Morita (Migration)

[2021] AATA 4905

Morita (Migration) [2021] AATA 4905 (22 December 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Asami Morita

REPRESENTATIVE:  Mrs Anne Frances O'Donoghue (MARN: 9368943)

CASE NUMBER:  1837476

HOME AFFAIRS REFERENCE(S):          BCC2017/2286339

MEMBER:SM Justin Owen

DATE:22 December 2021

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Partner (Temporary) (Class UK) visa, with the direction that the applicant meets the following criteria for a Subclass 820 (Partner) visa:

·cl 820.221(4) of Schedule 2 to the Regulations

Statement made on 22 December 2021 at 11:47am

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – sponsorship limitation – application made less than 5 years after previous sponsorship – limitation period now passed – decision without hearing necessary – no consideration of genuineness of relationship – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 360(2)(a)
Migration Regulations 1994 (Cth), Schedule 2, r 1.20J(1)(b), (2), cl 820.221(4)

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 Home Affairs to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 28 June 2017 on the basis of her relationship with her sponsor. At that time, Class UK contained only one subclass: Subclass 820 (Partner). The criteria for the grant of this visa are set out in Part 820 of Schedule 2 to the Migration Regulations 1994 (Cth) (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. 820.221(4) because at the time the applicant lodged her Partner visa application on 28 June 2017, their sponsor had sponsored/nominated a person as a spouse, de facto partner, fiancé or interdependent partner less than five years prior to the lodgement of the applicant’s application: reg. 1.20J(1)(b). The delegate had considered all of the information the applicant had submitted, and was not satisfied that the applicant and sponsor had established compelling circumstances to warrant the waiver of the requirement: reg. 1.20J(2).   

4. The applicant was represented in relation to the review.

5. In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the applicant on the basis of the material before it, pursuant to s. 360(2)(a) of the Act.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is whether the applicant is at the time of decision sponsored for the grant of a Partner visa as per reg. 1.20J.

   Is the applicant sponsored?

8. Clause 820.211 requires that at the time of application, the applicant meets one of several alternative sub criteria. These include 820.211(2)(c) which requires that the applicant was, at the time of application, sponsored by the sponsor, where such person has turned 18; or where they have not, by the sponsor’s parent or guardian who has turned 18 and is either an Australian citizen, permanent resident or eligible New Zealand citizen (as defined in reg. 1.03 of the Regulations).

9. At the time of decision, the applicant must continue to be sponsored by the sponsor, and the sponsorship must have been approved by the Minister and be still in force. Exceptions apply in certain circumstances where the sponsor has died, or family violence has occurred, or a child is involved. For visa applications made on or after 18 November 2016, the sponsor must also have consented for the Department to disclose to each 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. 820.221. Approval of sponsorship is subject to limitations contained in reg. 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 reg. 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 reg. 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 reg. 1.20KC for sponsors convicted of a relevant offence who have a significant criminal record in relation to the relevant offence where the visa application was made on or after 18 November 2016.

10. On the material before it, the Tribunal accepts that the applicant was sponsored at the time of application by the sponsor who is an Australian citizen and over the age of 18 years. 

11. Approval of sponsorship is subject to limitations contained in reg. 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.  Under reg. 1.20J, a sponsor is limited to a total, in a lifetime, of two approved sponsorships or nominations that lead to the 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 under review, is satisfied there are compelling circumstances affecting the sponsor: reg. 1.20J(2).

12. On the evidence before the Tribunal, the Australian citizen sponsor, Mr Quang Thai Le, undertook a Partner visa sponsorship previously on 30 June 2014.  Given the five-year limitation period (reg. 1.20J(1)(b)) the sponsor, unless he could establish compelling reasons, was unable to have a second sponsorship approved until at least five years after the first visa application was made.

13. At the time of the delegate’s decision on 12 December 2018, a period of five years had not yet elapsed since the sponsor’s previous sponsorship of a Partner visa application, and the delegate was not satisfied compelling circumstances had been established to warrant the waiver provision at reg. 1.20J(2).  Since the delegate’s refusal, the sponsor and applicant have now surpassed the five-year limitation period.  The Tribunal notes the calculation of the five-year period between the previous sponsorship and the current sponsorship is calculated from the date on which the previous visa application was made, to the Tribunal’s date of decision on the current sponsorship.

14. In the matter under review, the time subsequently commences on 30 June 2014 which was the date of the lodgement of the previous sponsorship by the sponsor.  The five-year limitation period therefore ended on 30 June 2019.    

15. At the time of the Tribunal’s decision, the sponsor (and applicant) therefore now satisfy this particular sponsorship requirement for the grant of a Partner visa.  At the time of decision, almost seven years and six months have elapsed since the lodgement of the sponsor, Mr Quang Thai Le’s, previous application to sponsor a partner visa.  Subsequently, the applicant now meets reg. 1.20J(1).  

16. On the evidence before the Tribunal, the requirements of cl. 820.221(4) are therefore now met.

17. The applicant, through their representative, has provided to the Tribunal extensive relationship documentation that speaks to the genuineness of the claimed relationship between the applicant and the sponsor.  The documentation addresses the financial aspects of the relationship, the nature of their claimed household, the social aspects of the relationship and the nature of the applicant’s and sponsor’s commitment to each other.  It was pointed out that the applicant and sponsor now have an eight-month old child of the relationship.  On 22 November 2021 the applicant through her representative requested the Tribunal, given the circumstances and the evidence submitted, make a decision on the remaining criteria for the grant of the visa, either on the papers or following a hearing. 

18. The Tribunal has considered the submissions.  The Tribunal observes that the delegate refused the application only on the basis of the applicant not meeting cl 820.221(4) and did not undertake any assessment of the genuineness of the relationship between the applicant and the sponsor.  Given the genuineness of the relationship has yet to be considered by the Department, the Tribunal considers the most appropriate action is to allow the delegate to assess the remaining criteria.  The Tribunal is also mindful of the President’s Directions that states as a general rule, where the delegate has made an adverse decision on particular criteria or issues, the Tribunal should restrict its review to those matters. 

19. 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 820 visa.

    DECISION

20. The Tribunal remits the application for a Partner (Temporary) (Class UK) visa, with the direction that the applicant meets the following criteria for a Subclass 820 (Partner) visa:

    ·cl 820.221(4) of Schedule 2 to the Regulations

    Justin Owen
    Senior Member