Dhindsa (Migration)

[2019] AATA 5650

Dhindsa (Migration) [2019] AATA 5650 (19 September 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Simardeep Singh Dhindsa

VISA APPLICANT:  Mrs Gurpreet Kaur Dhindsa

CASE NUMBER:  1722326

DIBP REFERENCE(S):  OSF2016/050781

MEMBER:Adrienne Millbank

DATE:19 September 2019

PLACE OF DECISION:  Brisbane

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(1) of Schedule 2 to the Regulations

·cl.309.222(1) of Schedule 2 to the Regulations

Statement made on 19 September 2019 at 12:36pm

CATCHWORDS

MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 Partner (Provisional) – approval of sponsorship – five years had not elapsed since the review applicant had been sponsored – review applicant’s previous application was withdrawn – five years have elapsed during application review – review applicant has never held a Parent visa – decision under review remitted       

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 1; Schedule 2, cls 309.213, 309.222; rr 1.03, 1.20

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 22 August 2017 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 20 July 2016 on the basis of her relationship with her 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.309.222, which requires that a sponsorship has been approved. Regulations 1.20J, 1.20KA and 1.20KB, and 1.20KC limit the Minister’s discretion to approve sponsorships, and the Delegate found that the sponsor did not meet r.1.20J. Five years had not elapsed from the date of application for a previous sponsorship, and the Delegate was not satisfied that there were sufficient compelling circumstances that would affect the sponsor to waive the sponsorship limitation.

4. The review applicant appeared before the Tribunal on 10 September 2019 to give evidence and present arguments. The Tribunal also received oral evidence from his cousin.

5. The review applicant was represented in relation to the review by his registered migration agent, who did not attend the hearing.

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 sponsorship should be approved.

   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 to the Regulations).

9. The Tribunal is satisfied on the information before it that the review applicant is the claimed spouse of the visa applicant; is over the age of 18; and is an Australian citizen. Therefore, the visa applicant meets cl.309.213(1).

10. At the time of decision, this sponsorship must have been approved and still be in force. Approval of sponsorship is subject to limitations contained in Schedule 1 to the Regulations.

11. Regulation 1.20J 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 domestic 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).

12. The review applicant was sponsored for a Partner (Subclass 820) by his former spouse, in an application lodged on 25 October 2012 and granted on 11 April 2014. The review applicant withdrew his Partner (Subclass 801) visa application with his former spouse on 21 April 2016. However, sponsorship limitations still applied until 25 October 2017.

13. At hearing the review applicant advised that he obtained a Regional Sponsored Migration visa. He stated that he did not realise when he and his current wife lodged the application subject to this review that sponsorship limitations applied to sponsored as well as sponsoring partners. He confirmed that he has not applied to sponsor or to be sponsored for any other partner visas.

14. Five years have now elapsed since the review applicant was sponsored for a Partner visa by his former spouse. The limitation in r.1.20J no longer applies.

15. The Tribunal has considered whether other Regulations prevent approval. As the application was lodged on 20 July 2016 the sponsorship could be subject to 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.

16. There is no information before the Tribunal to indicate that the review applicant has ever held a Parent visa, and the review applicant confirmed at hearing that he has not. The review applicant also confirmed at hearing that he has not been charged with or convicted of any relevant offences.

17. Approval of the sponsorship is not limited by the relevant Regulations. Therefore, the applicant meets cl.309.222(1).

18. On the evidence before the Tribunal the requirements of cl.309.213(1) and cl.309.222(1) 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(1) of Schedule 2 to the Regulations

    ·cl.309.222(1) of Schedule 2 to the Regulations

    Adrienne Millbank
    Member