ANANNYA SHARMIN (Migration)

[2020] AATA 4881

ANANNYA SHARMIN (Migration) [2020] AATA 4881 (13 November 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs SYEDA ANANNYA SHARMIN

VISA APPLICANT:  Mr MOHAMMAD TOWFIQUE IMAM

CASE NUMBER:  1825029

DIBP REFERENCE(S):  BCC2017/4722212

MEMBER:Michael Cooke

DATE:13 November 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Partner (Provisional) (Class UF) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 309 (Partner (Provisional)) visa:

·cl.309.213 of Schedule 2 to the Regulations

·cl.309.222 of Schedule 2 to the Regulations

Statement made on 13 November 2020 at 12:08pm

CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – sponsorship time limit – compelling circumstances to waive requirement – sponsor’s previous marriage (after being sponsored) ended because of domestic violence – mental health – separation from applicant because of visa refusal and review application – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.20J(2), Schedule 2, cls 309.213, 309.222

CASE
Babicci v MIMIA [2004] FCA 1645, [2005] FCAFC 77

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 Immigration on 24 August 2018 to refuse to grant the visa applicant a Partner (Provisional) (Class UF) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 11 December 2017 based on his relationship with his sponsor, the review applicant. At that time, Class UF contained only one subclass: Subclass 309 (Partner (Provisional). The criteria for the grant of this visa are set out in Part 309 of Schedule 2 to the Migration Regulations 1994 (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.

3. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.309.213 and cl.309.222 because his sponsor (the review applicant) did not comply with the minimum time that must lapse between each sponsorship - at time of application. The review applicant was also found not to have submitted any ‘compelling circumstances’ which could ground waiver of the above requirement as set out in reg.1.20J(2).

4. Subsequently the applicant has alerted the Tribunal to a Domestic Violence Final Order granted to her against her previous spouse. She has also provided information from her psychologist regarding ongoing mental health issues caused by and related to her former marriage and exacerbated by the passage of time between her visa refusal and the resolution of this Tribunal review.  She has also provided additional financial information pursuant to reg.1.15A(3) as evidence of spousal financial pooling.

5. The review applicant was represented in relation to the review.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is whether the applicant has submitted any ‘compelling circumstances’ which can ground waiver of the requirements found in reg.1.20J and the sponsorship approved.

   SPONSORSHIP (cl.309.213)

   Are the sponsorship requirements met?

8. Clause 309.213 requires that the visa applicant is sponsored by the review applicant, where such person has turned 18; or where they have not, by the review applicant’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). At the time of decision, this sponsorship must have been approved and still be in force.

9. For visa applications made on or after 18 November 2016 the sponsor must also have consented for the Department to disclose to each sponsored 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.309.222.

10. 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 in relation to sponsors convicted of a relevant offence who have a significant criminal record where the visa application was made on or after 18 November 2016.

    Findings and reasons in relation to whether cl.309.213 is met:

11. The Tribunal finds that r.1.20J prevented approval of the sponsorship because it imposes a minimum time that must lapse between each sponsorship. Under r.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. 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 5 years must have passed since the date of the earlier visa application. The review applicant sponsor was granted a visa as a result of being sponsored previously but her marriage demised from domestic/family violence. These requirements apply unless the Minister, or the Tribunal on review, is satisfied there are ‘compelling circumstances’ affecting the sponsor: r.1.20J(2).

12. 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 (reg.1.20J) should be waived’: Babicci v MIMIA [2005] FCAFC 77.

13. The applicant has provided the Tribunal with additional information on the reasons that occasioned the demise of her previous marriage principally being the domestic violence perpetrated by her former husband. She has submitted a Domestic Violence Final Order to that effect. She has also apparently suffered ongoing mental health issues as a result of the behaviour of her former spouse. She has consulted a psychologist who has presented a diagnosis of her condition to the Tribunal. She has also had to bear the lengthy separation from her new husband occasioned by the refusal of the visa to her and the time which has elapsed between that act and the resolution of her Tribunal review.

14. The Tribunal is satisfied from its perusal of the additional information - which was not available to the delegate - that 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 (reg.1.20J) should be waived’: Babicci v MIMIA [2005] FCAFC 77.

15. The Tribunal finds that based on the rubric in Babicci the sponsor’s circumstances as elaborated by her are ‘compelling circumstances’ pursuant to reg.1.20J(2) and can ground waiver of reg.1.20J.

16. The Tribunal finds that the sponsor does now meet cl.309.213 as the sponsorship has now been approved and is still in force.

17. The Tribunal finds that the applicant was over 18 at time of application and the sponsor has also consented for the Department to disclose to each sponsored 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 and thus also meets cl.309.222.

18. On the evidence before the Tribunal the requirements of cl.309.213 and cl.309.222 are met.

19. 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 309 visa.

    DECISION

20. The Tribunal remits the application for a Partner (Provisional) (Class UF) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 309 (Partner (Provisional)) visa:

    ·cl.309.213 of Schedule 2 to the Regulations

    ·cl.309.222 of Schedule 2 to the Regulations

    Michael Cooke
    Senior Member