PATEL (Migration)

[2019] AATA 2128

PATEL (Migration) [2019] AATA 2128 (9 May 2019)

CORRIGENDUM

DIVISION:  Migration & Refugee Division

REVIEW APPLICANT:  Mr Vikas Sureshbhai PATEL

VISA APPLICANT:  Ms Arti RAJPUT

CASE NUMBER:  1900226

DIBP REFERENCE(S):  BCC2017/4147408

MEMBER:  David Barker

DATE OF DECISION:  9 May 2019

DATE CORRIGENDUM

SIGNED:  23 July 2019

PLACE OF DECISION:  Sydney

AMENDMENT:  The following corrections are made to the

decision:

1. Cover page ‘9 May 2009’ under DATE OF DECISION: heading is deleted and replaced with the following:

   “9 May 2019”

David Barker
Member

DECISION RECORD

DIVISION:  Migration & Refugee Division

REVIEW APPLICANT:  Mr Vikas Sureshbhai PATEL

VISA APPLICANT:  Ms Arti RAJPUT

CASE NUMBER:  1900226

DIBP REFERENCE(S):  BCC2017/4147408

MEMBER:  David Barker

DATE:  9 May 2009

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Prospective Marriage (Temporary) (Class TO) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 300 (Prospective Marriage) visa:

·cl.300.213 of Schedule 2 to the Regulations

·cl.300.222 of Schedule 2 to the Regulations

Statement made on 09 May 2019 at 1:51pm

CATCHWORDS
MIGRATION – Prospective Marriage (Temporary) (Class TO) visa – Subclass 300 (Prospective Marriage) – sponsorship limitation – previous wife’s Partner visa application – five-year limitation lapsed – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 360
Migration Regulations 1994 (Cth), r 1.20J; Schedule 2, cls 300.213, 300.222

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 to refuse to grant the visa applicant a Prospective Marriage (Temporary) (Class TO) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 7 November 2017. At the time the visa application was lodged, Class TO contained only one subclass: Subclass 300 (Prospective Marriage). The criteria for a Subclass 300 visa are set out in Part 300 of Schedule 2 to the Migration Regulations 1994 (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. Relevantly to this matter the primary criteria include cl.300.222.

3. The delegate refused to grant the visa on 29 October 2018 on the basis that the visa applicant did not satisfy cl.300.222 of Schedule 2 to the Regulations because the delegate found that the review applicant did not meet the sponsorship limitations in reg.1.20J(1)(c) and there were no compelling circumstances why that restriction should not be applied.

4. In reaching its decision the Tribunal was able to find in favour of the applicant on the basis of the material before it, and determined not to invite the applicant to appear at a hearing pursuant to section 360(2)(a) of the Act.

5. The review applicant was represented in relation to the review by his registered migration agent.

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

   BACKGROUND

7. The visa applicant is a citizen of India. She is 26 years old.

8. The review applicant is the sponsor of the visa applicant. He was born in India. He first arrived in Australia in February 2007 on a Student visa and was subsequently granted Australian citizenship in January 2013. The review applicant was previously married, from January 2014 to September 2016. The review applicant’s previous wife applied for a Combined Partner (Subclass 309/100) visa on 8 April 2014. The review applicant was approved as a sponsor in relation to his previous wife’s Partner visa application and she was granted a relevant permission on the basis of that approved sponsorship.

9. The delegate from Department found that as the review applicant had previously sponsored a person who successfully applied for a Partner visa, the sponsorship limitation provided for in R.1.20J applies to his sponsorship of the visa applicant in relation to her application for the Subclass 300 Prospective Marriage visa. The delegate found there were no compelling circumstances to justify the waiver of the sponsorship limitations.

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in the present case is whether the sponsorship requirements are met.

Case Number 1900226  Page 2 of 4

Is the visa applicant sponsored as required?

1. Clause 300.213 requires that the visa applicant is sponsored by the review applicant, and that the review applicant has turned 18. Both the review applicant and the visa applicant were over the age of 18 years at the time of the application. Therefore, cl.300.213 is satisfied.

2. Clause 300.222 requires that the sponsorship referred to in cl.300.213 has been approved and is still in force. Approval of sponsorship is subject to a number of limitations contained in the Regulations including the following: r.1.20J 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; r.1.20KA limits the period before which certain Parent visa holders can sponsor another person for a Partner visa; r.1.20KB limits sponsorship by persons charged with, or convicted of, certain offences (where the visa application was made on or after 27 March 2010); r.1.20KC limits sponsorship by persons convicted of a relevant offence in relation to which they have a significant criminal record (where the visa application was made on or after 18 November 2016).

3. 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 is satisfied there are compelling circumstances affecting the sponsor: r.1.20J(2).

4. For visa applications made on or after 18 November 2016, it also requires the prospective spouse (that is, the sponsor) to have consented for the Department to disclose to each sponsored 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.

5. The Tribunal finds the review applicant was approved as a sponsor in relation to his previous wife’s Partner visa application and that she was granted a relevant permission on the basis of that approved sponsorship. The Tribunal finds that as a consequence of the action of r.1.20J, the review applicant was unable to sponsor a further person, in relation to a visa such as a Prospective Marriage visa, for a five-year period from the date on which his previous wife lodged her application for a partner visa namely 8 April 2014. This five year period elapsed on 18 April 2019.

6. The Tribunal has received a submission from the review applicant’s representative which notes the relevant five-year period has now passed. As the Tribunal is required to consider the application afresh and as the five-year period has now passed, at the time of this decision the sponsorship of the visa applicant’s application for a Prospective Marriage visa is no longer restricted by reg.1.20J(1)(c).

7. There is no information before the Tribunal that any of the other criteria for the limitations on approval of sponsorship in reg.1.20J apply to the review applicant. There is no information before the Tribunal that the other restrictions for sponsorship in reg.1.20KA and reg.1.20KB apply to the review applicant.

8. The Tribunal has reviewed the online ‘Sponsorship for a partner to migrate to Australia’ form completed by the review applicant on 8 November 2017. The Tribunal finds that the review applicant has in the section of that form with the title ‘Sponsorship declarations’ entered the word ‘Yes’ to a question as to whether he agrees that the Department may inform the migrating applicant, and any non-migrating person who can lawfully to determine where the applicant’s migrating minor child may live, about the convictions or charges it becomes

   Case Number 1900226  Page 3 of 4

aware of through either via response to previous questions, other information provided, or liaison with relevant Commonwealth, state or territory agencies.

1. Therefore, on the evidence before the Tribunal the requirements of cl.300.222 are met.

2. 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 300 visa.

   DECISION

3. The Tribunal remits the application for a Prospective Marriage (Temporary) (Class TO) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 300 (Prospective Marriage) visa:

   . cl.300.213 of Schedule 2 to the Regulations

   . cl.300.222 of Schedule 2 to the Regulations

   David Barker
   Member

Case Number 1900226  Page 4 of 4