Karimi (Migration)

[2017] AATA 2453

Karimi (Migration) [2017] AATA 2453 (16 October 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Ahmad Zahir Karimi

VISA APPLICANT:  Ms Meena Ayazi

CASE NUMBER:  1702110

DIBP REFERENCE(S):  BCC2016/2246801

MEMBER:Mary Urquhart

DATE:16 October 2017

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Partner (Provisional) (Class UF) visa for reconsideration, with the direction that the visa applicant satisfies cl.309.222(1) of Schedule 2 to the Regulations

Statement made on 16 October 2017 at 11:42am

CATCHWORDS
Migration – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional) – Sponsorship limitations cleared – Sponsor Australian citizen for more than 5 years

LEGISLATION
Migration Act 1958 ss 65, 360(2)(a)
Migration Regulations 1994 rr 1.20J, 1.20KA, 1.20KB, Schedule 2 cls 309.222, 309.222(1)

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 on 12 December 2016 to refuse to grant the visa applicant a Partner (Provisional) (Class UF) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 26 June 2016 on the basis of her relationship with her sponsor, the review applicant. At that time, Class UF contained only one subclass: Subclass 309 (Partner (Provisional). The criteria for the grant of this visa are set out in Part 309 of Schedule 2 to the Migration Regulations 1994 (the Regulations). Relevantly to this matter the primary criteria include cl.309.222.

3. The delegate refused to grant the visa on the basis that on the date of his decision the visa applicant did not satisfy cl.309.222.

4. The applicant applied for a review of that decision.

5. The review applicant was represented in relation to the review by his registered migration agent.

6. To be granted the visa, the applicant must meet the criteria in Part 309 of Schedule 2 to the Migration Regulations 1999. Clause 309.213 requires her to have a sponsor who meets particular criteria when she applied for the visa and clause 309.222(1) requires the sponsorship be approved by the Minister when a decision is made on the visa application.

7. Regulations 1.20J, 1.20KA and 1.20KB prohibit the Minister from approving sponsorship in particular circumstances. Relevantly, regulation 1.20J prohibits the Minister's from approving sponsorship unless satisfied that

   ·no more than one other person has been granted a visa on the basis of being the spouse, de facto partner or prospective spouse of the sponsor or because a relationship of that kind ended after the person suffered family violence committed by the sponsor; and

   ·if one other person was granted a visa on the same basis, five years has passed since the person applied for the visa; and

   ·if the sponsor was granted a visa as the spouse, de facto partner or prospective partner of another person, five years have passed since the sponsor applied for that visa.

8. The delegate found the applicant did not satisfy clause 309.222 (1) because regulation 1.20J prohibits the Minister from approving the sponsorship. To deal with this application for review, the Tribunal considered whether that was the case at the time of this decision.

9. Under subsection 360(2)(a) of the Act the Tribunal considered that it should decide the review in the applicant's favour on the basis of the evidence before it.  As a result, it was therefore unnecessary to proceed with a Tribunal hearing. And on 16 October 2017 the Tribunal made a decision on the application without hearing from the applicant.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. The issue in the present case is whether the sponsorship is subject to a limitation.

12. The evidence is that the Department has granted a visa to one other person as the spouse of the sponsor. The sponsor lodged the previous sponsorship application on 26 June 2012 which was less than five years prior to the delegate’s decision on 12 December 2016.However, five years has passed at the date of this decision and the Tribunal is satisfied that the sponsor now satisfies the criterion in the second dot point set out above.

13. The Tribunal is satisfied that the sponsor is an Australian citizen and has been for more than five years; and the Tribunal accepts the delegate's finding that it has granted a visa to no more than one person based on a relationship with him. It follows he satisfies the other criteria for approval of sponsorship in regulation 1.20J.

14. The Tribunal is satisfied that the sponsor has not held a “specified class” of visa for the purposes of regulation 1.20KA on the basis of no evidence to the contrary and there is no evidence that he was ever charged with a “registerable offence” for the purposes of regulation 1.20KB.

15. As the Tribunal is satisfied that none of the limits on sponsorship now apply, to Mr Ahmad Zahir Karimi’s sponsorship of Ms Meena Ayazi. She therefore satisfies clause 309.222. Accordingly the Tribunal sets aside the decision under review and sends the matter back to the Department to consider whether the applicant otherwise meets the criteria for the visa.

16. On the evidence before the Tribunal the requirements of cl.309.222 are met.

17. 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

18. The Tribunal remits the application for a Partner (Provisional) (Class UF) visa for reconsideration, with the direction that the visa applicant satisfies cl.309.222 (1) of Schedule 2 to the Regulations.

    Mary Urquhart

    
    

    Member