Shaheem (Migration) - [2019] AATA 2550

Shaheem (Migration) [2019] AATA 2550 (12 June 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Mr Sheikh Abdul Shaheem
VISA APPLICANT:  Ms Tazmeen Nisha Khan
CASE NUMBER:  1718145
DIBP REFERENCE(S):  BCC2016/1387298
MEMBER:Russell Matheson
DATE:12 June 2019
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 meets the following criteria for a Subclass 309 (Partner (Provisional)) visa:
·cl.309.213 of Schedule 2 to the Regulations; and
·cl.309.222 of Schedule 2 to the Regulations.

Statement made on 12 June 2019 at 12:56pm

CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa - subclass 309 – whether sponsorship requirements had been met – sponsorship limitations waived –sufficient evidence of genuine and continuing relationship – financial hardship – compelling circumstances –decision under review remitted
LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994,r 1.20, Schedule 2, cls 309.213, 309.222
CASES
Babicci v MIMIA [2004] FCA 1645
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 Immigration on 26 July 2017 to refuse to grant the visa applicant a Partner (Provisional) (Class UF) Subclass 309 visa under s.65 of the Migration Act 1958 (the Act).
The visa applicant (the applicant) is a 38-year-old female national of Fiji. She applied for the visa on 6 April 2016. The delegate refused to grant the visa on the basis that the applicant did not satisfy cl.309.213 and cl.309.222 of Schedule 2 to the Migration Regulations 1994 because the delegate was not satisfied that the sponsorship requirements had been met.
The review applicant (the sponsor) appeared before the Tribunal on 4 June 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor’s father.
The sponsor was represented in relation to the review by his registered migration agent.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
BACKGROUND
The applicant lodged an application for a Partner (Provisional) (Class UF) Subclass 309 visa in Suva on 6 April 2016 to migrate to Australia as the spouse of the sponsor who is an Australian citizen.
The Department of Immigration records indicate that the sponsor previously sponsored another Fijian national for partner migration to Australia. They were married on 8 October 1997 and divorced on 10 July 2010. The sponsor then entered into a second marriage with another Fijian national on 18 July 2010 who was in Australia at that time on a temporary visa and divorced on 14 July 2013. The sponsor declared that there are no children from his two previous marriages. The sponsor then got married for a third time to another Fijian national (the applicant) on 14 January 2016, and lodged the current partner migration application on 6 April 2016. The Tribunal notes that five years has passed since the date of making the second successful visa application (second…

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 Shaheem (Migration)

Details

AGLC: Shaheem (Migration) [2019] AATA 2550
Case: [2019] AATA 2550
Decision Date: 12 June 2019

CaseChat Overview and Summary

This matter concerned an application for a Partner (Provisional) (Class UF) visa, subclass 309, made by an applicant seeking to migrate to Australia as the spouse of an Australian citizen. The central dispute revolved around whether the sponsor had met the relevant sponsorship requirements, and if not, whether these requirements could be waived due to compelling circumstances affecting the sponsor. The decision was made by Russell Matheson, a Member of the Tribunal.

The primary legal issue before the Tribunal was to determine if the sponsorship requirements under Regulation 1.20J of the Migration Regulations 1994 were met. Specifically, the Tribunal had to consider the limitations on the number of times a person could sponsor another for a partner visa in their lifetime, and the minimum time that must elapse between sponsorships. The Tribunal was also required to assess whether there were "compelling circumstances" affecting the sponsor that would justify waiving these requirements, as permitted by Regulation 1.20J(2).

