Makan (Migration)

[2019] AATA 3797

Makan (Migration) [2019] AATA 3797 (2 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Dhanush Makan

VISA APPLICANT:  Mrs Priyanka Makan

CASE NUMBER:  1721144

DIBP REFERENCE(S):  BCC2016/2717622

MEMBER:David Barker

DATE:2 July 2019

PLACE OF DECISION:  Sydney

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 02 July 2019 at 8:43am

CATCHWORDS
MIGRATION  – refusal – Partner (Provisional) (Class UF) visa - subclass 309 – whether sponsorship requirements had been met – five-year period has now passed –decision under review remitted

LEGISLATION
Migration Act 1958, ss 65, 360
Migration Regulations 1994,rr 1.03, 1.20, Schedule 2, cls 309.213, 309.222

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 Immigration on 9 August 2017 to refuse to grant the visa applicant a Partner (Provisional) (Class UF) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 17 August 2016 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.

3. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.309.222 of Schedule 2 to the Regulations because the delegate found that the review applicant did not meet the sponsorship limitations in reg.1.20J(1)(c) and there were no compelling circumstances why that restriction should not be applied.

4. In reaching its decision the Tribunal was able to find in favour of the applicant on the basis of the material before it, and determined not to invite the applicant to appear at a hearing pursuant to section 360(2)(a) of the Act.

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

   BACKGROUND

6. The visa applicant is a citizen of India.  She is 29 years old.

7. The review applicant is the sponsor of the visa applicant. He was born in India.  He first arrived in Australia in May 2009 on a Student visa and was subsequently granted Australian citizenship in February 2014. The review applicant was previously married, from August 2013 to October 2015.  The review applicant’s previous wife applied for a Combined Partner (Subclass 820/801) visa on 15 January 2014. The review applicant was approved as a sponsor in relation to his previous wife’s Partner visa application and she was granted a relevant permission on the basis of that approved sponsorship.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether the sponsorship requirements are met.

   Are the sponsorship requirements met?

9. Clause 309.213 requires that the visa applicant is sponsored by the review applicant, where such person has turned 18; or where they have not, by the review applicant’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). Both the review applicant and the visa applicant were over the age of 18 years at the time of the application. Therefore, cl.309.213 is satisfied.

10. At the time of decision, cl.309.222 requires that the sponsorship referred to in cl.300.213 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.

11. 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.

12. 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 is satisfied there are compelling circumstances affecting the sponsor: r.1.20J(2).

13. The Tribunal finds the review applicant was approved as a sponsor in relation to his previous spouse’s Partner visa application and that she was granted a relevant permission on the basis of that approved sponsorship.  The Tribunal finds that as a consequence of the action of r.1.20J, the review applicant was unable to sponsor a further person, in relation to a visa such as a Partner visa, for a five-year period from the date on which his previous spouse lodged her application for a partner visa namely 15 January 2014. This five year period elapsed on 15 January 2019.

14. As the Tribunal is required to consider the application afresh and as the five-year period has now passed, at the time of this decision the sponsorship of the visa applicant’s application for a Partner visa is no longer restricted by reg.1.20J(1)(c).

15. There is no information before the Tribunal that any of the other criteria for the limitations on approval of sponsorship in reg.1.20J apply to the review applicant. There is no information before the Tribunal that the other restrictions for sponsorship in reg.1.20KA and reg.1.20KB apply to the review applicant.

16. The Tribunal has reviewed the online ‘Sponsorship for a partner to migrate to Australia’ form completed by the review applicant on 31 August 2016.  The Tribunal finds that the review applicant has in the section of that form with the title ‘Sponsorship declarations’ entered the word ‘Yes’ to a question as to whether he agrees that the Department may inform the migrating applicant, and any non-migrating person who can lawfully to determine where the applicant’s migrating minor child may live, about the convictions or charges it becomes aware of through either via response to previous questions, other information provided, or liaison with relevant Commonwealth, state or territory agencies.

17. Therefore, on the evidence before the Tribunal the requirements of cl.309.213 and cl.309.222 are met.

18. 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

19. 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

    David Barker
    Member