Michalke (Migration)

[2018] AATA 907

Michalke (Migration) [2018] AATA 907 (19 February 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Ralf Michalke

VISA APPLICANT:  Mrs Andrea Beesen

CASE NUMBER:  1621538

DIBP REFERENCE(S):  BCC2016/3951249 OSF2016/029534

MEMBER:Kate Millar

DATE:19 February 2018

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal affirms the decision not to grant the visa applicant a Partner (Provisional) (Class UF) visa.

Statement made on 19 February 2018 at 12:33pm

CATCHWORDS

Migration – Partner (Provisional) (Class UF) visa – Subclass 309 (Spouse (Provisional) – Sponsor subject to a sponsorship bar – Approximately five months before the bar to sponsoring  expires – No compelling circumstances

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

CASES
Babicci v MIMIA [2004] FCA 1645

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 December 2016 to refuse to grant Mrs Beeson a Partner (Provisional) (Class UF) visa under s.65 of the Migration Act 1958 (the Act).

2. Mrs Beesen applied for the visa on 2 November 2016 on the basis of her relationship with her sponsor, Mr Michalke. 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), and Mrs Beesen must meet the primary criteria to be granted the visa.

3. To be granted the visa, at the time of the decision the sponsorship of the applicant by the sponsor must have been approved and still be in force (cl.309.222). Where a sponsor has previously sponsored a spouse, the effect of r.1.20J is that the Minister must not approve a further sponsorship for five years from the date of the visa application unless there are compelling circumstances affecting the sponsor.

4. Mr Michalke has previously sponsored a spouse, with the application for the visa being made on 22 July 2013 and granted on 11 February 2014. The delegate refused Mrs Beesen’s visa application because the delegate found that the sponsorship could not be approved under r.1.20J, and the delegate was not satisfied there were compelling circumstances which affected Mr Michalke.

5. As a result the delegate was not satisfied Mrs Beesen met the requirement in cl.309.22 that the sponsorship has been approved by the Minister and is still in force. 

6. Mr Michalke appeared before the Tribunal on 15 February 2018 to give evidence and present arguments. The Tribunal also received oral evidence from Mrs Beesen.

7. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether the sponsorship has been approved and is still in force. 

   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).

10. At the time of decision, this sponsorship must have been approved and still be in force (cl.309.222). 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.

11. Regulation 1.20J of the Regulations 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. Under r.1.20J, a sponsor is limited to a total, in a lifetime, of two approved sponsorships or nominations that lead to a grant of a partner visa (or entry permit) or a visa (or entry permit) granted on the basis of the domestic violence provisions. 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, or the Tribunal on review, is satisfied there are compelling circumstances affecting the sponsor: r.1.20J(2).

12. The expression ‘compelling circumstances’ is not defined in the legislation. The Tribunal must consider whether the circumstances are such that they evoke interest or attention in a powerfully irresistible way: Babicci v MIMIA [2004] FCA 1645 or are ‘so powerful that they lead the [Tribunal] to make a positive finding that the [provision] should be waived’: Babicci v MIMIA [2005] FCAFC 77.

13. Mr Michalke was born in Australia, and returned to Germany with his parents and siblings when he was five years old.  He has always held an attachment to Australia, and returned to Australia to work here in 2013.  His father and his brother have since died, and his mother and remaining brother live in Berlin.

14. On migrating to Australia to work as a Mechanical Engineer for his employer in Germany, Mr Michalke sponsored his previous partner.  She did not adjust to the change in culture and language, and while obtaining qualifications in aged care, was unable to get a job.  His previous partner returned to Germany in April 2016, and notified the Department that the relationship had ceased and she was Leaving Australia.

15. Mr Michalke’s relationship with Mrs Beesen started in 2012 and developed to the point where she joined him on a motorcycle trip to Ayres Rock in May 2015, when his relationship with his previous partner was deteriorating.  They married in Australia on 1 November 2016. 

16. Mrs Beesen travelled to Australia to attend the hearing.  Both she and Mr Michalke gave convincing evidence about the depth of their relationship and their desire to be together.  They are looking at opening a motorcycle shop in Australia.  They travel regularly to see each other which is financially draining. 

17. On being asked about the effect of having to apply again for a spouse visa when the five year period expires, Mr Michalke said he could afford the visa application fee, but they did not want to be apart for the 14-20 months he has been told it would take to process the application.  Mr Michalke was unable to answer what he would do if this visa application is not successful.  Understandably, Mrs Beesen does not want to give up her job in Germany until she has some certainty about her visa. 

18. A potential compelling circumstance is that there is only approximately five months before the bar to sponsoring Mrs Beesen expires.  The relationship is reasonably longstanding, with them marrying approximately 14 months ago.  Otherwise, the circumstances raised by Mr Michalke and Mrs Beesen are their desire to be together and the potential time it will take to process a new visa application.  Mr Michalke’s primary ties in terms of family are in Germany where he lived for most of his life.  I accept that he has a strong emotional tie to Australia, and this is where he wants to live and that both he and Mrs Beesen see their future as being in Australia.  However I do not see that as a compelling circumstance. 

19. Having considered all the information before me, I am not satisfied there are compelling circumstances affecting the sponsor. As a result, as five years has not passed since the relevant permission was granted, the sponsorship cannot be approved in accordance with r.1.20J and the requirements of cl.309.222 are not met.

    DECISION

20. The Tribunal affirms the decision not to grant the visa applicant a Partner (Provisional) (Class UF) visa.

    Kate Millar
    Member