Pham (Migration)

[2021] AATA 4906

Pham (Migration) [2021] AATA 4906 (21 December 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Van Minh Pham

VISA APPLICANT:  Ms Thi Bong Dang

REPRESENTATIVE:  Mr MICHAEL CAI (MARN: 1799864)

CASE NUMBER:  1905843

HOME AFFAIRS REFERENCE(S):          BCC2018/3932664

MEMBER:Brendan Darcy

DATE:21 December 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 309 visa:

·cl 309.222 of Schedule 2 to the Regulations

Statement made on 21 December 2021 at 3:03pm

CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Spouse (Provisional)) – sponsorship limitation – application made lees than 5 years after sponsor’s permanent visa granted – limitation period now passed – decision made without hearing necessary – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 360(2)(a)
Migration Regulations 1994 (Cth), r 1.20KA, Schedule 2, cl 309.222

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 Home Affairs to refuse to grant the visa applicant a Partner (Provisional) (Class UF) visa under s 65 of the Migration Act 1958 (Cth) (the Act). The visa applicant applied for the visa on 26 June 2018. The delegate refused to grant the visa on 11 January 2019.

2. Clause 309.222 requires that, at time of decision, the sponsorship referred to in clause 309.213 has been approved and is still in force. Regulations 1.20J, 1.20KA and 1.20KB limit the Minister’s discretion to approve sponsorships.

3. On 11 January 20109, the delegate made the decision on the basis that the sponsorship of this partner visa was affected by the 1.20KA limitation which prevents a sponsor (or the review applicant) from being a sponsoring partner.  In this regard, the delegate determined cl.309.222 and the criteria under r.1.20KA  for the grant of the visa under the Migration Regulations 1994 (Cth) (the Regulations) was not met.

4. Specifically, under regulation 1.20KA(3) the limitation on sponsorship does not apply if you had compelling reasons, other than reasons relating to your financial circumstances, for:

   • not applying for the Contributory Parent visa at the same time as the proposed sponsor; or

   • applying for the Contributory Parent visa at the same time as the proposed sponsor but withdrawing your application before it was granted and there were compelling reasons for this withdrawal.

5. In November 2016, the parties claimed to have recommenced their relationship and they re-married on 4 February 2018.

6. At the time of the visa being lodged on 26 June 2018, the sponsor was granted a permanent Contributory Parent category visa after 1 July 2009 and was in a spouse/de facto partner relationship with the applicant before the permanent Contributory Parent visa was granted. (The sponsor’s Contributory Parent (Subclass 143) visa had been granted on 18 November 2014.)

7. At the time of the delegate’s decision on 11 January 2019, five (5) years has not passed since the grant of the sponsor’s permanent Contributory Parent category visa. The sponsor was therefore affected by the 1.20KA limitation which prevented the sponsor from being a sponsoring partner.

8. On 12 March 2019, the review applicant (the sponsor) applied to have the delegate’s refusal decision reviewed by the Tribunal. A copy of the decision record was attached.

9. On 21 December 2021, the applicants’ representative forwarded a legal submission that seven (7) years, 1 (one) month and 4 (four) days have passed since 18 November 2014 – the date of grant of the sponsor’s Subclass 143 permanent visa, and that regulation 1.20KA no longer applies to the limit the sponsorship under the Regulations.

10. The Tribunal has considered the information before it and the applicable legislative provisions. It finds that, for the purposes of consideration of r.1.20KA, the Tribunal concurs with the representative’s observations about the passage of time and finds that a period of 5 years has now passed since that visa application was made.

11. On the evidence before the Tribunal the requirements of cl.309.222 are therefore now met.

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

13. The Tribunal observes that the delegate refused the application only on the basis of the visa applicant not meeting cl.309.222 and did not undertake any assessment of the genuineness of the relationship between the visa applicant and sponsor.

14. On the basis of the satisfaction of the objective criteria in cl.309.222 and given the circumstances that a primary assessment of the genuineness of the relationship has yet to be made by the Department, the Tribunal considers the most appropriate course of action is to remit this application for a partner visa to the Minister to consider the remaining criteria for a Subclass 309 visa.

    DECISION

15. The Tribunal remits the application for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 309 visa:

    ·cl 309.222 of Schedule 2 to the Regulations

    Brendan Darcy
    Member