Nguyen (Migration) - [2021] AATA 4578

Nguyen (Migration) [2021] AATA 4578 (17 November 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Van Thang Nguyen
CASE NUMBER:  1817559
HOME AFFAIRS REFERENCE(S):          BCC2017/2285411
MEMBER:Margie Bourke
DATE:17 November 2021
PLACE OF DECISION:  Melbourne
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 820.211(2)(c) and cl.820.221(4) of Schedule 2 to the Regulations.

Statement made on 17 November 2021 at 4:39pm
CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – sponsorship limitation requirement – compelling circumstances – sponsorship permission less than five years after a Partner visa application – more than five years have passed at the time of decision – child born of the relationship – decision under review remitted
LEGISLATION
Migration Act 1958, ss 65, 360
Migration Regulations 1994, Schedule 2, cls 820.211, 820.221; rr 1.03, 1.20
CASES
Waensila v MIMA [2006] FCAFC 32
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 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).
The applicant applied for the visa on 28 June 2017 on the basis of his relationship with his 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.
The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl 820.211(2)(c) because the delegate found the applicant did not meet the sponsorship limitation requirements of r.1.20J, and the delegate was not satisfied that compelling circumstances affecting the sponsor existed for approving the sponsorship.
The tribunal has considered the information available to the Department, and the matters in the Department’s decision record dated 24 May 2018. The tribunal has considered the information and submissions provided to the Tribunal which was not available to the Department. The tribunal has decided that based on information available, it can make a decision favourable to the applicant without proceeding to a hearing, pursuant to s.360(2)(a) of the Act.
The following are the written reasons that the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
SPONSORSHIP cl 820.211(2)(c)
Is the applicant sponsored?
Clause 820.211 requires 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).
I have considered the application form lodged online on 28 June 2017, and the sponsorship form lodged online on 18 January 2018. I have considered the sponsor’s birth certificate and I am satisfied she was born in 1982. In the Department’s decision record the delegate records that the sponsor is an Australian permanent resident, and I accept this is the case. I am satisfied that the applicant is sponsored by an Australian permanent resident who is over the age of 18 years.
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.
The issue in this review is an assessment of the limitation on approval of sponsorships in spouse and partner and prospective marriage visas pursuant to r.1.20J, and whether r.1.20J is engaged in this review at the time of decision. This regulation requires, amongst other limitations, that if a person has been granted a relevant permission, not less than five years has passed since the date of making the application for that first relevant permission and if the sponsor was granted a relevant permission as the spouse or partner or prospective spouse or partner on the basis of the sponsorship and nomination, not less than five years has passed since the date of making the application for that relevant permission.
In this matter, the information provided in the Department’s decision record dated 24 May 2018, a copy of which was provided to the tribunal by the applicant, it is recorded that the sponsor applied for a Partner visa on 29 August 2013, and was granted a subclass 820 visa on 8 August 2014. The sponsor was granted a relevant permission as the spouse, partner or prospective spouse or partner of another person. The application for the visa which is the subject of this review was lodged on 28 June 2017. The tribunal is satisfied the application for the visa was made within five years of the sponsor making an application for the relevant permission and the sponsor being granted a relevant permission as the spouse or partner for a subclass 820 Partner visa. The tribunal is satisfied that at the time of application, when the requirements of cl.820.211(2)(c) is to be met, r.1.20J is engaged.
However at the time of this decision more than five years have passed since the date the sponsor made the application for the relevant permission, and more than five years have passed since the sponsor was granted the relevant permission.
For this reason, the tribunal is satisfied that the limitations of approval of sponsorships as set out in r.1.20J are engaged in this application for the visa at the time of application. The requirements of r.1.20J do not apply at the time of decision, as the five year period has ceased.
The principles in the judgement of Waensila v MIMA [2006] FCAFC 32 applies to the consideration of facts that occurred after the date of application when considering whether there are compelling circumstances. The text of r.1.20J(2) that allows the approval of the sponsorship where the Minister is satisfied that there are compelling circumstances affecting the sponsor, does not contain words confining the consideration of compelling circumstances to the time of application. The Tribunal has considered whether there are compelling circumstances for the purposes of r.1.20J, and the tribunal is satisfied that there are compelling circumstances affecting the sponsor that allow approval of the sponsorship of an applicant for the visa pursuant to r.1.20J.
The tribunal invited the applicant to a hearing and subsequently received extensive submissions from the applicant and the sponsor. The submissions included the birth certificate of the child born in July 2020 which recorded the applicant and sponsor as the parents of that child. This submission also included photographs, including the day of the child’s birth, her subsequent birthday and photographs of the parents with the child, and photographs of the family with other people. I am satisfied that the applicant and sponsor are the parents of a daughter born in July 2020.
The submissions also included financial documents including tax returns of the applicant and sponsor, joint bank statements over the period 2019 to 2021, utility bills and photographs.
The tribunal accepts that the applicant and sponsor have a dependent child who is dependent on the applicant and sponsor. The tribunal is satisfied that fact the applicant and sponsor have a dependent child amounts to compelling circumstances affecting the sponsor for the approval of the sponsorship. The tribunal is satisfied that the applicant meet the requirements of r.1.20J(2), because there are compelling circumstances for the approval of the sponsorship.
The tribunal therefore finds that the applicant meets the sponsorship requirements of cl.820.211(2)(c).
The tribunal is satisfied that the sponsorship in cl.820.211(2)(c) should be approved and still be in force at the time of this decision. The tribunal is also satisfied that the five year period has ceased at the time of decision and the limitation requirements of r.1.20J do not apply. For both these reasons, the tribunal finds that the applicant meets the requirements of cl.820.221(4) at the time of decision.
On the evidence before the tribunal, the requirements of cl 820.211(2)(c) and cl.820.221(4) are met.
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
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 820.211(2)(c) and cl.820.221(4) of Schedule 2 to the Regulations.
Margie Bourke
Member