Ba (Migration)

[2021] AATA 1251

Ba (Migration) [2021] AATA 1251 (25 January 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Lijuan Ba

CASE NUMBER:  1905683

HOME AFFAIRS REFERENCE(S):          BCC2018/469579

MEMBER:Russell Matheson

DATE:25 January 2021

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 25 January 2021 at 3:32pm

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – sponsorship limitation – five-year limitation expired – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 360
Migration Regulations 1994 (Cth), r 1.20J; Schedule 2, cls 820.211, 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 29 January 2018 on the basis of her relationship with her 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 (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.820.211(2)(c) because the sponsorship has not been approved. The applicant seeks review of the delegate’s decision and lodged an application for review on 11 March 2019.

4. The primary decision record, a copy of which the applicant presented to the Tribunal, indicates that the delegate was not satisfied the applicant met cl. 820.211(2)(c). However, that provision requires the applicant to be sponsored. In this case, the applicant was sponsored, and no assessment was undertaken whether the applicant was the spouse of the sponsoring partner. The delegate determined not to approve the sponsorship pursuant to r. 1.20J. The relevant provision that relates to the approval of sponsorship is cl. 820.221. In the Tribunal’s view, that is the more appropriate provision, given the delegate’s determination not to approve the sponsorship.

5. In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the applicant based on the material before it, pursuant to s.360(2)(a) of the Act.

   Relevant law

6. 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).

7. 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).

8. 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.

9. 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?

10. The primary decision record indicates that the sponsor had previously sponsored another person for a Partner visa. That application was made on 29 October 2015 and the sponsorship was subsequently approved. 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.

11. The Tribunal finds that the limitation in r.1.20J applies because another person had been granted a relevant permission as the spouse of the sponsor on the basis of a sponsorship or nomination by the sponsor. There is nothing to suggest that the circumstances set out in r. 1.20J(4) apply in this case.

12. 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 application for the relevant permission was made in October 2015. Five years had passed in October 2020. The Tribunal is satisfied that at the time of this decision, r.1.20J(1)(b) is met.

13. There is nothing before the Tribunal to indicate that more than one other person has been granted a relevant permission. There is nothing to suggest that the sponsor was granted a relevant permission as the spouse or de facto partner of another person. The Tribunal finds that r.1.20J(1) is met. The Tribunal is satisfied that the sponsorship requirement in r.1.20J has been met the time of this decision.

14. 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

15. 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

16. 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

    Russell Matheson
    Member