Garzon Cardona (Migration)

[2023] AATA 4231

Garzon Cardona (Migration) [2023] AATA 4231 (7 September 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Juan Pablo Garzon Cardona

CASE NUMBER:  2305182

HOME AFFAIRS REFERENCE(S):          BCC2022/4545539

MEMBER:Meena Sripathy

DATE:7 September 2023

PLACE OF DECISION:  Sydney

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 purposes of cl 820.221 of Schedule 2 to the Regulations

Statement made on 07 September 2023 at 4:23pm

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – sponsorship limitation – five-year limitation – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 360
Migration Regulations 1994 (Cth), r 1.20J; Schedule 2, cl 820.211

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 30 October 2022 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. 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 delegate found that r.120J applied to limit sponsorship and the delegate was not satisfied there were compelling reasons to waive this requirement.

4. In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the visa applicant on the basis of the material before it, pursuant to s 360(2)(a) of the Act.

5. The issue in the present case is whether r 1.20J applies to limit sponsorship, and if so whether it can be waived.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Does regulation 1.20J apply to limit sponsorship?

7. 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 reg 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 5 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: reg 1.20J(2).

8. 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: cl 820.221.  Approval of sponsorship is subject to the limitations contained in reg 1.20J of the Regulations, among other sponsorship limitation regulations (not presently relevant).

9. At the time the application was lodged on 30 October 2022, Departmental records indicated that the sponsor had previously been sponsored for a Partner visa.  That application was made on 26 August 2018. The delegate found that, as at the time of the delegate’s decision, less than 5 years had passed since that previous application was made and therefore, regulation 1.20J(1)(c) was not met.  The applicant was invited to provide information as to the compelling reasons that should be considered to have the sponsorship limitation waived, and submitted information in response.

10. The delegate considered this information but was not satisfied that compelling circumstances to warrant the waiver provision at Regulation 1.20J(2) had been established  and refused the application on the basis that cl.820.221(4) was not met.

11. Since the matter has been before the Tribunal, the 5 year period set out in r.1.20J(1)(b) has passed, as of 26 August 2023. 

12. Therefore the Tribunal is satisfied that the sponsorship is no longer limited by r.1.20J. Regulation 1.20J therefore is met for the purposes of cl.820.221.  

13. The Tribunal notes that no assessment of the partner relationship under r.820.211(2) or cl.820.221 had yet been made at the primary decision making stage, and in these circumstances, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 820 visa.

14. 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

15. 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 purposes of cl 820.221 of Schedule 2 to the Regulations

    Meena Sripathy
    Member