Kairpal (Migration)

[2019] AATA 1914

Kairpal (Migration) [2019] AATA 1914 (27 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Vineet Kairpal

VISA APPLICANT:  Mrs Monika

CASE NUMBER:  1729577

DIBP REFERENCE(S):  BCC2016/3729149

MEMBER:Russell Matheson

DATE:27 March 2019

PLACE OF DECISION:  Sydney

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

·cl.309.222 of Schedule 2 to the Regulations.

Statement made on 27 March 2019 at 11:19am

CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – sponsorship limitation – previous sponsorship of partner – five-year limitation passed – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.20J; 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 8 November 2016. The delegate refused to grant the visa on 20 September 2017.

2. The delegate made the decision on the basis of evidence that the sponsor as the spouse had sponsored a previous partner and less than five years had passed since the date of making the application for that relevant permission.

3. Clause 309.222 requires that a sponsorship has been approved. Regulation 1.20J of the Migration Regulations 1994 (the Regulations) sets certain limits on the Minister’s ability to approve sponsorships. One of these limits is that a person must wait five years from the date of application for a previous sponsorship before they can sponsor a new spouse. If the five years has not passed, as it had not in this case at the time of application, this requirement can be waived if there are compelling circumstances. The delegate was not satisfied that the circumstances of the sponsor were sufficiently compelling to warrant waiving the sponsorship provision under r.1.20J(2).

4. On 26 March 2019 the review applicant’s migration agent wrote to the Tribunal stating that the visa applicant (Mrs Monika) had been granted a Partner visa (Subclass 820) on 16 January 2019, and the review applicant’s sponsorship had been approved as five years had passed since the sponsor had lodged the sponsorship application for his ex-partner. Departmental records indicate that this is the case and the review applicant’s sponsorship was finalised and came into effect on 8 December 2018. 

5. In light of the new evidence received, the Tribunal is satisfied that the criterion is met and has 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:

   ·cl.309.222 of Schedule 2 to the Regulations

   Russell Matheson
   Member