Ram (Migration) - [2021] AATA 3582

Ram (Migration) [2021] AATA 3582 (1 September 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mrs Aswin Lata Ram
CASE NUMBER:  1827719
HOME AFFAIRS REFERENCE(S):          BCC2015/348788
MEMBER:Antoinette Younes
DATE:1 September 2021
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the application for a Partner (Temporary) (Class UK) visa, with the direction that the applicant meets the following criterion for a Subclass 820 (Partner) visa:
·Regulation 1.20J for the purpose of cl 820.221(4) of Schedule 2 to the Regulations.

Statement made on 1 September 2021 at 1:38 PM

CATCHWORDS
MIGRATION –Partner (Temporary) (Class UK) visa – Subclass 820 – limitations on approval of sponsorships – sponsor was the sponsor of two successful Partner visa applications – depression and PTSD symptoms – compelling circumstances affecting the sponsor – long-standing partner relationship– limitations of reg 1.20J be waived – compelling reasons exist –decision under review remitted
LEGISLATION
Migration Act 1958, ss 5F, 65
Migration Regulations 1994, r 1.20, Schedule 2, cls 820.211, 820.221
CASES
Babicci v MIMIA (2005) 141 FCR 285
Nagaki v MIBP [2016] FCCA 1070
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

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).
The applicant applied for the visa on 2 February 2015 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.
The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl 820.221(4) because the requirements of reg 1.20J of the Regulations were not met. Regulation 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.
The applicant appeared before the Tribunal on 30 August 2021 to give evidence and present arguments. The Tribunal also received oral evidence from Mr A Singh, the applicant’s sponsoring partner.
The applicant was represented in relation to the review by her registered migration agent.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the applicant meets the requirements of reg 1.20J for the purpose of cl 820.221(4).
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Ram (Migration) [2021] AATA 3582
Case: [2021] AATA 3582
Decision Date: 1 September 2021

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered an application for a Partner (Temporary) (Class UK) visa, Subclass 820, made by the applicant. The dispute centred on whether the applicant met the requirements of regulation 1.20J of the Migration Regulations 1994, which imposes limitations on the approval of sponsorships. The applicant sought a waiver of these limitations based on compelling circumstances affecting the sponsor.

The primary legal issue before the Tribunal was whether compelling circumstances existed that justified waiving the limitations imposed by regulation 1.20J. This regulation restricts the number of times an individual can sponsor another person for a partner visa and sets minimum time periods between sponsorships. The Tribunal noted that the sponsor in this case had previously sponsored two successful partner visa applications, triggering the application of regulation 1.20J.

The Tribunal reasoned that regulation 1.20J allows for sponsorship approval despite previous sponsorships if the Minister is satisfied that compelling circumstances affecting the sponsor exist. The Tribunal found that the applicant had presented compelling circumstances, including a long-standing partner relationship and the sponsor's experience of depression and PTSD symptoms. These factors were considered sufficient to warrant a reconsideration of the sponsorship approval. Consequently, the Tribunal remitted the application for reconsideration by the Minister, directing that the applicant met the criterion under regulation 1.20J for the purpose of clause 820.221(4).

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in the present case is whether the applicant meets the requirements of reg 1.20J for the purpose of cl 820.221(4). 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). At the time of decision, the applicant must continue to be sponsored by the sponsor, and the sponsorship must have been approved by the Minister and be still in force. Exceptions apply in certain circumstances where the sponsor has died, or family violence has occurred, or a child is involved. For visa applications made on or after 18 November 2016, the sponsor must also have consented for the Department to disclose to each 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: cl 820.221. 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 of the Regulations which sets a limit on the period before which certain visa holders can sponsor another person for a Partner visa. There are further limits imposed by reg 1.20KB of the Regulations 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 of the Regulations for sponsors convicted of a relevant offence, who have a significant criminal record in relation to the relevant offence, where the visa application was made on or after 18 November 2016. In the course of the hearing, the Tribunal discussed with the applicant information contained in the delegate’s decision record, a copy of which the applicant provided to the Tribunal. The information indicates that the applicant’s sponsor was the sponsor of two successful Partner visa applications. Therefore, the limitations of reg 1.20J apply. The applicant did not dispute this information but is seeking a waiver based on compelling grounds. Regulation 1.20J is concerned with serial sponsorship and abuse of the partner migration provisions, but it allows sponsorship approval in circumstances where a sponsor has successfully sponsored more than one partner, only 'if the Minister is satisfied that there are compelling circumstances affecting the sponsor'.[1] In this provision the compelling circumstances must specifically affect the sponsor. [1] Regulation 1.20J(2).

Decision

Reasons for decision

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 The Tribunal remits the application for a Partner (Temporary) (Class UK) visa, with the direction that the applicant meets the following criterion for a Subclass 820 (Partner) visa:·Regulation 1.20J for the purpose of cl 820.221(4) of Schedule 2 to the Regulations.Antoinette YounesSenior Member

Ratio Decidendi

Legal Principle Established

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