Rahman (Migration)

[2020] AATA 3380

Rahman (Migration) [2020] AATA 3380 (25 June 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Mohammed Ataur Rahman

VISA APPLICANT:  Mrs Noorjahan Begum

CASE NUMBER:  1718441

DIBP REFERENCE(S):  BCC2016/1390682

MEMBER:Stephen Conwell

DATE:25 June 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Partner (Provisional) (Class UF) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 309 (Partner (Provisional)) visa:

·cl.309.213 of Schedule 2 to the Regulations

·cl.309.222(1) of Schedule 2 to the Regulations

Statement made on 25 June 2020 at 3:34pm

CATCHWORDS

MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) - sponsorship limitations for Parent visa holders – sponsorship remains in force – five years lapsed from the grant of a permanent Contributory Parent visa – decision under review remitted        

LEGISLATION

Migration Act 1958, ss 65, 360
Migration Regulations 1994, Schedule 2, cls 309.211, 309.213, 309.222; rr 1.15, 1.20

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 on 26 June 2017 to refuse to grant the visa applicant a Partner (Provisional) (Class UF) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 6 April 2016 on the basis of her relationship with her sponsor, the review applicant. At that time, Class UF contained only one subclass: Subclass 309 (Partner (Provisional). The criteria for the grant of this visa are set out in Part 309 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.

3. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.309.211(2)(c) of Schedule 2 to the Regulations because the delegate found that the review applicant did not meet the sponsorship limitations in reg.1.20KA 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 pursuant to section 360(2)(a) of the Act, deemed it unnecessary to invite the applicant to appear at a hearing.

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

   BACKGROUND

6. The visa applicant is a citizen of Bangladesh.  She is 61 years old.

7. The review applicant is the sponsor of the visa applicant. He is 67 years old

8. The review applicant and visa applicant married in Bangladesh on 11 March 1976. On the departmental file there is a translated true copy of the Marriage Deed sealed and attested on 18 April 2016.

9. The review applicant was  granted a Contributory Parent visa on 20 February 2015.

10. In the decision record the delegate states on page 2, that “Subclause 309.211 (2)(c) outlines sponsorship requirements”.   The delegate then goes on to consider Division 1.4B, regulation 1.20KA and the prescribed limitations on approving the sponsorship relating to Partner and Prospective Marriage fees by persons granted a permanent Contributory Parent category visa.

11. The Tribunal is of the view that the delegate erred in finding that “Subclause 309.211(2)(c) outlines sponsorship requirements”.  In fact Subclause 309.211(2) requires that a visa applicant be the spouse or de facto partner of the sponsor at the time of application.

12. The decision record shows that the delegate was satisfied that the visa applicant and review applicant were in a spouse/de facto partner relationship before the permanent Contributory Parent visa was granted to the sponsor. Although the delegate claims to apply 309.211(2) it is clear from the decision record that the delegate assessed the sponsorship against subclause 309.222(1) and the prescribed limitations in reg.1.20KA and found that the sponsorship did not meet the requirements of reg.1.20KA.

13. The delegate also found that the sponsorship did not meet the requirements of a sponsorship waiver under reg.1.20KA(3).

    CONSIDERATION OF CLAIMS AND EVIDENCE

14. Notwithstanding the incorrect reference to subclause 309.211(2)(c) the Tribunal finds that the issue in the present case is whether the sponsorship requirements are met.

    Are the sponsorship requirements met?

15. Clause 309.213 requires that the visa applicant is sponsored by the review applicant, where such person has turned 18; or where they have not, by the review applicant’s parent or guardian who has turned 18 and is either an Australian citizen, permanent resident or eligible New Zealand citizen (as defined in r.1.03 of the Regulations). Both the review applicant and the visa applicant were over the age of 18 years at the time of the application. The Tribunal is satisfied that the review applicant has agreed to sponsor the visa applicant and his sponsorship is still in force. Therefore, cl.309.213 is satisfied.

16. At the time of decision, this sponsorship must have been approved and still be in force (cl. 309.222(1). As noted, the Tribunal is satisfied that the review applicant has agreed to sponsor the visa applicant and his sponsorship remains in force

17. 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 r.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 in relation to sponsors convicted of a relevant offence who have a significant criminal record where the visa application was made on or after 18 November 2016.

18. In particular regulation 1.20KA prevents a person from sponsoring their partner or fiancé(e) for a Partner or Prospective Marriage visa for five years from the date on which the sponsor was granted a permanent Contributory Parent visa.

19. The Tribunal finds the review applicant was granted a permanent Contributory Parent visa on 20 February 2015.  The Tribunal finds that as a consequence of the action of r.1.20KA, the review applicant was unable to sponsor a person, in relation to a visa such as a Partner visa, for a five-year period from that date. This five year period elapsed on 20 February 2020.

20. 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 Partner visa is no longer restricted by reg.1.20KA.

21. There is no information before the Tribunal that any of the 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.1.20KB and reg.1.20KC apply to the review applicant.

22. Therefore, on the evidence before the Tribunal the requirements of cl.309.213 and cl.309.222(1) are met.

23. 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 309 visa.

    DECISION

24. The Tribunal remits the application for a Partner (Provisional) (Class UF) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 309 (Partner (Provisional)) visa:

    ·cl.309.213 of Schedule 2 to the Regulations

    ·cl.309.222(1) of Schedule 2 to the Regulations

    Stephen Conwell
    Member

    ATTACHMENT  - Extract from Migration Regulations 1994

    1.15ASpouse

    (1)For subsection 5F (3) of the Act, this regulation sets out arrangements for the purpose of determining whether 1 or more of the conditions in paragraphs 5F (2) (a), (b), (c) and (d) of the Act exist.

    (2)If the Minister is considering an application for:

    (a)a Partner (Migrant) (Class BC) visa; or

    (b)a Partner (Provisional) (Class UF) visa; or

    (c)a Partner (Residence) (Class BS) visa; or

    (d)a Partner (Temporary) (Class UK) visa;

    the Minister must consider all of the circumstances of the relationship, including the matters set out in subregulation (3).

    (3)The matters for subregulation (2) are:

    (a)the financial aspects of the relationship, including:

    (i)       any joint ownership of real estate or other major assets; and

    (ii)      any joint liabilities; and

    (iii)     the extent of any pooling of financial resources, especially in relation to major financial commitments; and

    (iv)    whether one person in the relationship owes any legal obligation in respect of the other; and

    (v)     the basis of any sharing of day‑to‑day household expenses; and

    (b)the nature of the household, including:

    (i)       any joint responsibility for the care and support of children; and

    (ii)      the living arrangements of the persons; and

    (iii)     any sharing of the responsibility for housework; and

    (c)the social aspects of the relationship, including:

    (i)       whether the persons represent themselves to other people as being married to each other; and

    (ii)      the opinion of the persons’ friends and acquaintances about the nature of the relationship; and

    (iii)     any basis on which the persons plan and undertake joint social activities; and

    (d)the nature of the persons’ commitment to each other, including:

    (i)       the duration of the relationship; and

    (ii)      the length of time during which the persons have lived together; and

    (iii)     the degree of companionship and emotional support that the persons draw from each other; and

    (iv)    whether the persons see the relationship as a long‑term one.

    (4)If the Minister is considering an application for a visa of a class other than a class mentioned in subregulation (2), the Minister may consider any of the circumstances mentioned in subregulation (3).