SEOL (Migration) - [2023] AATA 4410

SEOL (Migration) [2023] AATA 4410 (21 December 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ms YOUNJOO SEOL
REPRESENTATIVE:  Mr YOUNGKI HONG (MARN: 0701746)
CASE NUMBER:  1836507
HOME AFFAIRS REFERENCE(S):          BCC2017/1600870
MEMBER:Deputy President Justin Owen
DATE:21 December 2023
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 820.211(2)(c) of Schedule 2 to the Regulations; and
·cl 820.221(4) of Schedule 2 to the Regulations.

Statement made on 21 December 2023 at 10:12am

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – sponsorship limitation – two previous sponsorships – compelling circumstances to waive requirements – previous failed relationships not themselves compelling circumstances – genuine and continuing relationship – closure of business and sponsor’s relocation to applicant’s home country if application unsuccessful a genuine and significant hardship – sponsor’s assistance to elderly mother with health concerns – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5F, 65
Migration Regulations 1994 (Cth), rr 1.03, 1.20J, Schedule 2, cl 820.211(2)(c), 820.221(4)
CASE
Babicci v MIMIA [2004] FCA 1645; [2005] FCAFC 77
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 on 27 November 2018 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 4 May 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.
The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl 820.221(4) because the delegate found the applicant’s application was subject to a sponsorship limitation under reg 1.20J(1) given the sponsor had already sponsored two previous partner visa applications. The delegate was not satisfied that there were ‘compelling circumstances’ affecting the Australian citizen sponsor (reg 1.20J(2)) to waive the sponsorship requirements including the limitation on the approval of a further sponsorship.
The applicant appeared before the Tribunal on 12 December 2023 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor, Mr Adrian Li and the applicant’s mother-in-law Ms Jessica Li. The Tribunal hearing was conducted with the assistance of an interpreter in the Korean and English languages.
The applicant was represented in relation to the review.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS…

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.

Continue reading SEOL (Migration)

Details

AGLC: SEOL (Migration) [2023] AATA 4410
Case: [2023] AATA 4410
Decision Date: 21 December 2023

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered an application for a Partner (Temporary) (Class UK) visa, Subclass 820. The applicant sought a waiver of sponsorship limitations under regulation 1.20J of the Migration Regulations 1994, as the sponsor had previously sponsored two other individuals. The Tribunal was required to determine whether compelling circumstances existed to justify waiving these limitations.

The Tribunal's reasoning focused on the interpretation of "compelling circumstances" as an exception to the sponsorship limitations. It was held that previous failed relationships, in themselves, do not constitute compelling circumstances. However, the Tribunal found that the applicant's genuine and continuing relationship with the sponsor, coupled with the significant hardship that would arise if the application were unsuccessful (including the closure of the sponsor's business and relocation to the applicant's home country), and the sponsor's need to assist an elderly mother with health concerns, did present compelling circumstances.

Consequently, the Tribunal remitted the application for reconsideration by the Minister. The Tribunal directed that the applicant be taken to meet the criteria under cl 820.211(2)(c) and cl 820.221(4) of Schedule 2 to the Regulations, allowing for further assessment of the remaining visa requirements.

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 there are compelling circumstances for the waiver of the sponsorship limitation under reg 1.20J.Is the applicant sponsored? Clause 820.211 requires at the time of application, the applicant meets one of several alternative sub criteria. These include cl 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. Regulation 1.20KA 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 by 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. Regulation 1.20J of the Regulations 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 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 five years must have passed since the date of the earlier visa application. These requirements apply unless the Minister, or the Tribunal on review, is satisfied there are compelling circumstances affecting the sponsor: reg 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 criteria for a Subclass 820 (Partner) visa:·cl 820.211(2)(c) of Schedule 2 to the Regulations; and·cl 820.221(4) of Schedule 2 to the Regulations.Justin OwenDeputy President

Ratio Decidendi

Legal Principle Established

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