Rayilla (Migration)

[2017] AATA 2522

Rayilla (Migration) [2017] AATA 2522 (25 July 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Sreedhar Rayilla

VISA APPLICANT:  Ms Pavithra Vardharajula

CASE NUMBER:  1613270

DIBP REFERENCE(S):  BCC2015/1100551

MEMBER:Kate Timbs

DATE:25 July 2017

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Partner (Provisional) (Class UF) visa for reconsideration, with the direction that the visa applicant satisfies clause 309.222(1).

Statement made on 25 July 2017 at 2:56pm

CATCHWORDS
Migration – Partner (Provisional) (Class UF) visa – Subclass 309 – Sponsor Australian citizen – Limits on sponsorship do not apply

LEGISLATION
Migration Act 1958 s 65
Migration Regulations 1994 rr 1.20J, 1.20KA, 1.20KB Schedule 2 cls 309.213, 309.222, 309.222(1)

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 to refuse to grant Ms Vardharajula a Partner (Provisional) (Class UF) visa under section 65 of the Migration Act 1958 (the Act).

2. Ms Vardharajula applied for the visa on 13 April 2015 based on her relationship with her sponsor, Mr Rayilla.

3. The delegate refused to grant the visa on 26 July 2016. On 22 August 2016, Mr Rayilla applied for review of that decision. The Tribunal made a decision on the application without hearing from Mr Rayilla.

   RELEVANT LAW

4. To be granted the visa, Ms Vardharajula must meet the criteria in Part 309 of Schedule 2 to the Migration Regulations 1999. Clause 309.213 requires her to have a sponsor who meets particular criteria when she applied for the visa and clause 309.222(1) requires the sponsorship be approved by the Minister when a decision is made on the visa application.

5. Regulations 1.20J, 1.20KA and 1.20KB prohibit the Minister from approving sponsorship in particular circumstances. Relevantly, regulation 1.20J prohibits the Minister’s from approving sponsorship unless satisfied that:

   ·no more than one other person has been granted a visa on the basis of being the spouse, de facto partner or prospective spouse of the sponsor or because a relationship of that kind ended after the person suffered family violence committed by the sponsor; and

   ·if one other person was granted a visa on the same basis, five years has passed since the person applied for the visa; and

   ·if the sponsor was granted a visa as the spouse, de facto partner or prospective partner of another person, five years have passed since the sponsor applied for that visa.

6. The delegate found Ms Vardharajula did not satisfy clause 309.222(1) because regulation 1.20J prohibits the Minister from approving Mr Rayilla’s sponsorship. To deal with his application for review, the Tribunal considered whether that was the case at the time of this decision.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The Department has granted two visas to one other person as the spouse of Mr Rayilla with him as her sponsor. The Department received the second application on 23 July 2012. Five years had not passed since that date when the delegate made the decision under review. However, five years has passed at the date of this decision and he now satisfies the criterion in the second dot point above.

8. Mr Rayilla has been an Australian citizen for more than five years and the Tribunal accepts the delegate’s finding that it has granted a visa to no more than one person based on a relationship with him. It follows he satisfies the other criteria for approval of sponsorship in regulation 1.20J.

9. For completeness, the Tribunal finds Mr Rayilla has not held a “specified class” of visa for the purposes of regulation 1.20KA and there is no evidence he was ever charged with a “registrable offence” for the purposes of regulation 1.20KB. In that case, those provisions do not prevent the Minister from approving sponsorship.

10. As none of the limits on sponsorship apply, the Tribunal (in place of the Minister) approves Mr Rayilla’s sponsorship of Ms Vardharajula. She therefore satisfies clause 309.222. In that case, the Tribunal will set aside the decision under review and send the matter back to the Department to consider whether he otherwise meets the criteria for the visa.

    DECISION

    The Tribunal remits the application for a Partner (Provisional) (Class UF) visa for reconsideration, with the direction that the visa applicant satisfies clause 309.222(1).

    Kate Timbs
    Member