1837201 (Migration) - [2022] AATA 452

1837201 (Migration) [2022] AATA 452 (18 January 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1837201
MEMBER:David Barker
DATE:18 January 2022
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.

Statement made on 18 January 2022 at 1:33pm
CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – visa, relationship and residence history – legally married – sponsor’s child from extra-marital relationship – separation and cancellation of applicant’s dependant visa – application for protection visa refused and refusal affirmed – reconciliation and second child – shared responsibility for both children – inconsistent evidence of relationship and residence – sponsorship limit – application made within 5 years of grant of sponsor’s contributory parent visa – no compelling reasons for applicant not applying for contributory parent visa at same time as sponsor – cultural attitudes – consent to decision without hearing – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 65, 116(1)(a), 359A
Migration Regulations 1994 (Cth), r 1.20KA(2), (3)(a), Schedule 2, cl 820.211(2)(c)
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 applicant a Partner (Temporary) (Class UK) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 30 June 2017 on the basis of his relationship with his 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.
The delegate refused to grant the visa on the basis that the applicant did not satisfy cl 820.211(2)(c) because the delegate determined reg 1.20KA of the Migration Regulations 1994 (Cth) (the Regulations) was not met, due to the limitations associated with approving the sponsorship relating to partner and prospective marriage visa applicants by persons granted a permanent Contributory Parent category visa.
On 23 November 2021 the Tribunal wrote to the applicant advising that it had considered all the material before it relating to his application but that it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing on 13 December 2021 at 12 noon.
On 13 December 2021 at 9:30 am the applicant advised the Tribunal that he did not wish to give…

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 1837201 (Migration)

Details

AGLC: 1837201 (Migration) [2022] AATA 452
Case: [2022] AATA 452
Decision Date: 18 January 2022

CaseChat Overview and Summary

This matter concerned an application for a Partner (Temporary) (Class UK) visa (Subclass 820). The applicant sought review of the delegate's decision to refuse this visa. The Tribunal was required to consider the applicant's relationship and residence history with the sponsor, who was his wife, as well as the sponsor's visa history and sponsorship limitations.

The primary legal issues before the Tribunal were whether the applicant met the criteria for the Subclass 820 visa, specifically concerning the genuineness and continuity of his relationship with the sponsor at the time of application and decision, and whether the sponsor was eligible to sponsor the applicant given her own visa history and regulatory limitations on sponsorship. The Tribunal also had to consider the sponsor's evidence regarding the breakdown and subsequent reconciliation of the relationship, and the implications of the applicant's prior visa cancellations and refusals.

The Tribunal reasoned that the sponsor's statutory declaration indicated a lack of a spousal relationship at the time of her Parent visa applications and grant. This contradicted the applicant's claim of a genuine and continuing relationship. Furthermore, the Tribunal noted that the sponsor had been granted a Subclass 143 Contributory Parent (Permanent) visa on 20 March 2017. Regulation 1.20KA of the Migration Regulations 1994 stipulated that if the person to be sponsored for a Partner visa was the proposed sponsor's spouse on or before the date the Contributory Parent visa was granted, a period of five years must have passed since the sponsor's visa grant. As the applicant's Partner visa application was made on 10 January 2022, less than five years after the sponsor's Subclass 143 visa grant, this regulatory requirement was not met. The Tribunal found no compelling reasons to waive this requirement, noting that the applicant had not applied for the Contributory Parent visa concurrently with the sponsor.

Consequently, the Tribunal affirmed the delegate's decision not to grant the applicant a Partner (Temporary) (Class UK) visa.

