Promthong (Migration)

[2024] AATA 2472

Promthong (Migration) [2024] AATA 2472 (2 April 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Aneyacha Promthong

REPRESENTATIVE:  Mr Aphichart Saengthun (MARN: 0106983)

CASE NUMBER:  2119391

HOME AFFAIRS REFERENCE(S):          BCC2021/1165637

MEMBER:K. Chapman

DATE:2 April 2024

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 cl 820.221(4) of Schedule 2 to the Regulations.

Statement made on 02 April 2024 at 5:24pm  

CATCHWORDS
MIGRATION –Partner (Temporary) (Class UK) visa – Subclass 820 – sponsorship limitations – the prior sponsorship was approved within 5 years of the time of the primary decision – the 5 year period stipulated in reg 1.20J(1)(b) has elapsed – satisfied that the visa sponsorship is no longer limited – decision under review remitted

LEGISLATION
Migration Act 1958, ss 65, 359, 360
Migration Regulations 1994, 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, on 2 December 2021, to refuse to grant the applicant a Partner (Temporary) (Class UK) visa, pursuant to s 65 of the Migration Act 1958 (Cth) (‘the Act’).

2. The applicant applied for the visa on 31 May 2021, on the basis of her relationship with her visa 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 applicant did not satisfy cl 820.221(4) because reg 1.20J applied to preclude the sponsorship and there were no compelling reasons to justify waiver of this requirement. On 17 December 2021, the applicant applied to the Tribunal for review of the visa refusal decision. She provided a copy of the primary decision with her application for review.

4. On 8 February 2024, the Tribunal wrote to the applicant, pursuant to s 359(2) of the Act, inviting her to provide information concerning the history of her relationship with, and Partner visa sponsorships of, her visa sponsor. In response, the Tribunal received material including, but not limited to, statements, photographs, identity documents, utility bills and financial records. All material received by the Tribunal has been duly considered.

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

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present review is whether reg 1.20J applies to limit sponsorship and, if so, whether this requirement can be waived.

   Does Regulation 1.20J apply to limit the sponsorship?

8. The approval of Partner visa sponsorship is subject to limitations contained in reg 1.20J of the Regulations. This provision sets a limit on the number of people that a person can sponsor in a lifetime and a minimum time that must elapse between each sponsorship. Pursuant to reg 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 elapsed since the date of the earlier visa application. These requirements apply unless the Minister, or the Tribunal upon review, is satisfied there are compelling circumstances affecting the visa sponsor such as to exercise a waiver: reg 1.20J(2).

9. At the time of decision, the applicant must continue to be sponsored by the visa sponsor, and the sponsorship must have been approved by the Minister and be still in force. Certain exceptions apply to this general requirement that are not presently relevant.

10. According to the delegate’s visa refusal decision, the visa sponsor had a prior relevant sponsorship approved on 8 January 2017. Accordingly, the delegate determined that the sponsorship of the applicant was limited by the operation of reg 1.20J(1)(b), as the prior sponsorship was approved within 5 years of the time of the primary decision. Further, the delegate determined there were no compelling circumstances affecting the visa sponsor, such as to waive the requirement pursuant to reg 1.20J(2).

11. Given the effluxion of time during the review process, at the time of this decision, the 5 year period stipulated in reg 1.20J(1)(b) has elapsed.

12. Having regard to the documentary evidence before it, the Tribunal is satisfied that the visa sponsorship is no longer limited by reg 1.20J. Accordingly, the Tribunal finds that the applicant satisfies reg 1.20J for the purposes of cl 820.221(4).

13. Given the finding 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

14. 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.

    K. Chapman
    Member