Dutt (Migration)

[2021] AATA 2992

Dutt (Migration) [2021] AATA 2992 (30 June 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Avi Kishan Dutt

CASE NUMBER:  1807844

HOME AFFAIRS REFERENCE(S):          BCC2017/1690851

MEMBER:John Longo

DATE:30 June 2021

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:

·Regulation 1.20J for the purpose of cl.820.221 of Schedule 2 to the Regulations.

Statement made on 30 June 2021 at 10:41am

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – sponsorship limitation – five-year limitation – waiver of the sponsorship limitation – compelling circumstances affecting the sponsor – given birth to two children from the relationship – sole income earner while the sponsor completes tertiary studies – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.20J; Schedule 2, cl 820.221

CASES
Babicci v MIMIA [2004] FCA 1645
Babicci v MIMIA [2005] FCAFC 77

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 11 May 2017 on the basis of his relationship with his 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.

3. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.820.221 because the delegate did not approve the sponsorship pursuant to r.1.20J of the Regulations. The applicant seeks review of the delegate’s decision.

4. No hearing was held in this case as the Tribunal was able to make a favourable decision on the material before it. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. Clause 820.211 requires at the time of application, the applicant meets one of several alternative subcriteria. These include cl.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).

6. 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.

7. 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 of the Regulations which sets a limit on the period before which certain Partner visa holders can sponsor another person for a Partner visa. There are further limits imposed by r.1.20KB of the Regulations 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 of the Regulations 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.

   Should the sponsorship be approved?

8. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that the sponsor previously sponsored for the Subclass 100 visa in June 2014. The delegate found that less than five years had passed since that approval. The delegate considered, but rejected, the grounds for the waiver of the sponsorship limitation.

9. It is notable, in the Tribunal’s view, that the sponsor’s relationship with her previous partner appears to have ended soon after he was granted the Partner visa. However, the genuineness of that relationship is not an issue before the present Tribunal. The Tribunal finds that the limitation in r.1.20J applies because the sponsor had been granted a relevant permission.

10. The relevant period prescribed by r.1.20J(1)(b) is not less than five years since the date of making the application for the relevant permission. In the present case, the primary decision record indicates that the sponsorship took place in June 2014. Five years had not passed in May 2017 when this application was made.

11. Regulation 1.20J of the Regulations 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 expression ‘compelling circumstances’ is not defined in the legislation. The Tribunal must consider whether the circumstances are such that they evoke interest or attention in a powerfully irresistible way (Babicci v MIMIA [2004] FCA 1645) or are ‘so powerful that they lead the [Tribunal] to make a positive finding that the [provision] should be waived’: Babicci v MIMIA [2005] FCAFC 77.

13. The applicant provided to the Tribunal evidence that the sponsor has given birth to two children from the relationship in April 2018 and January 2020 respectively. A copy of the children’s birth certificates is before the Tribunal. In the Tribunal’s view, the existence of Australian citizen children from the applicant’s relationship with the sponsor constitutes a compelling circumstance that justifies the waiver of the sponsorship limitation.

14. In addition, the written submissions to the Tribunal indicate that the applicant has also provided financial support to the sponsor and her son from a previous relationship, as well as the children of their relationship. The submissions indicate that the applicant is the sole income earner while the sponsor completes her tertiary studies. In the Tribunal’s view, this constitutes a further compelling circumstance that justifies the waiver of the sponsorship limitation.

15. The Tribunal finds on the basis of the circumstances above that r.1.20J(2) is met and for that reason, the applicant meets r.1.20J of the Regulations.

16. The Tribunal is satisfied that the sponsorship requirement in r.1.20J has been met at the time of this decision. As no assessment had been undertaken as to whether the applicant is the spouse of the sponsor, the Tribunal is not able to make a finding with respect to cl.820.221.

    Conclusion

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 820 visa.

    DECISION

18. 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:

    · Regulation 1.20J for the purpose of cl.820.221 of Schedule 2 to the Regulations.

    John Longo
    Member

    
    

    ATTACHMENT - Extract from Migration Regulations 1994

    Regulation 1.20J

    Limitation on approval of sponsorships--spouse, partner, prospective marriage and interdependency visas

    (1AA) This regulation applies in relation to an application for:

    (b) a Partner (Provisional) (Class UF) visa; or

    (c) a Prospective Marriage (Temporary) (Class TO) visa; or

    (e) an Extended Eligibility (Temporary) (Class TK) visa; or

    (f) a Partner (Temporary) (Class UK) visa.

    (1) Subject to subregulations (2) and (3), if a person applies for a visa mentioned in subregulation (1AA) as the spouse, de facto partner or prospective spouse of the sponsor, the Minister must not approve the sponsorship of the applicant unless the Minister is satisfied that:

    (a) not more than 1 other person has been granted a relevant permission as:

    (i) the spouse, de facto partner or prospective spouse of the sponsor on the basis of a sponsorship or nomination; or

    (ii) a person who ceased a relationship of a kind mentioned in subparagraph (i) with the sponsor after the person, or another person mentioned in the prescribed criteria for the visa, had suffered family violence committed by the sponsor; and

    (b) if another person has been granted a relevant permission in the circumstances referred to in paragraph (a)--not less than 5 years has passed since the date of making the application for that relevant permission; and

    (c) if the sponsor was granted a relevant permission as the spouse, de facto partner or prospective spouse of another person on the basis of a sponsorship or nomination--not less than 5 years has passed since the date of making the application for that relevant permission.

    (1A) In subregulation (1):

    "relevant permission " means:

    (a) in relation to an application for a visa referred to in subregulation (1AA) made during the period from 1 November 1996 to 30 June 1997 (inclusive)--a visa; and

    (b) in relation to an application for a visa referred to in subregulation (1AA) made on or after 1 July 1997--permission (other than a visa or entry permit) granted under the Act to remain indefinitely in Australia, a visa or an entry permit.

    (2) Despite subregulation (1), the Minister may approve the sponsorship of an applicant for a visa if the Minister is satisfied that there are compelling circumstances affecting the sponsor.