Ni Ketut Alit Cahayani (Migration)

[2023] AATA 695

Ni Ketut Alit Cahayani (Migration) [2023] AATA 695 (8 March 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Putri Ni Ketut Alit Cahayani

REPRESENTATIVE:  Mr Rhys Alexander Cochrane (MARN: 1568361)

CASE NUMBER:  2112914

HOME AFFAIRS REFERENCE(S):          BCC2020/1461889

MEMBER:Kira Raif

DATE:8 March 2023

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 820.211(1)(a) of Schedule 2 to the Regulations

Statement made on 8 March 2023 at 08:35pm

CATCHWORDS
MIGRATION –Partner (Temporary) (Class UK) visa – Subclass 820 – applicant provided the completed form 40SP to the Tribunal – at the time of this decision, the sponsorship form has been provided – applicant is now sponsored – decision under review remitted  

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, r 1.03, Schedule 2, cl 820.211

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 is a national of Indonesia, born in April 1996. She applied for the visa on 30 April 2020 on the basis of her relationship with her sponsor. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl 820.211 because the applicant failed to provide the sponsorship form.

3. The issue in the present case is whether the applicant  was sponsored at the time the application was made.

4. No hearing was held in this case as the Tribunal was able to make a favourable decision on the material before it. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   Relevant law

5. At the time the application was made, 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).

6. 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 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).

7. 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.

8. 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.

   Was the applicant sponsored?

9. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that  when the applicant made the application, it was not accompanied by the sponsorship form 40SP. The delegate wrote the applicant in February and May 2021 asking for the form to be provided and it is recorded that the applicant had not done so.

10. The applicant provided the completed form 40SP to the Tribunal. The Tribunal finds that at the time of this decision, the sponsorship form has been provided. Although that form was not submitted when the application was made, the Tribunal is mindful that there is no statutory requirement for the sponsorship to be evidenced through any particular form. That  is, form 40SP is not a prescribed form and the sponsorship can be evidenced by other means.

11. The Tribunal finds that the applicant is now sponsored. In the absence of any evidence to the contrary, the Tribunal finds that the submission of the sponsorship form subsequent to the time of application evidences the sponsor’s intention to sponsor the applicant at the time the application was made and also evidences the act of sponsorship. The Tribunal is satisfied that the sponsorship requirement in cl. 820.211 is met.

12. However, that clause also requires the applicant to be sponsored by a spouse. No assessment has been made in this case by the delegate as to whether the applicant and sponsor are spouses and in the Tribunal’s view, that assessment is more appropriately undertaken, in the first instance, by the delegate. For that reason, the Tribunal does not make a finding that cl. 820.211 is met in its entirety.

13. There is no evidence that the applicant was a holder of a Subclass 771 (Transit) visa when the application was made. The Tribunal finds that the applicant meets cl. 820.211(1)(a).

    Conclusion

14. 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

15. 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(1)(a) of Schedule 2 to the Regulations

    Kira Raif
    Senior Member