2002289 (Migration)

[2023] AATA 4513

2002289 (Migration) [2023] AATA 4513 (28 November 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Ramtin Diznab (MARN: 0957160)

CASE NUMBER:  2002289

MEMBER:Justine Clarke

DATE:28 November 2023

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 820.221(4) of Schedule 2 to the Regulations.

Statement made on 28 November 2023 at 3:51pm

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – sponsorship limit – two previous sponsorships and associated visas – compelling circumstances to waive requirement – longstanding, committed, registered relationship – sponsor’s specialised work – member of family unit – dependent child – decision made without hearing necessary – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 360(2)(a)
Migration Regulations 1994 (Cth), r 1.20J(1)(a), (2), Schedule 2, cls 820.221(4)(a), 820.321(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

1. This is an application for review of a decision made on 21 January 2020 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. At the time of the present decision, the first-named applicant (the applicant) is a [Age]-year-old national of the Republic of Korea (South Korea). It is claimed that the second-named applicant is her [Age]-year-old daughter. The second-named applicant is also a national of the Republic of Korea.

3. On 5 June 2017, the applicants applied for the visa based on the applicant’s relationship with [her sponsor]. At the time of this decision, the sponsor is [Age] years of age. The evidence is that he is an Australian citizen.[1]

   [1] The Department’s file contains a certified copy of a Victorian birth certificate. Although the copy before the Tribunal is a poor photocopy, the Tribunal understands that this document relates to the sponsor and evidences his birth in Australia. The Tribunal notes that the delegate had made a finding that the sponsor was an Australian citizen. The Tribunal has no reason to question that finding.

4. At the time that the applicants applied for the visa, 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. Relevantly to the present matter, the primary criteria include cl 820.221(4) and secondary criteria include cl 820.321(a).

5. The text of cl 820.221(4) is set out in the delegate’s refusal decision. It contains two paragraphs ((a) and (b)) and two notes. One of the notes to the provision states, amongst other things, that reg 1.20J limits the Minister’s discretion to approve sponsorships. The text of reg 1.20J is also set out in the delegate’s refusal decision. Essentially, it 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.

6. The applicants provided the Tribunal with a copy of the delegate’s refusal decision (the primary decision).

7. The delegate refused to grant the applicant the visa on the basis that she did not meet cl 820.221(4) of Schedule 2 to the Regulations. The delegate made this finding because they found that reg 1.20J(1)(a) was not met and there was no evidence that there were compelling circumstances affecting the sponsor such that the requirement in reg 1.20J(1) could be waived, pursuant to reg 1.20J(2). The delegate noted that, at the time the decision was made on 21 January 2020, the applicant had not responded to the Department’s correspondence dated 23 December 2019.

8. The delegate refused to grant the second-named applicant (the secondary applicant) the visa on the basis that she did not meet cl 820.321(a). The delegate made this finding because they found that the primary applicant did not meet cl 820.221(4).

9. On 6 February 2020, the applicants applied to the Tribunal for the review of the primary decision. The applicants were represented in relation to the review.

10. On 2 August 2023, the Tribunal invited the applicants to an in-person hearing to be held on 28 August 2023. However, on 25 August 2023, the Tribunal wrote to the applicants to inform them that the hearing had been postponed for a date to be determined.

11. Subsequently, having reviewed and considered the evidence before it, the Tribunal considered that a hearing was no longer required. Pursuant to s 360(2)(a) of the Act, the Tribunal considered that it should decide the review in the applicants’ favour based on the material before it. 

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. The issue in the present case is whether the applicant meets cl 820.221(4). That is, whether, at the time of this decision:

    ·the sponsorship of the visa has been approved and is still in force (cl 820.221(4)(a)); and

    ·the sponsor has consented to the disclosure by the Department, to each applicant included in the sponsorship, of any conviction of the sponsor for a relevant offence (within the meaning of subregulation 1.20KC(2)) (cl 820.224(b)).

