Khantixone (Migration)

[2023] AATA 3826

Khantixone (Migration) [2023] AATA 3826 (20 October 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Xayphone Khantixone

REPRESENTATIVE:  Mr Michael Xiao (MARN: 0211601)

CASE NUMBER:  1933525

HOME AFFAIRS REFERENCE(S):          BCC2016/2188898

MEMBER:M. Edgoose

DATE:20 October 2023

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Partner (Temporary) (Class UK) visa, with the direction that the applicant meets the following criteria for a Subclass 820 (Partner) visa:

·cl 820.221(4) of Schedule 2 to the Regulations

Statement made on 20 October 2023 at 11:36am

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – sponsorship approved and still in force – sponsorship limitation – lifetime limit of 2 approved sponsorships – waiver of requirement – ‘compelling circumstances’ – newborn child – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.20J; Schedule 2, cls 820.211. 820.221

CASES
Babicci v MIMIA [2004] FCA 1645

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).

2. The applicant applied for the visa on 28 June 2016 on the basis of her relationship with her sponsor. At that time, Class UK contained only one subclass: Subclass 820 (Partner). The criteria for the grant of this visa are set out in Part 820 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria.

3. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl 820.221(4).

4. The applicant was represented in relation to the review.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Is the applicant sponsored?

6. Clause 820.211 requires at the time of application, the applicant meets one of several alternative sub criteria. These include 820.211(2)(c) which requires that the applicant was, at the time of application, sponsored by the sponsor, where such person has turned 18; or where they have not, by the sponsor’s parent or guardian who has turned 18 and is either an Australian citizen, permanent resident or eligible New Zealand citizen (as defined in reg 1.03 of the Regulations).

7. At the time of decision, the applicant must continue to be sponsored by the sponsor, and the sponsorship must have been approved by the Minister and be still in force. Exceptions apply in certain circumstances where the sponsor has died, or family violence has occurred, or a child is involved. For visa applications made on or after 18 November 2016, the sponsor must also have consented for the Department to disclose to each applicant any conviction for a relevant offence, unless the conviction has been quashed or otherwise nullified, or where the sponsor has been pardoned with the effect that he or she is taken never to have been convicted of the offence: cl 820.221.

8. Approval of sponsorship is subject to limitations contained in reg 1.20J of the Regulations which sets a limit on the number of people that a person can sponsor in a lifetime and a minimum time that must lapse between each sponsorship, and in reg 1.20KA which sets a limit on the period before which certain Parent visa holders can sponsor another person for a Partner visa. There are further limits imposed by reg 1.20KB in relation to sponsors charged with, or convicted of, certain offences where the visa application was made on or after 27 March 2010, and reg 1.20KC for sponsors convicted of a relevant offence who have a significant criminal record in relation to the relevant offence where the visa application was made on or after 18 November 2016.

9. Under reg 1.20J, a sponsor is limited to a total, in a lifetime, of two approved sponsorships or nominations that lead to a grant of a partner visa (or entry permit) or a visa (or entry permit) granted on the basis of the domestic violence provisions. If there has been one previous sponsorship or nomination, or if the sponsor was granted a visa or entry permit as a result of being sponsored, a period of 5 years must have passed since the date of the earlier visa application. These requirements apply unless the Minister, or the Tribunal on review, is satisfied there are compelling circumstances affecting the sponsor: reg 1.20J(2).

10. The expression ‘compelling circumstances’ is not defined in the legislation. The Tribunal must consider whether the circumstances are such that they evoke interest or attention in a powerfully irresistible way: Babicci v MIMIA [2004] FCA 1645 or are ‘so powerful that they lead the [Tribunal] to make a positive finding that the [provision] should be waived’: Babicci v MIMIA [2005] FCAFC 77.

11. At the time the visa application was lodged on 28 June 2016, Departmental records confirmed that the sponsor in this matter had three previous sponsorships, which commenced on 6 April 1990, 22 November 1994, and 23 October 2009. The Tribunal notes that all three previous sponsorships had resulted in the grant of a Partner visa. Given this reg 1.20J(1)(a) is not met.

12. As reg 1.20J(1)(a) is not met, the applicant and sponsor were required to establish compelling circumstances affecting the sponsor to satisfy the waiver of reg 1.20J(2).

13. On 19 October 2023 the applicant through their representative responded to the hearing invitation scheduled for 18 December 2023. Contained within this response the applicant mentioned that they would be submitting a copy of their son’s birth certificate prior to the hearing.

14. On 20 October 2023 the couple submitted to the Tribunal through their representative a copy of Jason Luxa, their son’s birth certificate. According to the birth certificate their son, Jason, was born on 24 August 2021 at Campbelltown Hospital, Campbelltown, New South Wales. In addition to the birth certificate, a photo was submitted of the sponsor at the birth of the Jason and the visa applicant and a letter from Westmead Fertility Centre.

15. Therefore, the Tribunal is satisfied there are compelling circumstances that affect the interests of the sponsor, that being the applicant and sponsor have a dependent child who is dependent on each of them. Given this the Tribunal is satisfied that the requirements of reg 1.20J(2) should be waived.

16. On the evidence before the Tribunal the requirements of cl 820.221(4) 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 820 visa.

    DECISION

18. The Tribunal remits the application for a Partner (Temporary) (Class UK) visa, with the direction that the applicant meets the following criteria for a Subclass 820 (Partner) visa:

    ·cl 820.221(4) of Schedule 2 to the Regulations

    M. Edgoose
    Member