Ly (Migration)

[2022] AATA 409

Ly (Migration) [2022] AATA 409 (17 February 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Thanh Hoa Ly

REPRESENTATIVE:  Ms Kim Pham (MARN: 1387806)

CASE NUMBER:  1821462

HOME AFFAIRS REFERENCE(S): BCC2015/1450255 BCC2019/581038

MEMBER:Russell Matheson

DATE:17 February 2022

PLACE OF DECISION:  Sydney

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; and

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

Statement made on 17 February 2022 at 5:37pm

CATCHWORDS

MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – sponsorship requirements – time limit prior to sponsorship – sponsor is a Contributory Parent visa holder – parties re-married in Australia – 5 years elapsed since visa grant – decision under review remitted          

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 820.211, 820.212, 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 (Mr Ly) applied for the visa on 18 May 2015 on the basis of his relationship with his sponsor. The sponsor (Ms Huynh) applied for a Contributory Parent (Subclass 143) visa on 5 December 2012. She was granted the visa on 30 September 2014.

3. The primary criteria must be satisfied by at least one applicant. The primary criteria includes cl.820.212(2)(c) which requires the applicant to be sponsored by the sponsor at the time of application, and cl.820.221(4) which requires the sponsorship to continue; to have been approved by the Minister and be still in force.

4. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl 820.211(2)(c) of Schedule 2 to the Regulations, which set out sponsorship requirements for the visa subclass. In particular, the delegate found that the applicant Mr Ly was subject to the provisions of regulation 1.20KA(2) which set a limit on the period before certain persons may be sponsored for a Partner visa. The delegate was not satisfied the sponsorship requirements had been met. The applicant seeks review of the delegate’s decision.

5. The Tribunal exercised its discretion to hold the hearing by video. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical, and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

6. The applicant appeared before the Tribunal on 15 February 2022 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

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

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

   Background

9. The relevant chronology of events for ease of reference is as follows:

   ·The sponsor and the visa applicant married in 1981.

   ·They divorced in October 2012.

   ·On 5 December 2012, the sponsor lodged a Contributory Parent Subclass 143 visa. This was granted on 30 September 2014.

   ·On 18 April 2015, the sponsor, and the visa applicant re-married.

   ·On 18 May 2015, the visa applicant applied for the Subclass 820 Partner visa.

10. The 5 years limitation period under reg 1.20KA(2) in this case was 30 September 2014 – 30 September 2019.

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. The Tribunal has before it the applicant’s file from the Department of Home Affairs (the Department); its own file; and a copy of the Department’s decision provided by the applicant to the Tribunal. The Department’s file contains a copy of the applicant and sponsors passports and marriage certificate.

12. The delegate has not made an assessment of the primary criteria to be satisfied at the time of application. Having regard to the President’s Direction - Conducting Migration and Refugee Reviews the Tribunal will restrict its review to the matters decided by the delegate.

13. The issue in the present case is whether Regulation 1.20KA applies to limit or prevent the approval of the sponsorship.

    Is the applicant sponsored?

14. 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).

15. 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.

16. Approval of sponsorship is subject to limitations including, relevantly for the present case, r.1.20KA. Regulation 1.20KA of the Regulations sets a limit on the period before which a Case Number 1732730 Page 3 of 3 certain person can sponsor another person for a Partner visa. Regulation 1.20KA applies where a Subclass 143 (Contributory Parent) or Subclass 864 (Contributory Aged Parent) visa holder, who was granted that visa on or after 1 July 2009, seeks to sponsor another person after that date. If the person to be sponsored for a Partner or a Prospective Marriage visa was the proposed sponsor’s spouse or de facto partner on or before the day the Subclass 143 or 864 visa was granted, a period of 5 years must have passed since the date the sponsor’s visa was granted. These requirements apply unless there are compelling circumstances affecting the applicant: r.1.20KA(3).

17. Specifically, the visa applicant must either have had compelling reasons (other than financial) for not applying at the same time as the proposed sponsor for, a Subclass 143 or 864 visa; or if the visa applicant withdrew such an application, compelling reasons (other than financial) for withdrawing the application.

18. In the present case, the sponsor was granted a Contributory Parent visa on 5 December 2012. Information provided by the applicant to the Department indicates that the applicant and sponsor first married on 29 December 1981 and subsequently divorced on 22 October 2012 following marital disagreements over finances. The sponsor then migrated to Australia, having been granted a Contributory Parent visa sponsored by her biological son from the marriage. The applicant travelled to Australia in March 2015 and the parties reconciled their  relationship and remarried in April 2015, before lodging the current Partner application on 18 May 2015.

19. On the basis of the evidence before the Tribunal, it is satisfied that the applicant is sponsored by an Australian permanent resident, and the sponsorship is not prohibited by subclause (2B) from being a sponsoring partner. The Tribunal finds that the applicant meets cl.820.211(2)(c).

20. As the sponsor was granted a Contributory Parent visa, the Tribunal has considered the application of r.1.20KA to the application, which applies to limit the approval of sponsorship. Approval of sponsorship is a time of decision criteria in cl.820.221(4).

21. At time of decision, the Tribunal notes that 5 years has passed since the sponsor was granted his Contributory Parent visa. Therefore, r.1.20KA no longer applies to prevent or limit the approval of sponsorship in the present case. The Tribunal observes that; accordingly, it is unnecessary to consider the additional issue of whether applicant was the proposed sponsor’s spouse or de facto partner on or before the day the Subclass 143 or 864 visa was granted because, in any event, the period of 5 years has passed.

22. On the evidence before the Tribunal the requirements of cl.820.211(2)(c) and cl.820.221(4) are met.

23. 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

24. 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; and

    ·cl 820.221(4) of Schedule 2 to the Regulation.

    Russell Matheson
    Member