14. With respect to the requirement in cl 820.224(b), the Tribunal has reviewed the copy of the record of responses to the ‘Sponsorship for a partner to migrate to Australia’ form which is on the Department’s file. The document states that the sponsor declares that he ‘[c]onsent[s] to the department disclosing convictions to the visa applicant(s)’. Based on this evidence, the Tribunal finds that, at the time of this decision, the requirement in cl 820.224(b) is met.

15. The Tribunal turns now to consideration of cl 820.224(a).

    Is the applicant sponsored?

16. 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).

17. The Tribunal is satisfied from the information and evidence before it that, at the time of application for the visas on 5 June 2017, the sponsor sponsored the visas and that he was over the age of 18 years (the evidence is that he was [Age] at the time). The Tribunal is satisfied that cl 820.211(2)(c) is met.

18. 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: cl 820.221(4)(a).

19. There is no information before the Tribunal to suggest that, at the time of this decision, the applicants do not continue to be sponsored by the sponsor.

20. The key issue for determination is whether the sponsorship has been approved and is still in force.

21. Approval of sponsorship is subject to limitations contained in reg 1.20J of the Regulations (discussed further below), 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.

22. As has been explained, reg 1.20J is the key provision in the present matter.

23. Regulation 1.20J 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. Under reg 1.20J, a sponsor is limited to a total, in a lifetime, of two approved sponsorships or nominations that lead to a grant of a partner visa (or entry permit) or a visa (or entry permit) granted on the basis of the domestic violence provisions. If there has been one previous sponsorship or nomination, or if the sponsor was granted a visa or entry permit as a result of being sponsored, a period of five years must have passed since the date of the earlier visa application. These requirements apply unless the Minister, or the Tribunal on review, is satisfied there are compelling circumstances affecting the sponsor: reg 1.20J(2).

24. The expression ‘compelling circumstances’ is not defined in the legislation. The Tribunal must consider whether the circumstances are such that they evoke interest or attention in a powerfully irresistible way: Babicci v MIMIA [2004] FCA 1645 or are ‘so powerful that they lead the [Tribunal] to make a positive finding that the [provision] should be waived’: Babicci v MIMIA [2005] FCAFC 77.

25. In the primary decision, the delegate explained that the sponsor did not meet reg 1.20J(1)(a), saying:

    At the time you lodged your Partner visa application on 05 June 2017, Departmental records confirm that your sponsor had two previous sponsorships, which were commenced on 23 August 2005 and 08 March 2011 respectively. Both sponsorships had resulted in the grant of a relevant Partner visa. Therefore, regulation 1.20J(1)(a) is not met.

26. The delegate continued:

    Although your sponsor does not satisfy Regulation 1.20J(1)(a), the sponsorship may be approved if it is established that there are compelling circumstances affecting your sponsor.

    Compelling circumstances affecting the interests of the sponsor may include (although this list is not exhaustive) instances where:

    ·     the applicant and their sponsor have a dependent child who is dependent on each of them; or

    ·     the previous spouse/partner has died; or

    ·     the previous spouse/partner has abandoned the sponsor and there are children dependent on the sponsor requiring care and support; or

    ·     the new relationship is long-standing.

27. The Tribunal notes that these matters were given as examples in the Explanatory Statement which accompanied the introduction of reg 1.20J. Departmental guidelines substantially reflect the policy intent contained in the Explanatory Statement.

28. As has been explained, the delegate found that there was no evidence that there were compelling circumstances affecting the sponsor such that the requirement in reg 1.20J(1) could be waived—largely, it would seem, because the applicants did not respond to the Department’s correspondence sent over the Christmas holiday period.

