Kumar (Migration) - [2023] AATA 4621

Kumar (Migration) [2023] AATA 4621 (24 November 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Mr Puneet Kumar
VISA APPLICANT:  Mrs Kavita Mehraulia
REPRESENTATIVE:  Mrs Anne Frances O'Donoghue (MARN: 9368943)
CASE NUMBER:  1917221
DIBP REFERENCE(S):  BCC2018/5518645
MEMBER:Christine Kannis
DATE:24 November 2023
PLACE OF DECISION:  Perth
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:
·cl.309.213 of Schedule 2 to the Regulations
·cl.309.222 of Schedule 2 to the Regulations

Statement made on 24 November 2023 at 8:36am

CATCHWORDS
MIGRATION –Partner (Provisional) (Class UF) visa – subclass 309 – sponsor is affected by the sponsorship limitation – sponsor no longer has immediate family members or close friends in India – sponsor will experience severe emotional and psychological hardship if the applicant cannot relocate to Australia – previous sponsored relationships were genuine relationships – emotional, psychological and physical hardship – mental health – there are compelling circumstances affecting the sponsor – sponsorship should be approved – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5F, 65
Migration Regulations 1994, r 1.20, Schedule 2, cls 309.213, 309.222
CASES
Babicci v MIMIA [2005] FCAFC 77

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 28 May 2019 to refuse to grant the visa applicant a Partner (Provisional) (Class UF) visa under s 65 of the Migration Act 1958 (the Act).
The visa applicant applied for the visa on 7 December 2018 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). 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.
The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.309.222 because the application for the visa is subject to sponsorship limitations, and the delegate was not satisfied the sponsor’s circumstances were sufficiently compelling to waive the sponsorship limitations in r.1.20J.
The sponsor appeared before the Tribunal by MS Teams video on 13 November 2023 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant.
The sponsor was represented in relation to the review.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
In accordance with the President’s Direction Conducting Migration and Refugee Reviews (paragraph 8.2), the Tribunal has restricted its review to the particular criterion on which the primary decision was made.
The issue in the present case is…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Kumar (Migration)

Details

AGLC: Kumar (Migration) [2023] AATA 4621
Case: [2023] AATA 4621
Decision Date: 24 November 2023

CaseChat Overview and Summary

The case of *Kumar (Migration)* concerned a Partner (Provisional) (Class UF) visa, subclass 309. The applicant sought review of a decision regarding their visa application, where the sponsor's eligibility was in question due to sponsorship limitations. The core of the dispute revolved around whether compelling circumstances existed to waive these limitations, which would allow the visa to be approved.

The legal issues before the court were whether the sponsorship limitations under Regulation 1.20J of the Migration Regulations 1994 applied to the applicant's case, and if so, whether there were compelling circumstances affecting the sponsor that would justify not applying those limitations. The court was required to assess the evidence presented by the sponsor to determine if it established such compelling circumstances.

The court reasoned that the sponsor had provided substantial evidence to demonstrate compelling circumstances. This included evidence of the genuineness of the relationship, the sponsor's financial responsibilities in Australia, his long-term residency and work history in Australia, and the lack of support networks in India. Crucially, the sponsor detailed significant emotional and psychological hardship he would experience if the applicant could not relocate to Australia, including the impact on his ability to care for his elderly father and maintain a relationship with his son. The court found that the sponsor met the criteria for the visa, including cl.309.213 and cl.309.222.

