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

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).
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.
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.
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).
The text of cl 820.221(4) is set out…

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 2002289 (Migration)

Details

AGLC: 2002289 (Migration) [2023] AATA 4513
Case: [2023] AATA 4513
Decision Date: 28 November 2023

CaseChat Overview and Summary

This matter concerned an application for a Partner (Temporary) (Class UK) visa, Subclass 820. The applicant sought review of a decision concerning their eligibility for the visa. The core of the dispute revolved around whether the applicant met the requirements of clause 820.221(4) of Schedule 2 to the Migration Regulations 1994, specifically concerning the approval and currency of the sponsorship.

The Tribunal was required to determine two primary issues. Firstly, whether the sponsorship of the visa had been approved and remained in force at the time of the decision, as stipulated by clause 820.221(4)(a). Secondly, the Tribunal had to ascertain whether the sponsor had consented to the Department disclosing any convictions for relevant offences to the visa applicant, as required by clause 820.224(b). The Tribunal also considered whether the applicant met the sponsorship requirements under clause 820.211(2)(c) at the time of application.

The Tribunal found that the sponsor had provided the requisite consent for disclosure of convictions, satisfying clause 820.224(b). It was also satisfied that the sponsor met the age and sponsorship requirements under clause 820.211(2)(c) at the time of the visa application. However, the Tribunal noted that the approval of sponsorship is subject to limitations outlined in regulations 1.20J, 1.20KA, 1.20KB, and 1.20KC, which address sponsorship limits, waiting periods after previous Parent visa sponsorships, and restrictions related to criminal convictions. The Tribunal concluded that it lacked sufficient information to determine whether the sponsorship had been approved and remained in force, particularly in light of these potential limitations.

Consequently, the Tribunal remitted the applications for Partner (Temporary) (Class UK) visas to the Minister for reconsideration. The Tribunal directed that the first-named applicant met the criteria under clause 820.221(4) of Schedule 2 to the Regulations, but further consideration was required regarding the remaining criteria for the Subclass 820 visa.

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 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)). 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. The Tribunal turns now to consideration of cl 820.224(a).Is the applicant sponsored? 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). 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. 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). 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. The key issue for determination is whether the sponsorship has been approved and is still in force. 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.

Decision

Reasons for decision

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 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 ClarkeMember

Ratio Decidendi

Legal Principle Established

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