Faraj (Migration)

[2019] AATA 3810

Faraj (Migration) [2019] AATA 3810 (2 July 2019)

WRITTEN STATEMENT OF DECISION

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Maher Faraj

VISA APPLICANT:  Mrs Maha Tajali

CASE NUMBER:  1729418

DIBP REFERENCE(S):  OSF2017/015455

MEMBER:Nicholas McGowan (Melbourne)

DATE: 02 July 2019

Decision:Regulation 1.20J(b): clause 309.222 are met.

CATCHWORDS
MIGRATION  – refusal – Partner (Provisional) (Class UF) visa - subclass 309 – whether sponsorship requirements had been met – sponsored two previous partners – sponsorship limitations waived –genuine and continuing relationship –compelling circumstances – entirely consistent and reliable evidence – decision under review remitted

LEGISLATION
Migration Regulations 1994,r 1.20, Schedule 2, cl 309.222

Reasons/Findings:
The visa applicant is a Moroccan citizen living in Morocco, who lodged a valid temporary partner visa application on 23 June 2017 based on her relationship with her Australian citizen spouse, Mr Maher Faraj. Under clause 309.222 of the Migration Act and regulations ‘sponsorship’ must be approved by the Minister. The applicant has declared she has never married and has no children. The sponsor has had two previous marriages and two daughters from his first. Both of his previous partners were sponsored to migrate to Australia. Relevantly to this case, Regulation 1.20J has the effect of limiting a person to only two successful partner sponsorships, making the sponsor in this case ineligible to sponsor a third partner. In addition, as the sponsor’s last ‘sponsorship’ was successfully granted on 16 July 2014 (for his second wife), Regulation 1.20J(b) has the effect in this case of preventing the sponsor from sponsoring any other partner to migrate to Australia for a five year period. Having said all that, Regulation 1.20J(2) makes it clear a sponsor may apply for the sponsorship limitations to be waived if the minister (tribunal in this instance) is satisfied there are ‘compelling reasons’ affecting the sponsor. In this case, the sponsor has provided ample documentation which clearly outlines his medical history. This is relevant because what is clear is that travel for the sponsor has become highly problematic since his diagnosis and past treatment for DVT. This is one factor. Importantly, this tribunal has considered the nature of his past sponsorships and the cause for each termination. It has done this because ostensibly the law seeks to prevent abuse of the migration visa programme. However, in this instance, this tribunal has been satisfied beyond doubt that the sponsor had a genuine first marriage and that it ended as many do. They had two daughters of this relationship, who live with their father today. His ex-wife remains onshore. It is likewise satisfied that the sponsor’s second marriage ended after what the sponsor perceived to be a lack of commitment from his partner, and possibly even unfaithfulness on her part, in thought if not acts. They had no children of this relationship. This ex-wife returned to Morocco permanently. Insofar as the sponsor is concerned, his account of each relationship and his own circumstances has been consistent, logical and spontaneous. In other words, this tribunal has found his oral and written evidence to be entirely consistent and reliable. It follows, that in his specific circumstances, this tribunal believes his current relationship is genuine, and in this case that sincere motivation has alone singularly compelled this tribunal to apply the waiver. This tribunal is also mindful that in so doing, within a matter of days the sponsor would have met the regulation: 1.20J(b), which until now has additionally prevented his sponsoring his current partner. Given the above, the appropriate course is to now remit the visa applicant’s temporary partner application to the minister with the finding the sponsorship limitations have been waived, and further consider the application for the grant of the visa.

Statement made on 02 July 2019 at 8:49am