Pearl (Migration)

[2021] AATA 2932

Pearl (Migration) [2021] AATA 2932 (10 June 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Lindsay Marie Pearl

CASE NUMBER:  1820107

HOME AFFAIRS REFERENCE(S): BCC2017/4839572 BCC2018/4105365

MEMBER:Meredith Jackson

DATE:10 June 2021

PLACE OF DECISION:  Brisbane

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:

·Regulation 1.20J for the purposes of 820.221(4) of Schedule 2 of the Regulations.

Statement made on 10 June 2021 at 4:15pm

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – sponsorship limitation – sponsor previously sponsored another person – more than five years have passed – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65

Migration Regulations 1994 (Cth), r 1.20J; Schedule 2, cl 820.221

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 18 December 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 the sponsorship limitation in Regulation 1.20J and accordingly, the sponsorship was not approved. The delegate was not satisfied circumstances affecting the sponsor were sufficiently compelling to justify a waiver under the provisions of r 1.20J(2). The delegate found that as a result, the applicant did not satisfy subclause 820.211(2) and cl 820.211 of the Regulations.

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

CONSIDERATION OF CLAIMS AND EVIDENCE

5.    The issue in the present  is whether the applicant is sponsored at the time of this decision.

Is the applicant sponsored?

6.    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).

7.    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.

8.    The delegate’s decision provided by the applicant to the Tribunal notes that the sponsor’s Sponsorship form 40SP shows that the sponsor previously sponsored another person for a Partner (Temporary) (Class UK) visa which was applied for on 5 February 2014 and was subsequently approved. At the time of this decision, more than five years have passed since the application and therefore, Regulation 1.20J does not apply in this case.

9.    There is no evidence before the Tribunal that there are any other limitations on sponsorship.

1. 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

1. 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:

·Regulation 1.20J for the purposes of cl 820.221(4) of Schedule 2 to the Regulations

Meredith Jackson
Member