she was unable to return, he stayed with her living overseas in a country where he could not speak the language, spending extended periods away from his friends and family in Australia where he was born. This clearly demonstrates [sponsor’s] strong and unwavering commitment to [applicant]. I also accept, based on the evidence provided by the third-party witnesses and the oral evidence given by [applicant] at the hearing, that she has a very strong commitment to [sponsor] and that this commitment is ongoing.

13. I am therefore satisfied, based on the evidence from [sponsor] and [applicant] and close friends and relatives, that they have a long-term and genuine commitment to each other, indicative of a married relationship.

    Conclusion

14. Having regard to my findings set out above, I am satisfied that [sponsor] and [applicant] have a mutual commitment to a shared life as husband and wife to the exclusion of all others. There is no suggestion that either of them is or has been involved in other relationships from the time that they first met and became engaged. I am also satisfied that their relationship is genuine and continuing and, on the evidence before me, I am satisfied that this has been the case since at least June 2013 when they moved in together and from June 2015 when they got married. I am also satisfied that [sponsor] and [applicant] have lived together for this period.

15. Given these findings I am satisfied that the requirements of s.5F(2) of the Act are met at the time of the application of the visa and at the time of this decision. I am therefore satisfied that [applicant] meets cl 309.211 and cl 309.221 of Schedule 2 of the Regulations.

    Are the sponsorship requirements met?

16. Clause 309.213 requires that the visa applicant is sponsored by the review applicant, who has, relevantly to the facts in this case, turned 18 and is either an Australian citizen, permanent resident or eligible New Zealand citizen (as defined in r.1.03 of the Regulations). As already noted, there is no dispute that [sponsor] has turned 18 and is an Australian citizen. Nor is there any dispute that [sponsor] is a sponsor of [applicant] and that he has given the undertakings required by reg 1.20.[5] As such, I find that [applicant] is ‘sponsored’ for the purposes of cl 309.213. For completeness, I also note that [sponsor] is not prohibited from being a sponsor under cl 309.212.

    [5] Refer to regulation 1.20 which provides that sponsors must give undertakings in respect of certain visas in accordance with an ‘approved form’. Form 40SP is such an approved form and was completed by [sponsor] on 21 June 2017 and lodged with the Department at the time of the application.

17. I must be satisfied that this sponsorship must have been approved and still be in force at the time of my decision: cl 309.222.

18. 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.

19. Approval of sponsorship is subject to limitations contained in reg 1.20J of the Regulations, which, relevantly, imposes limited under 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 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. A ‘relevant offence’ is defined in reg 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: reg 1.20KD(5).

20. 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: reg 1.20KC(4).

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

22. At the time of the application, [sponsor] disclosed his convictions and consented to disclosure of this to the visa applicant.[6] The convictions included a series of driving and licence offences from 2006 to 2011, together with an affray and a common assault offence, for which he was convicted in 2013 and 2014, with the common assault conviction being ‘called up’ on 17 October 2016. [Sponsor] was sentenced to a community service for the affray offence and received a good behaviour bond for two years in November 2014 for the common assault offence. He was further sentenced on 17 October 2016 to a good behaviour bond of 12 months for the common assault offence, which was called up at that time.

    [6] Refer to Form 40SP at p13.

23. Submissions made the time of the application were to the effect that the limitations did not apply to [sponsor]. As there is no reference made in the decision of the delegate in relation to these matters and whether the sponsorship was approved, I have considered this matter based on the evidence before me.

24. It was submitted, and I accept, that not all of the offences for which [sponsor] was charged are ‘relevant offences’ for the purposes of reg 1.20KC(2). In examining the National Police Certificate dated 6 February 2017, it is apparent that there are two offences in [sponsor’s] criminal record that could be characterised as offences of ‘violence’. Those offences are ‘affray’ for which he was convicted and sentenced in October 2013 to a community service order and ‘common assault’ for which he was convicted in November 2014 (‘called up’ in October 2016) for which he was sentenced to good behaviour bonds. [sponsor] did not serve terms of imprisonment for these offences and as such, he does not have a significant criminal record for the purposes of reg 1.20KD.

25. Accordingly, there is no evidence before me to suggest that [sponsor’s] sponsorship of [applicant] should not be approved or that approval is limited by reason of regs 1.20KB or 1.20KD. I therefore approve the sponsorship and find that the requirements of cl 309.222 are met.

26. 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

27. 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 309.211 of Schedule 2 to the Regulations,

    ·cl 309.213 of Schedule 2 to the Regulations,

    ·cl 309.221 of Schedule 2 to the Regulations, and

    ·cl 309.222 of Schedule 2 to the Regulations.

    J.L Redfern PSM
    Deputy President