The Tribunal noted that the sponsor had previously entered into two approved spouse sponsorships. Regulation 1.20J(1)(c) limits a person to a maximum of two approved spouse, fiancé, or interdependency sponsorships in their lifetime. Furthermore, if there has been one previous sponsorship, a period of five years must have passed since the date of the earlier visa application. In this case, five years had passed since the date of the second successful visa application. The Tribunal concluded that the matter should be remitted for reconsideration, with a direction that the visa applicant met specific criteria under clauses 309.213 and 309.222 of Schedule 2 to the Regulations.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The Department of Immigration records indicate that the sponsor previously sponsored another Fijian national for partner migration to Australia. They were married on 8 October 1997 and divorced on 10 July 2010. The sponsor then entered into a second marriage with another Fijian national on 18 July 2010 who was in Australia at that time on a temporary visa and divorced on 14 July 2013. The sponsor declared that there are no children from his two previous marriages. The sponsor then got married for a third time to another Fijian national (the applicant) on 14 January 2016, and lodged the current partner migration application on 6 April 2016. The Tribunal notes that five years has passed since the date of making the second successful visa application (second sponsorship).CONSIDERATION OF CLAIMS AND EVIDENCE The Tribunal has before it the Department’s file relating to the applicant; its own file; and a copy of the Department decision provided by the sponsor to the Tribunal. The evidence the sponsor and witness provided at the Tribunal hearing is recorded throughout this decision record.ISSUE The issue in the present case is whether the sponsorship requirements are met; if not whether these requirements can be waived if there are compelling circumstances affecting the sponsor as prescribed in r.1.20J(2). 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 r.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) 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 r.1.20J(2). Regulation 1.20J applies to visa applications made on or after 1 November 1996 r.1.20J(3). At most, a person may enter into two approved spouse, fiancé, or interdependency sponsorships in their lifetime: r.1.20J(1)(c). The sponsor as indicated above has previously entered into two approved spouse sponsorships, therefore the sponsor limitations apply. These requirements may be waived in compelling circumstance; r.1.20J(2) allows the Tribunal to approve sponsorship that would otherwise fail to meet r.1.20J(1) requirements if there are ‘compelling circumstances’ affecting the sponsor. As a matter of law, all cases must be assessed against the provisions of r.1.20J(2). Are the sponsorship requirements met? Clause 309.213 requires that the visa applicant is sponsored by the review applicant, where such a 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).

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 309 visa.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; and·cl.309.222 of Schedule 2 to the Regulations. Russell MathesonMember

Ratio Decidendi

Legal Principle Established

For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.BACKGROUND The applicant lodged an application for a Partner (Provisional) (Class UF) Subclass 309 visa in Suva on 6 April 2016 to migrate to Australia as the spouse of the sponsor who is an Australian citizen. The Department of Immigration records indicate that the sponsor previously sponsored another Fijian national for partner migration to Australia. They were married on 8 October 1997 and divorced on 10 July 2010. The sponsor then entered into a second marriage with another Fijian national on 18 July 2010 who was in Australia at that time on a temporary visa and divorced on 14 July 2013. The sponsor declared that there are no children from his two previous marriages. The sponsor then got married for a third time to another Fijian national (the applicant) on 14 January 2016, and lodged the current partner migration application on 6 April 2016. The Tribunal notes that five years has passed since the date of making the second successful visa application (second sponsorship).CONSIDERATION OF CLAIMS AND EVIDENCE The Tribunal has before it the Department’s file relating to the applicant; its own file; and a copy of the Department decision provided by the sponsor to the Tribunal. The evidence the sponsor and witness provided at the Tribunal hearing is recorded throughout this decision record.ISSUE The issue in the present case is whether the sponsorship requirements are met; if not whether these requirements can be waived if there are compelling circumstances affecting the sponsor as prescribed in r.1.20J(2). 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 r.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) 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 r.1.20J(2). Regulation 1.20J applies to visa applications made on or after 1 November 1996 r.1.20J(3). At most, a person may enter into two approved spouse, fiancé, or interdependency sponsorships in their lifetime: r.1.20J(1)(c). The sponsor as indicated above has previously entered into two approved spouse sponsorships, therefore the sponsor limitations apply. These requirements may be waived in compelling circumstance; r.1.20J(2) allows the Tribunal to approve sponsorship that would otherwise fail to meet r.1.20J(1) requirements if there are ‘compelling circumstances’ affecting the sponsor. As a matter of law, all cases must be assessed against the provisions of r.1.20J(2). Are the sponsorship requirements met?