Alwadi (Migration)

[2020] AATA 4223

Alwadi (Migration) [2020] AATA 4223 (8 October 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Maysa Jawher Ibrahim Alwadi

CASE NUMBER:  1815073

HOME AFFAIRS REFERENCE(S):          BCC2017/3454950

MEMBER:Kira Raif

DATE:8 October 2020

PLACE OF DECISION:  Sydney

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:

·Reg 1.20J for the purpose of cl.820.221 of Schedule 2 to the Regulations

Statement made on 08 October 2020 at 3:37pm

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – approval of sponsorship – sponsor previously sponsored for partner visa – previous relationship ended soon after grant of visa – five years now passed since previous sponsorship – no assessment of spousal relationship – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.20J, Schedule 2, cl 820.221

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 to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 21 September 2017 on the basis of her relationship with her sponsor. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.820.221 because the delegate did not approve the sponsorship pursuant to r. 1.20J. The applicant seeks review of the delegate’s decision.

3. No hearing was held in this case as the Tribunal was able to make a favourable decision on the material before it. The applicant was represented in relation to the review by her registered migration agent. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   Relevant law

4. At the time the application was made, 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 (the Regulations).

5. Clause 820.211 requires at the time of application, the applicant meets one of several alternative sub criteria. These include 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 r.1.03 of the Regulations).

6. 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.

7. Approval of sponsorship is subject to limitations contained in r.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 r.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 r.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 r.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.

   Should the sponsorship be approved?

8. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that the sponsor was previously sponsored for the Class UK visa in December 2013. The delegate found that less than five years passed since that approval. The delegate considered, but rejected, the grounds for the waiver of the sponsorship limitation.

9. It is notable, in the Tribunal’s view, that the sponsor’s relationship with his previous partner appears to have ended soon after he was granted the Partner visa. However, the genuineness of that relationship is not an issue before the present Tribunal.

10. The Tribunal finds that the limitation in r. 1.20J applies because the sponsor had been granted a relevant permission. There is nothing to suggest that the circumstances set out in r. 1.20J(4) apply in this case.

11. The relevant period prescribed by r. 1.20J(1)(b) is not less than 5 years since the date of making the application for the relevant permission. In the present case, the primary decision record indicates that the sponsorship took place in December 2013. Five years had passed in December 2018. There is nothing before the Tribunal to indicate that more than one other person has been granted a relevant permission. The Tribunal finds that r. 1.20J(1) and r. 1.20J is met.

12. Further, the applicant provided to the Tribunal evidence that she gave birth to a child of the relationship in November 2019. A copy of the child’s birth certificate is before the Tribunal. In the Tribunal’s view, the existence of an Australian citizen child from the applicant’s relationship with the sponsor constitutes a compelling circumstance that justifies the waiver of the sponsorship limitation. The Tribunal finds on that basis that r. 1.20J(2) is met and for that reason also, the applicant meets r. 1.20J

13. The Tribunal is satisfied that the sponsorship requirement in r. 1.20J has been met the time of this decision. As no assessment had been undertaken as to whether the applicant is the spouse of the sponsor, the Tribunal is not able to make a finding with respect to cl. 820.221.

    Conclusion

14. 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

15. 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:

    ·Reg. 1.20J for the purpose of cl.820.221 of Schedule 2 to the Regulations

    Kira Raif
    Senior Member