He (Migration)

[2020] AATA 5973

He (Migration) [2020] AATA 5973 (24 November 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Yan He

CASE NUMBER:  1732730

HOME AFFAIRS REFERENCE(S):          BCC2016/2534125

MEMBER:Meena Sripathy

DATE:24 November 2020

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:

·cl.820.211(c) of Schedule 2 to the Regulations; and

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

Statement made on 24 November 2020 at 10:49am

CATCHWORDS
MIGRATION –Partner (Temporary) (Class UK) visa – Subclass 820 – period of 5 years has passed - approval of sponsorship –decision under review remitted

LEGISLATION
Migration Act 1958, ss 65, 360
Migration Regulations 1994, r 1.20KA, Schedule 2, cls 820.211, 820.221

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 1 August 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 cl.820.211(2)(c) because the delegate found that Regulation 1.20KA applied to the application as the applicant was granted a Contributory Parent visa on 23 November 2015, less than 5 years had passed and the delegate was not satisfied that the applicant had compelling reasons for not applying for the Contributory Parent visa at the same time as the applicant did, therefore the sponsorship could not be approved.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in the present case is whether Regulation 1.20KA applies to limit or prevent the approval of the sponsorship.

   Is the applicant sponsored?

7. Clause 820.211 requires at the time of application, the applicant meets one of several alternative sub criteria. These include 820.211(2)(c) which requires that the applicant was, at the time of application, sponsored by the sponsor, where such person has turned 18; or where they have not, by the sponsor’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).

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. Exceptions apply in certain circumstances where the sponsor has died, or family violence has occurred, or a child is involved. For visa applications made on or after 18 November 2016, the sponsor must also have consented for the Department to disclose to each 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.820.221.

9. Approval of sponsorship is subject to limitations including, relevantly for the present case, r.1.20KA.  Regulation 1.20KA of the Regulations sets a limit on the period before which a certain person can sponsor another person for a Partner visa. Regulation 1.20KA applies where a Subclass 143 (Contributory Parent) or Subclass 864 (Contributory Aged Parent) visa holder, who was granted that visa on or after 1 July 2009, seeks to sponsor another person after that date. If the person to be sponsored for a Partner or a Prospective Marriage visa was the proposed sponsor’s spouse or de facto partner on or before the day the Subclass 143 or 864 visa was granted, a period of 5 years must have passed since the date the sponsor’s visa was granted. These requirements apply unless there are compelling circumstances affecting the applicant: r.1.20KA(3).

10. Specifically, the visa applicant must either have had compelling reasons (other than financial) for not applying at the same time as the proposed sponsor for, a Subclass 143 or 864 visa; or if the visa applicant withdrew such an application, compelling reasons (other than financial) for withdrawing the application.

11. In the present case, the sponsor was granted a Contributory Parent visa on 23 November 2015.  Information provided by the applicant to the Department indicates that the applicant and sponsor first married on 21 January 2005 and subsequently divorced on 8 July 2013 following marital disagreements.  The sponsor then migrated to Australia, having been granted a Contributory Parent visa sponsored by his daughter Wenji Jin from another marriage. The applicant and sponsor reconciled their relationship in April 2016 and remarried in July 2016, before lodging the current Partner application on 1 August 2016.

12. On the basis of the evidence before the Tribunal, it is satisfied that the applicant is sponsored by an Australian permanent resident, and the sponsorship is not prohibited by subclause (2B) from being a sponsoring partner.  The Tribunal finds that the applicant meets cl.820.211(2)(c).

13. As the sponsor was granted a Contributory Parent visa, the Tribunal has considered the application of r.1.20KA to the application, which applies to limit the approval of sponsorship.  Approval of sponsorship is a time of decision criteria in cl.820.221(4).  

14. At time of decision, the Tribunal notes that 5 years has passed since the sponsor was granted his Contributory Parent visa.  Therefore, r.1.20KA no longer applies to prevent or limit the approval of sponsorship in the present case.  The Tribunal observes that, accordingly it is unnecessary to consider the additional issue of whether applicant was the proposed sponsor’s spouse or de facto partner on or before the day the Subclass 143 or 864 visa was granted because, in any event, the period of 5 years has passed.

15. On the evidence before the Tribunal the requirements of cl.820.211(2)(c) and cl.820.221(4) are met.

16. 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

17. 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.820.211(2)(c) of Schedule 2 to the Regulations; and

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

    Meena Sripathy
    Member