Consequently, the Tribunal remitted the application for reconsideration by the Minister, with a direction that the visa applicant met the specified criteria for a Subclass 309 visa. The decision indicated that the Minister should proceed to consider the remaining criteria for the visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The Department advised the visa applicant on 7 February 2019 that the r.1.20J(1)(a) requirement could be waived upon consideration of compelling circumstances pursuant to Regulation 1.20J(2). In response, the sponsor provided the following as compelling circumstances:·Evidence demonstrating his financial circumstances;·Evidence in support of the genuineness of the parties’ relationship including evidence of communication; ·Evidence of the sponsor’s father’s travel from India to attend the sponsor’s wedding;·Statement from the visa applicant in which she provided information in relation to the genuineness of the parties’ relationship. She also said she wants to start a family and the sponsor has concerns as to who will take care of her during her pregnancy if she alone in India. She said that the sponsor assures her that once she is in Australia things will be better and they can plan their family.·Statement from the sponsor in which he referred to his financial responsibilities and that he has been living in Australia for last 20 years. He said that it would be difficult, considering his age of 45 years, to meet his financial commitments in India.Evidence provided prior to the hearing Photographs of the sponsor with the visa applicant together and with others. Birth certificate of the sponsor’s son (dob 28.03.2015). Evidence of enrolment dated 17 December 2020 in relation to the sponsor’s son. Statutory declaration dated 5 September 2022 made by the sponsor in which he provided the following information:·His first marriage ended in divorce when his wife abandoned him and left with his daughter. His second marriage also ended and he has a son from that relationship. ·He met the visa applicant in April 2018 in India and they married on 29 April 2018. He stayed in India for 2 months following the wedding. He has visited the visa applicant 2 or 3 times per year. ·He supports the visa applicant financially and they take care of each other’s emotional and social needs. It has been hard to live a long distance relationship.·He has a good relationship with the visa applicant’s family and she has a good bond with his family.·He wants to stay with the visa applicant and have a normal family life in Australia. It has been difficult living apart for 4 years. Because of COVID-19, age factors and medical conditions, the visa applicant was unable to fall pregnant naturally. They decided to have a baby through the IVF process and are following medical advice but not being together has made the IVF process harder.·It is difficult for him to live here alone because if he is sick he has no immediate support. In the previous year he was diagnosed with diabetes and advised to take care of his diet however he doesn’t have support at home and he eats readymade supermarket food which is not good for his diabetes.·He migrated to Australia when he was 24 and had spent most of his life here. His entire work experience has been here and he has no support in India. Given his age and lack of local working experience it would be difficult for him to find an adequate job in India and he would face severe financial hardship.·He sees his 7 year old son twice a week. If he relocates to India he would not be able to see his son and that would affect the child as he provides him with emotional, psychological and financial support. It would be difficult to provide these if he relocates to India.·His entire family live in Australia and as an extended family they share a good bond and support each other emotionally and socially. His 70 year old father underwent surgery in June 2022 for his gallbladder and fatty liver. His recovery required detailed attention. He needs to take care of his father physically and to provide emotional support. His father wants to spend time with him and his brother and he does not want to live away from him.·He works as an Uber driver full-time and if he relocated to India it would be difficult to find adequate employment. He would also not have the same support in the health system in India and it would cost more to treat his diabetes.

Decision

Reasons for decision

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 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:·cl.309.213 of Schedule 2 to the Regulations·cl.309.222 of Schedule 2 to the RegulationsChristine KannisMember

Ratio Decidendi

Legal Principle Established

For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.CONSIDERATION OF CLAIMS AND EVIDENCE In accordance with the President’s Direction Conducting Migration and Refugee Reviews (paragraph 8.2), the Tribunal has restricted its review to the particular criterion on which the primary decision was made. The issue in the present case is whether is whether the sponsorship limitations apply in this case, and if so, whether there are compelling circumstances affecting the sponsor for not applying the limitation requirements.Are the sponsorship requirements met?cl.309.213 Clause 309.213 requires that the visa applicant is 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 r.1.03 of the Regulations). At the time of decision, this sponsorship must have been approved and still be in force. For visa applications made on or after 18 November 2016 the sponsor must also have consented for the Department to disclose to each sponsored 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.309.222. Approval of sponsorship is subject to limitations contained in r.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 r.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 r.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 r.1.20KC in relation to sponsors convicted of a relevant offence who have a significant criminal record where the visa application was made on or after 18 November 2016. The Tribunal has no adverse information before it relating to the identity and age of the sponsor. Similarly, the evidence does not highlight any criminal activity by the sponsor. On the evidence the Tribunal is satisfied that the visa applicant meets cl.309.213.cl.309.222 Regulation 1.20J requires that the Minister not approve the sponsorship of the applicant unless the Minister is satisfied that:a.not more than 1 other person has been granted a relevant permission as:(i) the spouse, de facto partner or prospective spouse of the sponsor on the basis of a sponsorship nomination; or(ii) a person who ceased a relationship of a kind mentioned in subparagraph (i) with the sponsor after the person, or another person mentioned in the prescribed criteria for the visa, had suffered family violence committed by the sponsor; andb.if another person has been granted a relevant permission in the circumstances referred to in paragraph (a) – not less than 5 years has passed since the date of making the application for that relevant permission.