Dinh (Migration)

[2018] AATA 3019

Dinh (Migration) [2018] AATA 3019 (12 July 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Thi Phu Dinh

VISA APPLICANT:  Mr Thanh Thiet Doan

CASE NUMBER:  1608019

DIBP REFERENCE(S):  OSF2015/070570

MEMBER:Michael Cooke

DATE:12 July 2018

PLACE OF DECISION:  Sydney

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 of Schedule 2 to the Regulations

·cl.309.222 of Schedule 2 to the Regulations

Statement made on 12 July 2018 at 12:13pm

CATCHWORDS
Migration – Partner (Provisional) (Class UF) visa – Subclass 309 (Spouse (Provisional)) – Sponsorship limitation – Long-term relationship – Compelling circumstances – Significant detriment from absence of spouse – Witness evidence – Decision under review remitted

LEGISLATION
Migration Act 1958 (Cth). s 65
Migration Regulations 1994 (Cth), rr 1.03, 1.15A, 1.20J, Schedule 2 cls 309.213, 309.222

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 19 May 2016 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 30 June 2015 on the basis of his relationship with his 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. Relevantly to this matter the primary criteria include cl.309.213.

3. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.309.213 because she was affected by the sponsorship limitation in reg.1.20J.

4. The applicant had forwarded through her representative a comprehensive rebuttal of the principal adverse findings in the decision. She has also provided copious additional information pursuant to reg.1.15A(3) (T12, ff.59-75).

5. The review applicant was represented in relation to the review by her registered migration agent.

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 limitation in reg.1.20J should be waived.

   SPONSORSHIP (cl.309.213)

   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 of the Regulations).

9. At the time of decision, this sponsorship must have been approved and still be in force. For visa applications made on or after 18 November 2016 the sponsor must also have consented for the Department to disclose to each sponsored 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.309.222. 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 in relation to sponsors convicted of a relevant offence who have a significant criminal record where the visa application was made on or after 18 November 2016.

   Findings and reasons in relation to:

10. The Tribunal has had the benefit of additional inform which has clarified and/or rebutted the adverse findings of the delegate. The sponsoring partner (the sponsor) has been and has established to the Tribunal’s satisfaction that she has been in a long-term relationship with the applicant dating back to 2011. They have subsequently married  and the applicant returned to Vietnam when the sponsor has had regular trips to visit and co-habit with him.

11. The sponsor has dependent children from a prior relationship who regard the applicant as their step-father and wish to be re-united with him in Australia.

12. The sponsor has been unlucky in love and has been a single mother for a considerable time. Her children are adults but live at home and are students. She has suffered significant detriment from the absence of her spouse and the lengthy review process.

13. The Tribunal having read and absorbed the additional information (including evidence from a doctor and community social worker who the sponsor approached) is satisfied that there are ‘compelling circumstances affecting the sponsor’ that can ground waiver of the sponsorship limitation found in reg.1.120J(1)(a).

14. The Tribunal finds that as at the time of application the applicant was sponsored by their sponsoring spouse then cl.309.213 is now met.

15. As the Tribunal has decided to grant waiver of reg.1.20J pursuant to reg.1.20J(2) it finds that the sponsorship is now approved and cl.309.222 is also met.

16. On the evidence before the Tribunal the requirements of cl.309.213 and cl.309.222 are met.

17. 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

18. 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 of Schedule 2 to the Regulations

    ·cl.309.222 of Schedule 2 to the Regulations

    Michael Cooke
    Senior Member