Chang (Migration) - [2021] AATA 4312

Chang (Migration) [2021] AATA 4312 (28 October 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mrs Jin Chang
CASE NUMBER:  1820866
HOME AFFAIRS REFERENCE(S):          BCC2016/4257196
MEMBER:David Barker
DATE:28 October 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:
·cl.820.211(2)(c) of Schedule 2 to the Regulations
·Reg 1.20J for the purpose of cl.820.221 of Schedule 2 to the Regulations

Statement made on 28 October 2021 at 11:30am
CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – sponsorship limit – two previous sponsorships – long-standing and genuine relationship – compelling circumstances affecting sponsor – sponsor’s medical condition and applicant’s emotional support and contribution to sponsor’s business – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations, r 1.20J; Schedule 2, cl 820.211(2)(c), 820.221
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 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 (Cth) (the Act).
The applicant applied for the visa on 16 December 2016 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 (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.
The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.820.221(4) because they determined there were no compelling reasons to not apply the sponsorship limitations arising out of the finding that the sponsor had sponsored two previous partners for Partner visas.
The applicant appeared before the Tribunal on 28 September 2021 by videoconference to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
Background
The applicant is a national of China and is 48 years old. She first arrived onshore in January 2013 on a TU-573 Student visa, valid to August 2014. The applicant was previously married from September 2008 to January 2014, with that marriage ending by divorce. Her first husband did not accompany her when she came to Australia.…

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 Chang (Migration)

Details

AGLC: Chang (Migration) [2021] AATA 4312
Case: [2021] AATA 4312
Decision Date: 28 October 2021

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered an application for a Partner (Temporary) (Class UK) visa, Subclass 820. The applicant, a national of China, sought the visa with her sponsor, an Australian citizen. The central issue before the Tribunal was whether the sponsor met the sponsorship requirements under the Migration Regulations 1994, specifically concerning a limit on the number of previous sponsorships.

The legal issues before the Tribunal were whether the sponsor had exceeded the lifetime limit of two approved sponsorships for a Partner visa, and if so, whether there were compelling circumstances justifying an exception to this limit. Regulation 1.20J of the Migration Regulations 1994 imposes a limit of two approved sponsorships in a lifetime and requires a five-year period to have elapsed since the date of an earlier visa application if there has been one previous sponsorship. An exception to these requirements may be granted if the Minister, or the Tribunal on review, is satisfied that compelling circumstances affect the sponsor.

The Tribunal found that the sponsor had previously sponsored two partners for Partner visas, both of which resulted in the grant of permanent visas. This meant the sponsor had reached the limit of two sponsorships under Regulation 1.20J. However, the Tribunal considered the compelling circumstances presented, including the sponsor's medical condition and the applicant's significant emotional support and contribution to the sponsor's business. The Tribunal concluded that these circumstances warranted an exception to the sponsorship limit.

Consequently, the Tribunal remitted the application for reconsideration by the Minister, with a direction that the applicant met the criteria under clause 820.211(2)(c) and Regulation 1.20J for the purpose of clause 820.221 of Schedule 2 to the Regulations.

Orders

Orders of the court

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Background

Background to the litigation

For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.Background The applicant is a national of China and is 48 years old. She first arrived onshore in January 2013 on a TU-573 Student visa, valid to August 2014. The applicant was previously married from September 2008 to January 2014, with that marriage ending by divorce. Her first husband did not accompany her when she came to Australia. There were no children from that relationship. The applicant was granted a subsequent TU-573 visa, valid to August 2015, and in October 2015, a VC-485 Temporary Graduate Work visa, valid until October 2017. Form 80 Personal particulars for assessment, completed by the applicant in association with her Partner visa application indicates that she was employed as a teacher in Fushuan City in China from July 1995 to January 2013 and in Australia, from March 2013 to the date of visa application, as a bookkeeper for Connect Xu Electrical Pty Ltd. The sponsor arrived in Australia in 1989 and became an Australian citizen by grant in 2000. He was born in China and is 61 years old. In the parties’ marriage certificate the sponsor is described as a self-employed electrical mechanic. The sponsor has previous relationships. The sponsor was first married, from 23 August 1986 to 16 August 2000, with that marriage ending by divorce. The applicant successfully sponsored his first wife for a Partner visa, resulting in the grant of a permanent Partner visa on 29 January 1998. This is not contested by either the sponsor or applicant. The sponsor’s second marriage was from 4 November 2000 to 24 July 2014, with that marriage ending by divorce. The applicant successfully sponsored his second wife for a Partner visa, with her being subsequently granted a Permanent Partner visa on 18 May 2001. This is not contested by either the sponsor or applicant. The visa application states the parties first met face to face in September 2012 in Singapore and committed to a relationship with each other to the exclusion of all others in May 2013. At hearing the parties gave evidence that they initially connected online at a time they were separated, but not formally divorced from their previous partners. They were married in Parramatta, NSW in July 2016.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in the present case is whether the applicant’s sponsor meets the sponsorship requirements. 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). 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).

Evidence

Evidence Before The Court

The visa application states the parties first met face to face in September 2012 in Singapore and committed to a relationship with each other to the exclusion of all others in May 2013. At hearing the parties gave evidence that they initially connected online at a time they were separated, but not formally divorced from their previous partners. They were married in Parramatta, NSW in July 2016.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in the present case is whether the applicant’s sponsor meets the sponsorship requirements. 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). 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). On the basis of the available information the Tribunal is satisfied the applicant meets the criteria established in cl.820.211(2)(c), because at the time of application the applicant was sponsored by an Australian citizen over the age of 18 years. 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. 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. 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 (or entry permit) or a visa (or entry permit) granted on the basis of the family 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: r.1.20J(2).

Decision

Reasons for decision

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 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:·cl 820.211(2)(c) of Schedule 2 to the Regulations·Reg 1.20J for the purpose of cl 820.221 of Schedule 2 to the RegulationsDavid BarkerMember

Ratio Decidendi

Legal Principle Established

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