29. In this review, the Tribunal has had the benefit of written submissions prepared by the representative and dated 3 September 2021. It was submitted that the applicants’ previous representative had not notified the applicants about the Department’s letter of 23 December 2019. It was further submitted that the applicant and the sponsor were able to demonstrate a number of compelling circumstances affecting the sponsor, namely:

    ·the longstanding, committed partner relationship between the applicant and the sponsor with them having met on 5 February 2015; entered into a committed relationship soon after; established a home together on 20 January 2016; registered their de facto relationship in April 2020; built and moved into a new home together; co-owned a business (subsequently shut down); and travelled together domestically and overseas;

    ·that the applicant and their sponsor have a dependent child—the secondary applicant—who is dependent on each of them (it was submitted that the sponsor ‘takes her to [Sports] lessons, helps her with homework and school projects, taught her how to [do Sport 1] and how to ride a bicycle. He also attends all the parent-teacher interviews and he is the primary contact’), with the sponsor regarding her as his youngest daughter and he being the only fatherly figure in her life (no contact with her biological father since age [Age]) and the person she has been calling ‘Dad’ for a number of years;

    ·the sponsor’s elderly divorced parents (both in their [Decade]) whom it was submitted would be ‘devastated’ if the sponsor had to depart Australia permanently because the sponsor lives 9kms and 22kms away from each of them and sees them regularly (it was also submitted that the sponsor would be devastated to not be able to see them regularly);

    ·the sponsor’s two biological daughters whom it was submitted would be ‘devastated’ if the sponsor had to depart Australia permanently (it was also submitted that the sponsor would be devastated to not be able to see them regularly, particularly since ‘[d]ue to his employment duties in the past, the Sponsor had to work for many months at a time overseas. This led to him missing out on a lot of his daughters’ childhoods,’ something that he regrets); and

    ·the sponsor’s employment in Australia, with it being submitted that there are very few countries where the sponsor’s specialised [Work] skills (in the field of [Work specialisation]) are relevant and further that ‘[d]ue to his age, lack of knowledge of the local language and local customs, the Sponsor would struggle to find steady employment with the skills that he possesses in Korea’ such that it would be ‘career ending’ for him and ‘[h]e would be forced to sell all his assets in Australia for them to be able to live and maintain a secure lifestyle in Korea,’ causing him ‘severe stress, as everything he has worked for in life would be put at risk’.

30. It was also submitted that the sponsor claims that his two previous sponsorships ‘were broken for no fault of his’ and details were given about the sponsor’s explanation of why each of these previous relationships ended.

31. The parties submitted a number of documents in support of these submissions, namely: statutory declarations by the sponsor and the applicant, both made on 1 August 2021; copy of the registered relationship certificate; evidence of joint ownership of property; home loan statements; evidence of the previous joint ownership of a business; joint bank statements; photographs of the couple, including with others and complete with annotations and evidence of the secondary applicant’s schooling.

32. The Tribunal accepts the submissions of 3 September 2021 and gives weight to the evidence in support of those submissions.

33. No further submissions or evidence has been submitted in the subsequent years. However, in late July 2023, when the Tribunal last asked the representative to confirm the parties’ current contact details, the representative replied with the information requested, including details that they remain living at the same property address.  

34. At the time of this decision, there is no information before the Tribunal to suggest that the parties’ circumstances have changed in any important respect from September 2021.

35. Accordingly, pursuant to reg 1.20J(2), the Tribunal is satisfied that, at the time of this decision, there are compelling circumstances affecting the sponsor. In addition, there is no information before the Tribunal which suggests that the matters in reg 1.20KA, reg 1.20KB or reg 1.20KC prevent approval. The Tribunal is of the view that the sponsorship should be approved.

36. In these circumstances, the Tribunal finds that, at the time of this decision, the requirement in cl 820.221(4)(a) is met.

    CONCLUSION

37. As has been explained, on the evidence before the Tribunal, the Tribunal is satisfied that the requirements in cl 820.221(4)(a) and (b) are met. Accordingly, the Tribunal finds that the applicant meets the requirements of cl 820.221(4).

38. In these circumstances, the ability of the secondary visa applicant to satisfy the secondary criteria in cl 820.321(a) should be reconsidered.

39. Given the findings above, the appropriate course is to remit the application for the visas to the Minister to consider the remaining criteria for Subclass 820 visas.

    DECISION

40. 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 820.221(4) of Schedule 2 to the Regulations.

    Justine Clarke
    Member