Mashot (Migration)

[2022] AATA 4322

Mashot (Migration) [2022] AATA 4322 (2 September 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Malual Manyang Malual Mashot

VISA APPLICANT:  Mrs Hellena Nyanathoi Nemeri Sileman

REPRESENTATIVE:  Mr Emete Joesika (MARN: 0100301)

CASE NUMBER:  1818909

DIBP REFERENCE(S):  BCC2015/3553572

MEMBER:David Crawshay

DATE:2 September 2022

PLACE OF DECISION:  Melbourne

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; and

·cl.309.222 of Schedule 2 to the Regulations.

Statement made on 02 September 2022 at 12:16pm

CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – sponsorship requirements – sponsorship undertakings – legal capacity to understand – intellectual disability – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.20; Schedule 2, cls 309.213, 309.222

CASES
Babar v MICMSMA [2020] FCAFC 38

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 26 June 2018 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 20 November 2015 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.309.213 because the delegate was not satisfied that the review applicant was her sponsor. A copy of the delegate’s decision was provided to the Tribunal by the review applicant.

4. The review applicant appeared before the Tribunal on 1 September 2022 to give evidence and present arguments. The Tribunal also received oral evidence from Mrs Bom Ater Deng, who is the mother of the review applicant. The hearing was conducted with the assistance of an interpreter in the Dinka and English language. The review applicant was represented in relation to the review.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issues in the present case are whether the visa applicant was sponsored by the sponsor under cl.309.213 at the time of application and whether the sponsorship under cl.309.222 is approved by the minister and is still in force at the time of this decision.

   Were the sponsorship requirements met at the time of application?

7. 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 application, the review applicant submitted a Form 40SP sponsorship form dated 24 October 2015 where he was listed as the sponsor of the visa applicant.

8. As alluded to above, the delegate was not satisfied that the review applicant was the sponsor of the visa applicant. In coming to this finding, the delegate referred to information from health professionals regarding the review applicant, some in response to a s.57 “natural justice” letter sent to the visa applicant by the Department. That letter invited the visa applicant to comment on adverse information regarding the review applicant’s legal capacity to understand the sponsorship obligations under r.1.20(2)(c). Although the issue of legal capacity was not mentioned in the delegate’s decision, the Tribunal accepts as a matter of logic that this was the reason for the refusal.

9. Regulation 1.20 relates to sponsorship undertakings. Regulation 1.20(1) says that a sponsor of an applicant for a visa is a person who undertakes the obligations stated in r.1.20(2). Regulation 1.20(2)(c), being the applicable subregulation in this case, says that the obligations of a sponsor in relation to an applicant for a Class UF visa is to assist the applicant, to the extent necessary, financially and in relation to accommodation during the period of two years immediately following the applicant’s first entry into Australia after the grant of the visa.

10. In the aforementioned Form 40SP sponsorship form dated 24 October 2015, the review applicant agreed to assist the visa applicant, to the extent necessary, financially and in relation to accommodation in the first two years after she first enters Australia as the holder of the partner visa.

11. At hearing, the Tribunal questioned the review applicant about the nature of his relationship with the visa applicant as well as what he intended to do if she were allowed to come to Australia. He replied that he was married to the visa applicant and was her husband, and pointed to a photograph of him, her and his mother on their wedding day. When asked why he considered himself to be married, he pointed to his wedding ring.

12. The review applicant said that the visa applicant lives in Uganda and that he wanted her to come to Australia. When asked where the visa applicant will live if she comes to Australia, he replied that she will stay with him at his house. He was asked what would happen if she needed to buy clothes or food, and he replied that his mother would pay for this.

13. The review applicant was asked for how long he would need to accommodate the visa applicant. It was obvious through his answers that he envisaged her staying with him in the family home for the foreseeable future. Likewise, it was clear that he anticipated the visa applicant being supported financially by his mother for the foreseeable future.

14. The Tribunal has had regard to the answers given by the review applicant at hearing. It has also had regard to the authorities on the issue of sponsorship. In this regard, it has considered the decision of the Full Court of the Federal Court in Babar v MICMSMA [2020] FCAFC 38, where it was held that there is no requirement for a sponsor to have the capacity to fulfil the sponsorship obligations under r.1.20, and that simply giving the undertakings was sufficient.[1] The Tribunal therefore accepts that it is only obliged to assess whether the review applicant, in purporting to give the sponsorship undertakings in respect of the visa applicant, has the capacity to understand those undertakings. Moreover, and in the absence of authorities, it accepts that ascertaining whether the sponsor had such a capacity is a finding of fact. In making this finding, the Tribunal may consider and put weight on objective medical evidence about the review applicant’s legal capacity. However, it must weigh this evidence against other evidence such as, in this case, the review applicant’s testimony at hearing and his answers to the Tribunal’s questions.

    [1] Babar v MICMSMA [2020] FCAFC 38, [36] (Steward, Colvin and Abraham JJ).

15. In this regard, the Tribunal accepts that the review applicant has been assessed as having an intellectual disability. However, it has weighed this evidence against the clear answers he gave at hearing about how the visa applicant would be accommodated and financially supported. It accords more weight to the latter and accepts that he understands the need to provide for the visa applicant financially and in terms of accommodation at the time when the visa applicant arrives in Australia and for a period of at least two years after that.

16. Based on the information in front of it and the findings made above, the Tribunal accepts that the visa applicant was sponsored by the review applicant. It finds that cl.309.213 is met.

    Are the sponsorship requirements met at the time of decision?

17. Clause 309.222 requires that, at the time of decision, the sponsorship mentioned in cl.309.213 had been approved by the minister and is still in force. Such approval is subject to limitations under.

18. Approval of sponsorship is subject to limitations contained in Division 1.4B of Part 1 of the Regulations. Specifically, these comprise r.1.20J, 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, r.1.20KA, which sets a limit on the period before which certain Parent visa holders can sponsor another person for a Partner visa, and 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.

19. There is no information to show that the review applicant is limited from sponsoring the visa applicant due to any of the limitations under Division 1.4B of Part 1. Specifically, there is no evidence that he has sponsored applicants to come to Australia pursuant to r.1.20J or r.1.20KA, or that he has been charged with or convicted of a registrable offence pursuant to r.1.20KB. None of the other limitations under that Division is applicable.

20. The Tribunal must now consider whether to approve the sponsorship. In doing so, it has considered that the review applicant, through his mother, has already been remitting money to the visa applicant and so in that regard has already been supporting her financially. To the extent that it has a discretion to consider relevant matters before approving the sponsorship, the Tribunal is satisfied based on this evidence that the sponsorship should be approved.[2]

    [2] Ibid, [43]. The alternative is that, there being no specific limitation placed on the sponsorship by the Regulations, the sponsorship must be approved because the undertakings in r.1.20 are not enforceable.

21. Lastly, there is no information to show that the sponsorship has been withdrawn, and so the sponsorship remains in force at the time of this decision.

22. Therefore, at the time of this decision, the requirements of cl.309.222 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 309 visa. In doing so, the Tribunal has made no findings those other criteria but would make the point that, for various reasons, this visa application has been on-foot for almost seven years.

    decision

24. 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; and

    ·cl.309.222 of Schedule 2 to the Regulations.

    David Crawshay
    Member