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

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).
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.
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.
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.
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.
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.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the sponsorship has been approved and is still in force.
Are the sponsorship requirements met?
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,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Michalke (Migration)

Details

AGLC: Michalke (Migration) [2018] AATA 907
Case: [2018] AATA 907
Decision Date: 19 February 2018

CaseChat Overview and Summary

This matter concerned an application for a Partner (Provisional) (Class UF) visa, subclass 309. The applicant sought review of a decision to refuse the visa. The central issue was whether the applicant's sponsor, Mr Michalke, met the sponsorship requirements under the Migration Regulations 1994 (Cth).

The Tribunal was required to determine if the sponsorship had been approved and was still in force, as mandated by clause 309.222. This involved considering the limitations imposed by regulation 1.20J, which restricts a sponsor to a maximum of two approved sponsorships for partner visas or visas granted under domestic violence provisions. Crucially, if a sponsor has had one previous sponsorship, a minimum of five years must elapse from the date of the earlier visa application, unless compelling circumstances justify a waiver.

The Tribunal considered Mr Michalke's personal circumstances, including his Australian birth, his return to Australia for work, and the deaths of his father and brother. It also noted his previous sponsorship of a partner who returned to Germany in April 2016, and that five years had not yet passed since that earlier visa application. The Tribunal applied the principles from *Babicci v MIMIA* [2004] FCA 1645 and [2005] FCAFC 77, interpreting "compelling circumstances" as those that evoke interest or attention in a powerfully irresistible way, or are so powerful as to lead to a positive finding that the provision should be waived.

Ultimately, the Tribunal was not satisfied that compelling circumstances existed to waive the five-year waiting period. Consequently, the sponsorship requirements under clause 309.222 were not met. The Tribunal affirmed the decision not to grant the visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in the present case is whether the sponsorship has been approved and is still in force. Are the sponsorship requirements met? 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 (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. 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). 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. 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. 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. 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.

Decision

Reasons for decision

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

Ratio Decidendi

Legal Principle Established

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