Jin (Migration)

[2020] AATA 5884

Jin (Migration) [2020] AATA 5884 (10 November 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Caixia Jin

VISA APPLICANT:  Mr Yiren Xue

CASE NUMBER:  1925403

DIBP REFERENCE(S):  BCC2019/1012720

MEMBER:Helena Claringbold

DATE:10 November 2020

PLACE OF DECISION:  Sydney

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:

·Regulation 1.20KA for the purposes of cl.309.222 of Schedule 2 to the Regulations.

Statement made on 10 November 2020 at 7:19am

CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – sponsorship limitation – where sponsor was granted a Subclass 143 (Contributory Parent) visa – period of 5 years has passed – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.20KA; Schedule 2, cl 309.222

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. On 28 February 2019, Mr Yiren Xue, the visa applicant, applied for a Partner (Provisional) (Class UF) visa. The application was based on his spousal relationship with Mrs Caixia Jin, the sponsor and review applicant. 

2. On 28 August 2019, a delegate of the Minister for Immigration and Home affairs refused to grant the visa. The delegate was not satisfied that the sponsorship requirements were met. Therefore, the visa applicant did not meet cl.309.213 and 309.222 of Schedule 2 to the Migration Regulations 1994 (the Regulations) made under the Migration Act 1958. On 10 September 2019, the sponsor provided the Tribunal with a copy of the delegate’s Decision Record. This is a review of the delegate’s decision brought by the sponsor.

3. Based on information before the Tribunal and as this decision is favourable for the applicant the Tribunal will decide the matter on the papers.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The Tribunal has taken into consideration, individually and as a whole, all the evidence in the Department of Home Affairs’ (the Department’s) case file and the Tribunal’s case file and the evidence at the Tribunal hearing. 

   ISSUE 

   The issue in the present case is whether the requirements of r.1.20KA are met for the purposes of cl.309.222 of the Regulations.

   BACKGROUND ON THE EVIDENCE

6. The visa applicant was born in 1955 in Shanghai, China. His mother is deceased and his father and two siblings live in China. Since March 2011, the visa applicant has made nine visits to Australia as the holder of Tourist Short Stay (Subclass 676) and Visitor (Subclass 600) visas. The visa applicant has declared no previous marriage or de facto relationship.

7. The sponsor was born in 1958 in Shanghai, China. Her father is deceased and her mother and three siblings live in China. The sponsor has declared no previous marriage or de facto relationship.

8. The parties were introduced to each other on 6 March 1981. Thereafter, the parties commenced a relationship. On 27 October 1982, they married in Shanghai, China. There is one child from this relationship born in 1984.

   Are the sponsorship requirements met?

9. 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.

10. As detailed in the delegate’s decision record, the sponsor and the applicant married on 27 November 1982.  This was before the Subclass 143 (Contributory Parent) visa was granted on 2 November 2015. There is no evidence before the Tribunal to suggest that the sponsor and the applicant were and are not in a spousal relationship. On 28 February 2019, the application for a Partner (Provisional) (Class UF) visa was lodged and the sponsor sought approval to sponsor the applicant.

11. As detailed above the sponsor was granted a Subclass 143 (Contributory Parent) visa on 2 November 2015.  As a result, at the time of this decision, a period of 5 years have now passed since the date the sponsor’s visa was granted and the limitation is no longer applicable to the applicant.

12. The Tribunal is satisfied, at the time of decision, that the requirements of r.1.20KA are met for the purposes of cl.309.222 of the Regulations.

13. 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

14. 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:

    ·Regulation 1.20KA for the purposes of cl.309.222 of Schedule 2 to the Regulations.

    Helena Claringbold
    Member