Lin (Migration) - [2024] AATA 3893

Lin (Migration) [2024] AATA 3893 (16 September 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Ms Jing Lin
Miss Danni Huang
REPRESENTATIVE:  Mr James Tan (MARN: 9686457)
CASE NUMBER:  2115616
HOME AFFAIRS REFERENCE(S):          BCC2019/3379837
MEMBER:Justin Meyer
DATE:16 September 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the applications for Partner (Temporary) (Class UK) visas, with the direction that the first named applicant meets the following criteria for a Subclass 820 (Partner) visa:
·Regulation 1.20J for the purpose of cl 820.221(4) of Schedule 2 to the Regulations.

Statement made on 16 September 2024 at 10:01am
CATCHWORDS
MIGRATION –Partner (Temporary) (Class UK) visa – Subclass 820 – sponsorship limitations – a long-standing relationship – there is hardship leading to compelling circumstances – applicant and the sponsor have been in a spousal relationship for about seven years – medical condition of the sponsor – emotional support – sponsorship limitations in reg 1.20J should not apply – decision under review remitted
LEGISLATION
Migration Act 1958, ss, 5F, 65
Migration Regulations 1994, r 1.20J, Schedule 2, cls 820.211,820.221
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 to refuse to grant the applicants Partner (Temporary) (Class UK) visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The first named applicant (the applicant) applied for the visa on 5 July 2019 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.
The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl 820. 221(4) because:
Based on the information provided, I am not satisfied that you have demonstrated factors and/or compassionate and compelling circumstances to warrant a waiver of the sponsorship limitation for your Partner visa Application. As your sponsorship has not been approved, your application does not satisfy clause 820.221(4) of the Migration Regulations
The applicants appeared before the Tribunal on 27 August 2024 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Yuksel Ozcelik, who is the applicants’ Partner and sponsor. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and Turkish and English languages.
The applicants were represented in relation to the review. The representative attended the Tribunal hearing.
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…

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 Lin (Migration)

Details

AGLC: Lin (Migration) [2024] AATA 3893
Case: [2024] AATA 3893
Decision Date: 16 September 2024

CaseChat Overview and Summary

This matter concerned an application for a Partner (Temporary) (Class UK) visa, Subclass 820. The applicant sought review of a decision that had applied sponsorship limitations under regulation 1.20J of the Migration Regulations 1994. The applicant argued that these limitations should not apply due to compelling circumstances affecting the sponsor, specifically citing a long-standing relationship of approximately seven years and the sponsor's medical condition necessitating emotional support. The review was conducted by a Tribunal member, Justin Meyer.

The primary legal issue before the Tribunal was whether the sponsorship limitations imposed by regulation 1.20J applied to the applicant's visa application, and if so, whether compelling circumstances affecting the sponsor justified an exception to these limitations. The Tribunal was required to determine if the sponsor had previously sponsored more than one successful partner visa application, which would trigger the application of regulation 1.20J, and then assess whether the circumstances presented by the applicant constituted "compelling circumstances" as contemplated by the regulation.

The Tribunal found that the sponsor had indeed sponsored two previous successful Partner visa applications, meaning the limitations under regulation 1.20J were applicable. However, the Tribunal also noted that the regulation allows for sponsorship approval despite these limitations if the Minister is satisfied that compelling circumstances affecting the sponsor exist. The Tribunal considered the applicant's submission that the seven-year relationship and the sponsor's medical condition constituted such compelling circumstances.

Given these findings, the Tribunal remitted the application for reconsideration. The direction was that the applicant met the criteria under regulation 1.20J for the purpose of clause 820.221(4) of Schedule 2 to the Regulations, indicating that the compelling circumstances were sufficient to warrant further consideration of the visa application.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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 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). 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. 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. In the course of the hearing, the Tribunal discussed with the applicant information contained in the delegate’s decision record, a copy of which the applicant provided to the Tribunal. The information indicates that the applicant’s sponsor was the sponsor of two successful Partner visa applications. Therefore, the limitations of reg 1.20J apply. The applicant did not dispute this information but is seeking a waiver based on compelling grounds. Regulation 1.20J is concerned with serial sponsorship and abuse of the partner migration provisions, but it allows sponsorship approval in circumstances where a sponsor has successfully sponsored more than one partner, only 'if the Minister is satisfied that there are compelling circumstances affecting the sponsor'. In this provision the compelling circumstances must specifically affect the sponsor.