Orders

Orders of the court

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Background

Background to the litigation

For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.BACKGROUND The applicant’s wife (the sponsor) first arrived in Australia [in] February 2008 on a Subclass 573 Student visa. She was subsequently granted further Student visas in May 2008, September 2010, October 2011 and July 2013, with that latter Student visa ceasing on 29 September 2014. After this she held Bridging E visas until granted a Subclass 173 Contributory Parent (Temporary) visa on 11 August 2015. The sponsor departed Australia on that date and then returned to Australia on 2 September 2015. In relation to the Contributory Parent visa, the sponsor was in turn sponsored by [Mr A], on the basis of shared parentage of an Australian citizen child. The sponsor was granted the Subclass 143 Contributory Parent (Permanent) visa on 20 March 2017 and became an Australian citizen, by grant, [in] November 2020. The applicant first arrived in Australia [in] February 2008 on a Subclass 573 Student visa granted as a dependant of the sponsor. He was granted subsequent Student visas, as a dependant of the sponsor, in May 2008, September 2010 and October 2011, with the latter visa valid to 17 April 2013. A further Student visa application, identifying the sponsor as the primary visa applicant, with the applicant and [the child], born [2012], as dependant applicants, was lodged on 17 July 2013. The Student visa for the parties was granted, but in relation to the applicant it was subsequently cancelled under s 116(1)(a) on the basis that the circumstances which permitted the grant of the visa no longer exist because the applicant was no longer the spouse, or member of the family unit, of the sponsor. This followed on from the sponsor contacting the Department and informing them that her relationship with the applicant had broken down. The applicant requested a review of this decision by the Migration Review Tribunal (MRT), which on 26 September 2013 set aside the decision under review and substituted a decision not to cancel the applicant’s Student visa.[1] The decision record regarding that matter noted that at hearing the applicant and the sponsor gave evidence that whilst they had experienced some relationship difficulty they did not stop living together at any time and that the applicant was at that time in September 2013 caring for their baby on a full-time basis. The Tribunal has listened to the recording of that hearing and verified the accuracy of the information outlined in the aforementioned MRT decision record.[1] MRT Case Number [Number 1]. The applicant applied for a Subclass 866 Protection visa on 9 May 2014, with that application being refused on 28 January 2015. He applied for review of that decision by the Refugee Review Tribunal (RRT), and on 10 May 2016 the RRT affirmed the Protection visa refusal decision.[2] The applicant applied for a judicial review of the RRT decision, with that matter finally determined [in] August 2017 on ‘client withdrawal’ and Dismissal by the Court.[3][2] RRT Case Number [Number 2].[3] Federal Court, FCC NSW [Number 3].

Evidence

Evidence Before The Court

On 10 January 2022 the Tribunal received a statutory declaration prepared by the sponsor which stated: I lodged my SC173 Parent visa application on 26.7.2013 and my SC143 visa application on 21.1.2016.I was granted my SC143 visa on 20 March 2017.At the time of lodging my Parent visa applications and on the date of grant of my parent visa, I did not have spousal relationship with [the applicant].In between these dates [the applicant] tried to reunite with me but it did not work and we remained separated.It is incorrect to assume that I intentionally did not include his name in the Parent visa applications. If I had genuine and continuing relationship during the above periods, I would have included his name in the Parent visa applications.CONSIDERATION OF CLAIMS AND EVIDENCE Relevantly to this case, cl 820.211 requires at the time of application, the applicant meets one of several alternative sub criteria. These include cl 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). 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. Regulation 1.20KA of the Regulations sets a limit on the period before which a certain person can sponsor another person for a Partner visa. Regulation 1.20KA applies where a Subclass 143 Contributory Parent or Subclass 864 Contributory Aged Parent visa holder, who was granted that visa on or after 1 July 2009, seeks to sponsor another person after that date. If the person to be sponsored for a Partner or a Prospective Marriage visa was the proposed sponsor’s spouse or de facto partner on or before the day the Subclass 143 or 864 visa was granted, a period of 5 years must have passed since the date the sponsor’s visa was granted.

Decision

Reasons for decision

For the reasons above, the applicant does not satisfy the criteria for the grant of the visa.DECISION The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.David BarkerMember

Ratio Decidendi

Legal Principle Established

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