Haynes (Migration)

[2019] AATA 1946

Haynes (Migration) [2019] AATA 1946 (19 February 2019)

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DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Jordan Mallory Haynes

CASE NUMBER:  1719197

HOME AFFAIRS REFERENCE(S):           BCC2016/3399865

MEMBER:Ann Duffield

DATE:19 February 2019

PLACE OF DECISION:  Brisbane

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:

·cl.820.221(4) of Schedule 2 to the Regulations

·Regulation 1.20J

Statement made on 19 February 2019 at 2:11pm

CATCHWORDS

MIGRATION – Partner (Temporary) (Class UK) – Subclass 820 (Spouse) – sponsorship limitation  – compelling circumstances – waiver of sponsorship limitation – nature of the hardship – birth of child – marriage – mental health issues  – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2 cl 820.221(4), r 1.20J

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 and Border Protection to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 13 October 2016 on the basis of her relationship with her 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 (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 the sponsorship approval criteria in cl.820.221(4). This clause requires that the sponsor of an applicant for a partner visa not face a sponsorship bar prescribed in regulation 1.20J. Regulation 1.20J states that the Minister must not approve the sponsorship of the applicant if the sponsor has previously sponsored a spouse in the five years prior to the lodgement of the application.

4. In the present case the sponsor had previously sponsored a partner on 24 October 2012. This means that the sponsor was prevented from sponsoring a second spouse prior to 25 October 2017. The application subject to this review was lodged in August 2017.

5. The delegate did not find that the parties engaged 1.20J(2) which allows that 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.

6. The Tribunal received a substantial submission from the parties and was satisfied that it could make a favourable decision without requiring them to attend a hearing.

7. The applicant was represented in relation to the review by her registered migration agent.

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

   BACKGROUND

9. The applicant is a citizen of the United Kingdom born on 29 October 1992. She first arrived in Australia on 27 October 2015 on a working holiday visa Subclass 417. She lodged the application subject to this review on 13 October 2016 and has been on a bridging visa in relation to that application from that time.

10. The sponsor is a citizen of Australia born on 20 August 1983.

11. The parties entered into a civil partnership in Queensland on 2 July 2016 (Folio 53 of the Tribunal’s file) and they had a daughter, Mia, together on 10 November 2017 (birth certificate at Folio 54 of the Tribunal’s file).

12. The sponsor was previously married and sponsored his spouse, Ms Ibarra, to Australia in October 2012. That marriage ended, however, Ms Ibarra was nonetheless granted a Subclass 801 permanent visa in March 2015.

13. Because of this successful sponsorship, the applicant was barred from sponsoring another spouse for five years. The exclusion period ended in October 2017. The application subject to this review was lodged in August 2017, only two months before the end of the exclusion period.

    CONSIDERATION OF CLAIMS AND EVIDENCE

14. The issue in the present case is whether the applicant is barred by Regulation 1.20J from being an eligible sponsor in relation to the present case.

15. The parties provided the Tribunal with extensive and substantial submissions including the following:

    a.Personal statements explaining their circumstances , including the birth of their child and other compassionate and compelling reasons that the Tribunal should exercise its discretion;

    b.Evidence of their marriage and the birth of their child;

    c.Statements from friends and families supporting the parties and the compassionate nature of their individual and combined circumstances;

    d.Copy of the parties civil partnership certificate;

    e.Photographs of the parties together and with others including with their daughter;

    f.Copies of utility bills and other documents in both parties names including the purchase of a vehicle;

    g.A submission by the parties representative seeking the Tribunal’s discretion to waive the limitation on sponsorship in 1.20J as there are compelling circumstances affecting the sponsor; and

    h.Joint bank accounts showing expenditure on household expenses.

16. The Tribunal has considered these matters in their entirety. In particular the Tribunal has turned its mind to whether the applicant, at the time of this decision, is in fact barred from making a sponsorship. The Tribunal is strongly of the view that, given the passage of time, the sponsor is no longer barred from sponsoring the applicant, being some 16 months past the exclusion period.

17. Even if the Tribunal is wrong on that matter, the Tribunal has formed a view that the parties circumstances, including in relation to their individual mental health issues and the birth of their daughter; the genuine and ongoing nature of their relationship and their mutual commitment to their relationship, warrant a waiver of the sponsorship limitation.

18. The Tribunal is satisfied that the nature of the hardship that would be suffered by the sponsor and the applicant if the sponsorship were not approved would amount to a level of hardship that amounts to a compelling circumstance. The mental health of both parties would suffer if they were forced to separate and split up the family.

19. The parties have a daughter together, born on 10 November 2017. They have been living together for nearly three years and have the support of their family and friends.

    CONCLUSION

20. 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

21. 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:

    ·cl.820.221(4) of Schedule 2 to the Regulations

    ·regulation 1.20J

    Ann Duffield
    Senior Member