Martine (Migration)

[2023] AATA 690

Martine (Migration) [2023] AATA 690 (8 March 2023)

DECISION RECORD

DIVISION:  Migration & Refugee Division

REVIEW APPLICANT:  Mr Keith Sydney Martine

VISA APPLICANT:  Mrs Bunnat Koy

REPRESENTATIVE:  Mr Pablo Ramirez

CASE NUMBER:  1928653

DIBP REFERENCE(S):  BCC2019/375557

MEMBER:  Kira Raif

DATE:  8 March 2023

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.309.226 of Schedule 2 to the Regulations

Statement made on 8 March 2023 at 09:11am

CATCHWORDS
MIGRATION –Partner (Provisional) (Class UF) visa - subclass 309 – applicant failed to provide the sponsorship form 40SP –  applicant provided the completed form 40SP – Tribunal finds that the applicant is now sponsored – sponsorship requirement in cl. 309.213 is met – decision under review remitted   

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, rr 1.03, Schedule 2, cls 309.213, 309.226

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 1 October 2019 to refuse to grant the visa applicant a Partner (Provisional) (Class UF) visa under s.65 of the Migration Act 1958 (the Act).

1. The visa applicant is a national of Cambodia, born in September 1969. The visa applicant applied for the visa on 7 February 2019 on the basis of her relationship with her sponsor, the review applicant. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.309.213 because the applicant failed to provide the sponsorship form 40SP. The sponsor (the review applicant) seeks review of the decision.

1. No hearing was held in this case as the Tribunal was able to make a favourable decision on the material before it.

1. The review applicant was represented in relation to the review. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

Relevant law

1. At the time the application was made, 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).

1. 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). At the time of decision, this sponsorship must have been approved and still be in force.

Was the applicant sponsored?

1. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that when the applicant made the application, it was not accompanied by the sponsorship form 40SP. The delegate wrote the applicant in June 2019 asking for the form to be provided and it is recorded that the visa applicant had not done so.

1. The applicant provided the completed form 40SP to the Tribunal, as well as a number of other documents evidencing her relationship with the sponsor.

1. The Tribunal finds that at the time of this decision, the sponsorship form has been provided. Although that form was not submitted when the application was made, the Tribunal is mindful that there is no statutory requirement for the sponsorship to be evidenced through any particular form. That is, form 40SP is not a prescribed form and the sponsorship can be evidenced by other means.

1. The Tribunal finds that the applicant is now sponsored. In the absence of any evidence to the contrary, the Tribunal finds that the submission of the sponsorship form subsequent to the time of application evidences the sponsor’s intention to sponsor the applicant at the time the application was made and also evidences the act of sponsorship. The Tribunal is satisfied that the sponsorship requirement in cl. 309.213 is met.

1. However, that clause also requires the applicant to be sponsored by a spouse. No assessment has been made in this case by the delegate as to whether the applicant and sponsor are spouses and in the Tribunal’s view, that assessment is more appropriately undertaken, in the first instance, by the delegate. For that reason, the Tribunal does not make a finding that cl. 309.213 is met.

1. The Tribunal is satisfied that if the visa applicant had previously been in Australia, she satisfies the special return criteria in Items 5001 and 5002. The Tribunal finds that the visa applicant meets cl. 309.226. The Tribunal made a finding in relation to that provision, rather than cl. 309.213 which was the basis of the primary decision, to enable the assessment to be made as to whether the applicant is the spouse of the sponsor.

Conclusion

1. 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

1. The Tribunal remits the application for a Partner (Provisional) (Class UF) visa, with the direction that the applicant meets the following criteria for a Subclass 309 visa:

   · cl 309.226 of Schedule 2 to the Regulations Kira Raif

   Senior Member