1919916 (Migration) - [2024] AATA 761

1919916 (Migration) [2024] AATA 761 (1 February 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Adrian Joel (MARN: 9357728)
CASE NUMBER:  1919916
MEMBER:Maxina Martellotta
DATE:1 February 2024
PLACE OF DECISION:  Perth
DECISION:The Tribunal remits the application for a Partner (Temporary) (Class UK) visa, with the direction that the applicant meets the following criteria for a Subclass 820 (Partner) visa:
·cl 820.211(2)(c) of Schedule 2 to the Regulations;
·cl 820.221(4) of Schedule 2 to the Regulations.

Statement made on 01 February 2024 at 2:11pm

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – sponsorship limitation – two previous sponsorships resulting in grants of visas – compelling circumstances to waive requirement – sponsor’s long residence and no significant ties in birth country – long relationship and valid marriage – property and finances – sponsor’s previous family violence and mental health – elderly mother’s health – credible and corroborated evidence – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.20J(1)(a), (2), Schedule 2, cls 820.211(2)(c), 820.221(4)
CASES
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 applicant applied for the visa on 8 March 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 visa applicant did not satisfy cl 820.221 because of the sponsorship limitations set out in reg 1.20J. Specifically, the delegate was not satisfied that the sponsor’s circumstances were sufficiently compelling to waive the limitation. The delegate identified that they were dealing with the ‘time of decision’ criteria and were not otherwise considering the ‘time of application’ requirements under cl 820.211(2).[1]
[1]The delegate did not address the other criteria pertaining to the genuineness of the relationship.
The applicant appeared before the Tribunal on 23 January 2024 by Microsoft Teams to give evidence and present arguments. The Tribunal also received oral evidence from his sponsor, the sponsor’s daughter and the sponsor’s mother. The Tribunal hearing was conducted with the assistance of an interpreter in the Korean and English languages.
In the Tribunal’s assessment, the oral…

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 1919916 (Migration)

Details

AGLC: 1919916 (Migration) [2024] AATA 761
Case: [2024] AATA 761
Decision Date: 1 February 2024

CaseChat Overview and Summary

This matter concerned an application for a Partner (Temporary) (Class UK) visa, Subclass 820 (Partner). The central dispute revolved around the application of sponsorship limitations under the Migration Regulations 1994, and whether compelling circumstances existed to waive these limitations. The decision was made by Maxina Martellotta.

The legal issues before the Tribunal were whether the sponsorship limitations applied to the applicant's case and, if they did, whether there were compelling circumstances affecting the sponsor that would justify an exemption from these limitations. The Tribunal was required to consider the relevant clauses of Schedule 2 to the Regulations concerning sponsorship requirements and limitations, including those pertaining to previous sponsorships, the time elapsed between sponsorships, and the nature of the relationship.

The Tribunal reasoned that the matter should be remitted for reconsideration. While the specific details of the sponsor's history, including two previous sponsorships resulting in visa grants, were noted, the Tribunal's decision indicates that the assessment of compelling circumstances was not fully completed or adequately evidenced. The Tribunal directed that the applicant meets specific criteria for the Subclass 820 visa, namely cl 820.211(2)(c) and cl 820.221(4) of Schedule 2 to the Regulations. The decision to remit suggests that further consideration of the sponsor's circumstances, potentially including their long residence, lack of ties to their birth country, the duration and validity of the current relationship, property and financial arrangements, past family violence and mental health issues, and the health of an elderly mother, was required to determine if compelling circumstances warranted waiving the sponsorship limitations.

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 issue in the present case is whether the sponsorship limitations apply and if so, whether there are compelling circumstances affecting the sponsor such that the limitation does not apply.[2]Are the sponsorship requirements met? Clause 820.211 requires that, 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, cl 820.221(4) requires that (amongst other things) if cl.820.211(2)(c) requires the applicant to be sponsored, the sponsorship must have been approved by the Minister and still be in force. For visa applications made on or after 18 November 2016, the sponsor must also have consented to the Department disclosing 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.Sponsorship limitations 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. Reg.1.20J(1) requires the Minister 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.

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 application for a Partner (Temporary) (Class UK) visa, with the direction that the applicant meets the following criteria for a Subclass 820 (Partner) visa:·cl 820.211(2)(c) of Schedule 2 to the Regulations; and·cl 820.221(4) of Schedule 2 to the Regulations.Maxina MartellottaMemberATTACHMENT - Extract from Migration Regulations 19941.15A 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 subregulation (3).(3)The matters for subregulation (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.(4)If the Minister is considering an application for a visa of a class other than a class mentioned in subregulation (2), the Minister may consider any of the circumstances mentioned in subregulation (3).

Ratio Decidendi

Legal Principle Established

The Tribunal remits the application for a Partner (Temporary) (Class UK) visa, with the direction that the applicant meets the following criteria for a Subclass 820 (Partner) visa:·cl 820.211(2)(c) of Schedule 2 to the Regulations; and·cl 820.221(4) of Schedule 2 to the Regulations.Maxina MartellottaMemberATTACHMENT - Extract from Migration Regulations 19941.15A 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 subregulation (3).(3)The matters for subregulation (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.(4)If the Minister is considering an application for a visa of a class other than a class mentioned in subregulation (2), the Minister may consider any of the circumstances mentioned in subregulation (3).