Ge (Migration)

[2021] AATA 4908

Ge (Migration) [2021] AATA 4908 (23 December 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Weiyong Ge

CASE NUMBER:  2005540

HOME AFFAIRS REFERENCE(S):          BCC2018/684260

MEMBER:Brendan Darcy

DATE:23 December 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 820 visa:

·cl 821.211 of Schedule 2 to the Regulations

Statement made on 23 December 2021 at 12:43pm

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Spouse) – sponsorship limitation – application made less than 5 years after sponsor’s permanent visa granted – limitation period now passed – decision made without hearing necessary – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 360(2)(a)
Migration Regulations 1994 (Cth), r 1.20KA, Schedule 2, cl 820.211(2)(c)

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). The applicant applied for the visa on 9 February 2018. The delegate refused to grant the visa on 17 March 2020.

2. Subclause 820.211(2)(c) outlines sponsorship requirements and under Division 1.4B, regulation 1.20KA prescribes limitations on approving the sponsorship relating to partner and prospective marriage visa applicants by persons granted a permanent Contributory Parent category visa. Regulations 1.20J, 1.20KA and 1.20KB limit the Minister’s discretion to approve sponsorships.

3. The sponsor of this visa application under review, Lijuan Yao, was granted a Class CA Subclass 143 (Contributory Partner) visa on 24 December 2015.

4. Section 1.20KA of the Migration Act states sponsors who was granted permanent residency on or after 1 July 2009 are subject to a limitation preventing them from sponsoring an existing partner for an Australian Partner visa for a period of five (5) years from the date for the visa grant.

5. Five years has not passed since the grant of your sponsor’s permanent Contributory Parent category visa, which prevents them from being a sponsoring partner as defined in regulation 820.211(2)(c).

6. On 15 July 2019, the Department requested further information in relation to this combined partner visa application, specifically asking the applicant to provide compelling reasons as to why the sponsorship limitation should not apply to the sponsor’s Contributory Parent visa.

7. Under regulation 1.20KA(3) the limitation on sponsorship does not apply if the parties had compelling reasons, other than reasons relating to your financial circumstances, for:

   • not applying for the Contributory Parent visa at the same time as the proposed sponsor; or

   • applying for the Contributory Parent visa at the same time as the proposed sponsor but withdrawing your application before it was granted and there were compelling reasons for this withdrawal.

8. Neither the applicant nor anyone on the applicant’s behalf responded to the request for information.

9. On 17 March 2020, the delegate proceeded to make a decision on the basis that the sponsorship of this partner visa was affected by the 1.20KA limitation which prevents a sponsor (or the review applicant) from being a sponsoring partner.[1] 

   [1] (Prior to July 2009, a practise known as ‘split visa application’ allowed a couple to save a substantial sum of money if one partner migrated under the Contributory Parent category and the other partner migrated later through the Partner visa category. In doing this, a couple using the split visa application strategy, avoided paying the substantially higher 2nd Visa Application Charge for the secondary applicant nor paid the higher assurance of support (AoS) associated with a joint Contributory Parent visa application. As the purpose of the sponsorship limitation (Regulation 1.20KA) is to prevent abuse of the Contributory Parent category visa provisions, I must consider this when deciding whether or not to approve such a sponsorship.)

10. On 19 March 2020, the applicant validly applied to have the refusal decision reviewed by the Tribunal.

11. Since its constitution to this presiding Member, the Tribunal has considered the information before it and the applicable legislative provisions. It has almost exactly six (6) years since the sponsor was granted a Contributory Parent visa on 24 December 2015.

12. Accordingly, it finds that, for the purposes of consideration of r.1.20KA, a period of five (5) years has now passed since that visa application was made.

13. There is no evidence before the Tribunal that the applicant does not meet the rest of the criteria under cl.820.211.

14. On the evidence before the Tribunal, the requirements of cl.820.211 are therefore now met.

15. The Tribunal observes that the delegate refused the application only on the basis of the visa applicant not meeting cl.820.211 and did not undertake any assessment of the genuineness of the relationship between the visa applicant and sponsor.

16. On the basis of the satisfaction of the objective criteria in cl.820.211 and given the circumstances that a primary assessment of the genuineness of the relationship has yet to be made by the Department, the Tribunal considers the most appropriate course of action is to remit this application for a partner visa to the Minister to consider the remaining criteria for this combined Subclass 820/Subclass 801 visa application.

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

    DECISION

18. The Tribunal remits the application for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 820 visa:

    ·cl 820.211 of Schedule 2 to the Regulations

    Brendan Darcy
    Member