Hewavitharana (Migration)

[2018] AATA 98

Hewavitharana (Migration) [2018] AATA 98 (15 January 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Pulasthi Sameera Hewavitharana

VISA APPLICANT:  Mrs Umali Kaushalya Jayasooriya Paranavithana Hettarachchige

CASE NUMBER:  1609978

DIBP REFERENCE(S):  BCC2016/269962

MEMBER:Ian Garnham

DATE:15 January 2018

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 309 visa:

·Regulation 1.20(J)(1)(c) for the purposes of cl.309.222 of Schedule 2 of the Regulations

Statement made on 15 January 2018 at 4:53pm

CATCHWORDS

Migration – Partner (Provisional) (Class UF) – Subclass 309 (Spouse (Provisional)) – Sponsor previously illegible – 5 year timeframe passed – Matter remitted for reconsideration

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994 r 1.20(J)(1)(c) Schedule 2 cl 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 to refuse to grant the applicant a Partner (Provisional) (Class UF) visa under s.65 of the Migration Act 1958 (the Act). The applicant applied for the visa on 18 January 2016. The delegate refused to grant the visa on 26 April 2016.

2. The delegate made the decision on the basis that, at the time of decision, the sponsor’s circumstances did not meet the requirement that; a person who was themselves sponsored as a spouse cannot have a sponsorship approved until at least five years after the date of application for that visa.

3. The delegate was also not satisfied that there were compelling circumstances affecting the sponsor that justified waiving this requirement.

   Relevant facts:

4. In this case the sponsor was previously sponsored by another person as a spouse/de-facto partner to Australia on an application lodged on 21 September 2012.    

5. The Tribunal is satisfied that after the passing of 5 years, on 21 September 2017 this criterion is now met by the visa applicant.  The Tribunal has therefore concluded that the matter should be remitted for reconsideration.

   DECISION

6. The Tribunal remits the application for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 309 visa:

   ·Regulation 1.20(J)(1)(c) for the purposes of cl.309.222 of Schedule 2 to the Regulations

   Ian Garnham
   Member