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 820 visa.DECISION The Tribunal remits the applications for Partner (Temporary) (Class UK) visas, with the direction that the first named applicant meets the following criteria for a Subclass 820 (Partner) visa:·Regulation 1.20J for the purpose of cl 820.221(4) of Schedule 2 to the Regulations.Justin MeyerMemberATTACHMENT - Extract from Migration Regulations 19941.15A Spouse(1)For subsection 5F (3) of the Act, this regulation sets out arrangements for the purpose of determining whether 1 or more of the conditions in paragraphs 5F (2) (a), (b), (c) and (d) of the Act exist.(2)If the Minister is considering an application for:(a)a Partner (Migrant) (Class BC) visa; or(b)a Partner (Provisional) (Class UF) visa; or(c)a Partner (Residence) (Class BS) visa; or(d)a Partner (Temporary) (Class UK) visa;the Minister must consider all of the circumstances of the relationship, including the matters set out in subregulation (3).(3)The matters for subregulation (2) are:(a)the financial aspects of the relationship, including:(i) any joint ownership of real estate or other major assets; and(ii) any joint liabilities; and(iii) the extent of any pooling of financial resources, especially in relation to major financial commitments; and(iv) whether one person in the relationship owes any legal obligation in respect of the other; and(v) the basis of any sharing of day to day household expenses; and(b)the nature of the household, including:(i) any joint responsibility for the care and support of children; and(ii) the living arrangements of the persons; and(iii) any sharing of the responsibility for housework; and(c)the social aspects of the relationship, including:(i) whether the persons represent themselves to other people as being married to each other; and(ii) the opinion of the persons’ friends and acquaintances about the nature of the relationship; and(iii) any basis on which the persons plan and undertake joint social activities; and(d)the nature of the persons’ commitment to each other, including:(i) the duration of the relationship; and(ii) the length of time during which the persons have lived together; and(iii) the degree of companionship and emotional support that the persons draw from each other; and(iv) whether the persons see the relationship as a long term one.(4)If the Minister is considering an application for a visa of a class other than a class mentioned in subregulation (2), the Minister may consider any of the circumstances mentioned in subregulation (3).

Ratio Decidendi

Legal Principle Established

The Tribunal remits the applications for Partner (Temporary) (Class UK) visas, with the direction that the first named applicant meets the following criteria for a Subclass 820 (Partner) visa:·Regulation 1.20J for the purpose of cl 820.221(4) of Schedule 2 to the Regulations.Justin MeyerMemberATTACHMENT - Extract from Migration Regulations 19941.15A Spouse(1)For subsection 5F (3) of the Act, this regulation sets out arrangements for the purpose of determining whether 1 or more of the conditions in paragraphs 5F (2) (a), (b), (c) and (d) of the Act exist.(2)If the Minister is considering an application for:(a)a Partner (Migrant) (Class BC) visa; or(b)a Partner (Provisional) (Class UF) visa; or(c)a Partner (Residence) (Class BS) visa; or(d)a Partner (Temporary) (Class UK) visa;the Minister must consider all of the circumstances of the relationship, including the matters set out in subregulation (3).(3)The matters for subregulation (2) are:(a)the financial aspects of the relationship, including:(i) any joint ownership of real estate or other major assets; and(ii) any joint liabilities; and(iii) the extent of any pooling of financial resources, especially in relation to major financial commitments; and(iv) whether one person in the relationship owes any legal obligation in respect of the other; and(v) the basis of any sharing of day to day household expenses; and(b)the nature of the household, including:(i) any joint responsibility for the care and support of children; and(ii) the living arrangements of the persons; and(iii) any sharing of the responsibility for housework; and(c)the social aspects of the relationship, including:(i) whether the persons represent themselves to other people as being married to each other; and(ii) the opinion of the persons’ friends and acquaintances about the nature of the relationship; and(iii) any basis on which the persons plan and undertake joint social activities; and(d)the nature of the persons’ commitment to each other, including:(i) the duration of the relationship; and(ii) the length of time during which the persons have lived together; and(iii) the degree of companionship and emotional support that the persons draw from each other; and(iv) whether the persons see the relationship as a long term one.(4)If the Minister is considering an application for a visa of a class other than a class mentioned in subregulation (2), the Minister may consider any of the circumstances mentioned in subregulation (3).