Hameed (Migration)

[2020] AATA 2843

Hameed (Migration) [2020] AATA 2843 (27 May 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Asif Hameed

VISA APPLICANT:  Mrs Sumaya Asif

CASE NUMBER:  1720030

DIBP REFERENCE(S):  BCC2017/113161

MEMBER:Stephen Conwell

DATE:27 May 2020

PLACE OF DECISION:  Melbourne

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 27 May 2020 at 12:23pm

CATCHWORDS
MIGRATION –Partner (Provisional) (Class UF) visa - subclass 309 – sponsorship limitations – grant of Student visa would not count as a ‘relevant permission’– restrictions for sponsorship doesn’t apply to the review applicant– decision under review remitted

LEGISLATION
Migration Act 1958, ss 5, 65, 360
Migration Regulations 1994, rr 1.03, 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 29 June 2017 to refuse to grant the visa applicant a Partner (Provisional) (Class UF) visa under s.65 of the Migration Act 1R958 (the Act).

2. The visa applicant applied for the visa on 10 January 2017 on the basis of her relationship with her 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.

3. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.309.222 of Schedule 2 to the Regulations because the delegate found that the review applicant did not meet the sponsorship limitations in reg.1.20J(1)(c) and there were no compelling circumstances why that restriction should not be applied.

4. In reaching its decision the Tribunal was able to find in favour of the applicant on the basis of the material before it and pursuant to section 360(2)(a) of the Act, deemed it unnecessary to invite the applicant to appear at a hearing.

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

   BACKGROUND

6. The visa applicant is a citizen of Pakistan.  She is 32 years old.

7. The review applicant is the sponsor of the visa applicant. He was born in the United Arab Emirates.  He first arrived in Australia in July 2003 on a Student visa and was subsequently granted Australian citizenship in July 2009. According to the decision record :

   ·      The review applicant has been married twice before. He married his first wife, Rushna Awan on 21 November 2003. There are no children of the relationship. The review applicant’s first wife was sponsored as a dependent on a Skilled – Ind. Overseas Student Residence visa. They divorced on 18 August 2008.   Ms Awan acquired citizenship on 17 November 2008.

   ·      The review applicant married his second wife, Faiza Shah Din on 20 December 2012. She was granted a Partner (Temporary) (Class UF) (Subclass 309) visa on 12 September 2013. They divorced on 8 June 2016 and the review applicant’s withdrew his sponsorship for a Partner (Permanent) (Class BC) (Subclass 100) visa in July 2016.  There are no children of the relationship.

   ·      The review applicant married his third wife, the visa applicant in Pakistan on 25 December 2016.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether the sponsorship requirements are met.

   Are the sponsorship requirements met?

9. 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). Both the review applicant and the visa applicant were over the age of 18 years at the time of the application. Therefore, cl.309.213 is satisfied.

10. At the time of decision, cl.309.222 requires that the sponsorship referred to in cl.300.213 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.

11. 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.

12. 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 is satisfied there are compelling circumstances affecting the sponsor: r.1.20J(2).

13. The review applicant has married three times; each marriage has had migration and visa implications. His first wife, Rushna Awan was included or sponsored as a dependant applicant on a Skilled Overseas Student visa. Since a Student visa is not one of the four visa classes contemplated by reg 1.20J (Partner visas), the grant of this Student visa would not count as a ‘relevant permission’. Accordingly the Student visa granted to the first wife has no effect on the applicability of reg 1.20J.

14. The review applicant’s second wife, Faiza Shah Din lodged an application for a Partner (Provisional)(Class UF) Partner visa on the 28 February 2013, with the temporary visa being granted later that year. The grant of this Partner visa would count as a ‘relevant permission’ for the purposes of reg 1.20J, as the grant was in relation to a visa of the type contemplated by the provision (a Partner visa). This would count,  irrespective of the applicant’s actions in later withdrawing the application before being granted the permanent visa. The fact that she had been granted the temporary Partner visa is enough to be considered a ‘relevant permission’ for the purposes of reg 1.20J.

15. The Tribunal finds the review applicant was approved as a sponsor in relation to his second wife’s Partner visa application and that she was granted a relevant permission on the basis of that approved sponsorship.  The Tribunal finds that as a consequence of the action of r.1.20J, the review applicant was unable to sponsor a further person, in relation to a visa such as a Partner visa, for a five-year period from the date on which his second wife lodged her Partner visa application, being 28 February 2013. This five year period elapsed on 28 February 2018.

16. As the Tribunal is required to consider the application afresh and as the five-year period has now passed, at the time of this decision the sponsorship of the visa applicant’s application for a Partner visa is no longer restricted by reg.1.20J(1)(c).

17. There is no information before the Tribunal that any of the other criteria for the limitations on approval of sponsorship in reg.1.20J apply to the review applicant. There is no information before the Tribunal that the other restrictions for sponsorship in reg.1.20KA and reg.1.20KB apply to the review applicant.

18. Therefore, on the evidence before the Tribunal the requirements of cl.309.213 and cl.309.222 are met.

19. 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

20. 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 Regulation

    Stephen Conwell
    Member