Kaur (Migration)

[2021] AATA 4900

Kaur (Migration) [2021] AATA 4900 (23 December 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Rupinder Kaur

REPRESENTATIVE:  Ms Carina Ford (MARN: 9802862)

CASE NUMBER:  1934921

HOME AFFAIRS REFERENCE(S):          BCC2019/5012011

MEMBER:Brendan Darcy

DATE:23 December 2021

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 820 visa:

·cl 820.221 of Schedule 2 to the Regulations

Statement made on 23 December 2021 at 10:13am

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – sponsorship limitation – application made less than 5 years after previous sponsorship – limitation period now passed – decision without hearing necessary – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 360(2)(a)
Migration Regulations 1994 (Cth), r 1.20J(1)(b), Schedule 2, cl 820.221(4)(a)

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 Home Affairs to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s 65 of the Migration Act 1958 (Cth) (the Act). The applicant applied for the visa on 7 October 2019. The delegate refused to grant the visa on 27 November 2019.

2. At the time of the decision, the delegate made this refusal decision on the basis that evidence of the sponsor of this partner visa application had a previous sponsorship less than 5 years ago.

3. Regulations 1.20J, 1.20KA, 1.20KB and 1.20KC limit the Minister’s discretion to approve sponsorships.

4. Under these regulations limiting the Minister’s discretion to approve sponsorships, the delegate was not satisfied that the applicant met clause 820.221(4)(a). Specifically, the applicant did not meet regulation 1.20J(1)(b) for the grant of the visa under the Migration Regulations 1994 (Cth) (the Regulations).

5. At the time of lodgement for this Partner visa application on 7 October 2019, the Departmental records indicated that the sponsor had a previous sponsorship less than 5 years ago, on 4 April 2016. The sponsor had withdrawn his previous sponsorship on 3 May 2017. Therefore, according to the delegate, regulation 1.20J(1)(b) was not met.

6. Under regulation 1.20J(2), the sponsorship may be approved if it is established that there are compelling circumstances affecting the sponsor.  According to the decision record, the applicant’s circumstances did not meet compassionate or compelling circumstance as prescribed by the Departmental policy and proceeded to refuse the application on the basis of cl.8210.221 is not met.

7. On 27 November 2019, the applicant applied to have the delegate’s refusal decision not to grant the visas reviewed by the Tribunal with the decision record attached.

8. At the time of making this decision, the Tribunal notes that with the passage of time it has been more than five (5) and (9) months since the sponsor had a previous sponsorship.

9. The Tribunal has considered the information before it and the applicable legislative provisions. It finds that, for the purposes of consideration of r.1.20J, the Tribunal finds that a period of 5 years has now passed since that visa application was made.

10. Given this, the applicant meets clause 820.221(4)(a). There is no evidence before the Tribunal that the rest of cl.820.221 is not satisfied.

11. On the evidence before the Tribunal, the requirements of cl.820.221 are therefore now met.

12. On the basis of the satisfaction of the objective criteria in cl.820.221, the Tribunal considers the most appropriate course of action is to remit this application for a partner visa to the Minister to consider the remaining criteria for a Subclass 309 visa.

13. In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the applicant on the basis of the material before it, pursuant to s 360(2)(a) of the Act.

    DECISION

14. The Tribunal remits the application for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 820 visa:

    ·cl 820.221 of Schedule 2 to the Regulations

    Brendan Darcy
    Member