Dang (Migration)

[2024] AATA 137

Dang (Migration) [2024] AATA 137 (23 January 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Tram Thi Diem Dang

REPRESENTATIVE:  Mr Tung Nguyen (MARN: 1575839)

CASE NUMBER:  2118143

HOME AFFAIRS REFERENCE(S):          BCC2021/1246207

MEMBER:Cheryl Cartwright

DATE:23 January 2024

PLACE OF DECISION:  Melbourne

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 820.221(4) of Schedule 2 to the Regulations

Statement made on 23 January 2024 at 2:50pm

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – sponsorship limit – application made within 5 years of previous sponsorship – 5 years now passed – decision made without hearing necessary – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 360(2)(a)
Migration Regulations 1994 (Cth), rr 1.03, 1.20J(1)(b), 1.20KA, Schedule 2, cl 820.221(4)

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 (Cth) (the Act).

2. The applicant applied for the visa on 15 June 2021 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.

3. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl 820.221(4) because the application is subject to a sponsorship limitation under Regulation 1.20J. The sponsor of the applicant had lodged a previous sponsorship on 3 November 2017, which is less than five years before the date of the delegate’s decision which was made on 23 November 2021; therefore reg 1.20J(1)(b) was not met.

4. On 2 December 2021 the Tribunal received an application for review of the decision. Pursuant to s 360(2)(a) of the Act and based on the material before it, the Tribunal considered that it should decide the review in the applicant’s favour. The Tribunal cancelled the hearing that was scheduled for 25 January 2024.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in the present case is whether the sponsor of the applicant meets the requirements of cl 820.221(4) which requires the sponsorship to be approved by the Minister in accordance with reg 1.20J(1). At most, a person may enter into two approved spouse, de facto partner, interdependent partner or prospective spouse sponsorships, as stated by reg 1.20J(1)(a). However, if reg 1.20J(1)(a) is met, the application for that single previous sponsorship must have been lodged not less than five years before the application for the second application, as required by reg 1.20J(1)(b).

7. The sponsor in this case had lodged an application for a partner visa (subclass 820) on 3 November 2017, which is less than five years before the date of the delegate’s decision which was made on 23 November 2021. Therefore reg 1.20J(1)(b) was not met.

   Is the applicant sponsored?

8. Clause 820.211 requires that, 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 reg 1.03 of the Regulations).

9. 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.

10. Approval of sponsorship is subject to limitations contained in reg 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 reg 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 reg 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 reg 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.

11. At the time of application, the applicant was sponsored by a sponsor who was over 18 years of age and who is an Australian citizen. A copy of the sponsor’s birth certificate is on the Department’s file. At most, a person may enter into two approved spouse, de facto partner, interdependent partner or prospective spouse sponsorships. The sponsor, in this case, has not sponsored more than two partner visa applications; therefore reg 1.20J(1)(a) is met.

12. The sponsor had married his first wife on 10 October 2017 and, as mentioned, was the sponsor for her application for a partner visa on 3 November 2017. They were divorced on 13 November 2019. The sponsor married the applicant in this review on 30 May 2021 and sponsored her application for a partner visa (subclass 820/801) on 15 June 2021. Reg 1.20J(1)(b) requires that not less than five years must have passed since the first application. The Tribunal notes that less than five years had passed from the date of the first application and the application which is under review and also notes that less than five years had passed from the date of the first application and the date of the delegate’s decision on that case, which was made on 23 November 2021.

13. The Tribunal notes that, at the time of this decision, the application for a partner visa that was made on 3 November 2017 was lodged more than five years before the date of this decision, 23 January 2024. Therefore, the requirement of reg 1.20J(1)(b) is met.

14. The Tribunal notes that the sponsor, in this case, remains the sponsor of the applicant; therefore cl 820.221(4) is met.

15. On the evidence before the Tribunal the requirements of cl 820.221(4) are met.

16. 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

17. 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 820.221(4) of Schedule 2 to the Regulations

    Cheryl Cartwright
    Member