Da Silva (Migration)

[2021] AATA 4909

Da Silva (Migration) [2021] AATA 4909 (23 December 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Jose Agostino Neves Da Silva

VISA APPLICANTS:  Ms Thi Thu Vu
Miss Kim Thuy Dinh Vu
Master Duc Huan Dinh

REPRESENTATIVE:  Ms Mary Boston (MARN: 1173820)

CASE NUMBER:  2012729

HOME AFFAIRS REFERENCE(S):          BCC2019/1806295

MEMBER:Brendan Darcy

DATE:23 December 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the applications for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 309 visa:

·cl 309.222 of Schedule 2 to the Regulations

Statement made on 23 December 2021 at 9:03am

CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Spouse (Provisional)) – sponsorship limitation – application made less than 5 years after previous sponsorship – limitation period now passed – members of family unit – 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)(b), Schedule 2, cls 309.222, 309.321

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 applicants Partner (Provisional) (Class UF) visas under s 65 of the Migration Act 1958 (Cth) (the Act). The applicants applied for the visas on 12 April 2019. The delegate refused to grant the visas on 3 August 2020.

2. At the time of the decision, the delegate made this refusal decision on the basis that evidence of the sponsor of this partner visa application had a previous sponsorship less than 5 years ago.

3. Regulations 1.20J, 1.20KA, 1.20KB and 1.20KC limit the Minister’s discretion to approve sponsorships.

4. Under these regulations limiting the Minister’s discretion to approve sponsorships, the delegate was not satisfied that the first named applicant met clause 309.222. Specifically, the first named applicant did not meet regulation 1.20J(1)(b) for the grant of the visa under the Migration Regulations 1994 (Cth) (the Regulations).

5. At the time of lodgement for this Partner visa application on 12 April 2019, the Departmental records indicated that the sponsor had a previous sponsorship less than 5 years ago, lodged on 6 October 2016 and granted on 26 May 2017. Therefore, according to the delegate, regulation 1.20J(1)(b) was not met.

6. Under regulation 1.20J(2), the sponsorship may be approved if it is established that there are compelling circumstances affecting the sponsor.  According to the decision record, the applicants’ circumstances did not meet compassionate or compelling circumstance as prescribed by the Departmental policy.

7. On 11 August 2020, the applicants applied to have the delegate’s refusal decision not to grant the visas reviewed by the Tribunal.

8. At the time of making this decision, the Tribunal notes that with the passage of time it has been more than five (5) and two (2) months since the sponsor had a previous sponsorship.

9. The Tribunal has considered the information before it and the applicable legislative provisions. It finds that, for the purposes of consideration of r.1.20J, the Tribunal finds that a period of 5 years has now passed since that visa application was made.

10. On the evidence before the Tribunal the requirements of cl.309.222 are therefore now met.

11. In relation to the other applicants, their visas were refused on the contact that they do not satisfy clause 309.321 because they were not found to be persons to be members of the family unit of a person who satisfies the primary criteria.

12. However, on the basis of the satisfaction of the objective criteria in cl.309.222 and given the circumstances regarding the overall primary criteria for the first named applicant has yet to be made by the Department, the Tribunal considers the most appropriate course of action is to remit this application for a partner visa to the Minister to consider the remaining criteria for a Subclass 309 visa for each of the applicants.

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

    DECISION:

14. The Tribunal remits the applications for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 309 visa:

    ·cl 309.222 of Schedule 2 to the Regulations