Luangkratok (Migration)

[2022] AATA 89

Luangkratok (Migration) [2022] AATA 89 (4 January 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Kusuma Luangkratok

CASE NUMBER:  1915024

HOME AFFAIRS REFERENCE(S):          BCC2018/2205360

MEMBER:M. Edgoose

DATE:4 January 2022

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 820.211(2)(c) of Schedule 2 to the Regulations

·cl 820.221A of Schedule 2 to the Regulations.

Statement made on 04 January 2022 at 9:07am

CATCHWORDS

MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – sponsorship limitation requirement – compelling circumstances – previously sponsored a Partner visa applicant within five years of new application – more than five years have passed at the time of decision – decision under review remitted           

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 820.211, 820.221; rr 1.03, 1.20

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 22 May 2018 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 820.211(2)(c).

4. The applicant was represented in relation to the review by her registered migration agent.

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. According to the delegate’s decision the visa applicant’s sponsor has previously sponsored a person who applied for a Partner visa on 25 November 2015. A subclass 820 visa was granted from that application on 25 November 2016.

10. Given that this visa application was made on 22 May 2018 the visa applicant’s sponsor in this matter was found not to meet regulation 1.20J. Regulation 1.20J prescribes limitations on approving the sponsorship relating to partner visa applicants by persons who have sponsored/nominated a person as a spouse, de facto partner, fiancé or interdependent partner or by persons who themselves have sponsored/nominated a person as a spouse, de facto partner, fiancé or interdependent partner, for at least 5 years after the visa application was made.

11. The sponsor in this matter was a sponsor for a different Subclass 820 Partner visa on 25 November 2015 and then again for a different Subclass 820 visa application on 22 May 2018. Based on this the applicant’s sponsor in this matter has been affected by regulation 1.20J limitation which prevents the applicants sponsor from being a sponsoring partner.  

12. However, the Tribunal notes that the first partner visa application was made on 25 November 2015. Therefore, the period of five years lapsed on 25 November 2020 as specified in regulation 1.20J(1)(b). Given that the time period of five years has lapsed regulation 1.20J no longer applies to the sponsor in this matter at time of this decision.

13. On the evidence before the Tribunal the requirements of cl 820.211 and cl 820.221 are met.

14. 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

15. 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 820.211(2)(c) of Schedule 2 to the Regulations

    ·cl 820.221A of Schedule 2 to the Regulations

    M. Edgoose
    Member