Santiago (Migration)

[2021] AATA 4895

Santiago (Migration) [2021] AATA 4895 (21 December 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Clarita Santiago

REPRESENTATIVE:  Mrs Violeta Bada (MARN: 9900156)

CASE NUMBER:  1900318

HOME AFFAIRS REFERENCE(S):          BCC2017/4069847

MEMBER:SM Justin Owen

DATE:21 December 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 criteria for a Subclass 820 (Partner) visa:

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

Statement made on 21 December 2021 at 2:33pm

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – sponsorship limitation – application made less than 5 years after previous sponsorship – 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 1.20J(1)(b), Schedule 2, cl 820.221(4)

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 applicant a Partner (Temporary) (Class UK) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 2 November 2017 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.

3. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl. 820.221(4) because at the time the applicant lodged her Partner visa application on 2 November 2017, their sponsor had sponsored/nominated a person as a spouse, de facto partner, fiancé or interdependent partner less than five years prior to the lodgement of the applicant’s application: reg. 1.20J(1)(b). The delegate had considered all of the information the applicant had submitted, and was not satisfied that the applicant and sponsor had established compelling circumstances to warrant the waiver of the requirement: reg. 1.20J(2).   

4. The applicant was represented in relation to the review.

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 case is whether the applicant is at the time of decision sponsored for the grant of a Partner visa as per reg. 1.20J.

8. Clause 820.211 requires that 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).

9. 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 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 reg. 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 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.

10. On the material before it, the Tribunal accepts that the applicant was sponsored at the time of application by the sponsor who is an Australian citizen and over the age of 18 years. 

11. 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.  Under reg. 1.20J, a sponsor is limited to a total, in a lifetime, of two approved sponsorships or nominations that lead to the 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 passed since the date of the earlier visa application.  These requirements apply unless the Minister, or the Tribunal under review, is satisfied there are compelling circumstances affecting the sponsor: reg. 1.20J(2).

12. On the evidence before the Tribunal, the sponsor, Mr Roger Glen Pike, undertook a Partner visa sponsorship previously on 13 June 2016.  Given the five-year limitation period (reg. 1.20J(1)(b)) the sponsor, unless he could establish compelling reasons, was unable to have a second sponsorship approved until at least five years after the first visa application was made.

13. At the time of the delegate’s decision on 20 December 2018, a period of five years had not yet elapsed since the sponsor’s previous sponsorship of a Partner visa application, and the delegate was not satisfied compelling circumstances had been established to warrant the waiver provision at reg. 1.20J(2).  Since the delegate’s refusal, the sponsor and applicant have now surpassed the five-year limitation period.  The Tribunal notes the calculation of the five-year period between the previous sponsorship and the current sponsorship is calculated from the date on which the previous visa application was made, to the Tribunal’s date of decision on the current sponsorship.

14. In the matter under review, the time subsequently commences on 13 June 2016 which was the date of the lodgement of the previous sponsorship by the sponsor.  The five-year limitation period therefore ended on 13 June 2021.     

15. At the time of the Tribunal’s decision, the sponsor (and applicant) therefore now satisfy this particular sponsorship requirement for the grant of a Partner visa.  At the time of decision, five years and six months have elapsed since the lodgement of the sponsor, Mr Roger Glen Pike’s, previous application to sponsor a partner visa.  Subsequently, the applicant now meets reg. 1.20J(1).   

16. On the evidence before the Tribunal, the requirements of cl. 820.221(4) are therefore now met.

17. 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

18. 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:

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

    Justin Owen
    Senior Member