Soraya (Migration) - [2019] AATA 6462

Soraya (Migration) [2019] AATA 6462 (16 November 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mrs Intan Soraya
CASE NUMBER:  1808109
HOME AFFAIRS REFERENCE(S): BCC2016/866842 BCC2018/1214726
MEMBER:Christine Kannis
DATE:16 November 2019
PLACE OF DECISION:  Perth
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 16 November 2019 at 9:58am

CATCHWORDS
MIGRATION – refusal – Partner (Temporary) (Class UK) visa – Subclass 820 – the sponsorship requirements were not met – has a child together – compelling circumstances affecting the sponsor – long-standing relationship – decision under review remitted
LEGISLATION
Migration Act 1958, ss 65, 360
Migration Regulations 1994, r 1.20, Schedule 2, cls 820.211, 820.221
CASES
Babicci v MIMIA [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 to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s.65 of the Migration Act 1958 (the Act).
The applicant applied for the visa on 1 March 2016 on the basis of her relationship with her sponsor, Mr Denzil Oswald Stephens. 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 (the Regulations). The primary criteria must be satisfied by the applicant.
The delegate refused to grant the visa on the basis that the applicant did not satisfy cl.820.211(2) and cl.820.221(4) because the sponsorship requirements were not met.
There was significantly more information available to the Tribunal than was available to the delegate. On the basis of this information 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.
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 sponsorship requirements are met.
Is the applicant sponsored?
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 sponsored by her sponsor.
In the present case, the applicant was sponsored by the sponsor at the time of application, evidenced by the sponsorship Form 40SP provided with the application. The Tribunal is satisfied that the sponsor is over the age of 18 and is an Australian citizen. Therefore the time of application sponsorship requirement, cl.820.211(2)(c), is met.
At the time of the decision, cl.820.221(4) requires that the sponsorship mentioned in cl.820.211(2)(c) has been approved by the Minister and is still in force.

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 Soraya (Migration)

Details

AGLC: Soraya (Migration) [2019] AATA 6462
Case: [2019] AATA 6462
Decision Date: 16 November 2019

CaseChat Overview and Summary

This matter concerned an application for a Partner (Temporary) (Class UK) visa, Subclass 820, made by the applicant, Soraya. The primary dispute before the Tribunal was whether the sponsorship requirements for the visa had been met. The Tribunal, constituted by Christine Kannis, was tasked with determining if the applicant's sponsor satisfied the relevant legislative provisions.

The legal issues before the Tribunal were twofold. Firstly, whether the applicant was sponsored by a sponsor who met the criteria under clause 820.211(2)(c) of Schedule 2 to the Regulations at the time of application. Secondly, and more critically, whether the sponsorship, as required by clause 820.221(4), could be approved by the Minister and remain in force, given that the sponsor had previously sponsored two other partners who were granted permanent visas. This second issue hinged on whether there were "compelling circumstances" affecting the sponsor that would permit a waiver of the sponsorship limitations imposed by regulation 1.20J of the Regulations.

The Tribunal reasoned that the initial sponsorship requirement under clause 820.211(2)(c) was met, as evidenced by the Form 40SP and the sponsor's Australian citizenship. However, the Tribunal found that regulation 1.20J, which limits a person to sponsoring no more than two partners for visas allowing indefinite stay, was engaged because the sponsor had previously sponsored two individuals who received permanent visas. The Tribunal considered the meaning of "compelling circumstances" as circumstances that evoke interest or attention in a powerfully irresistible way, or are so powerful as to lead to a positive finding that the provision should be waived. Citing departmental policy, the Tribunal noted that examples of compelling circumstances include having a dependent child with the applicant, the death of a previous partner, or a long-standing relationship. While the text does not explicitly state the specific circumstances of the current relationship, the Tribunal's decision to remit the matter suggests that it considered the existing relationship and potentially other factors in its assessment of compelling circumstances.

Consequently, the Tribunal remitted the application for reconsideration by the Minister, with a direction that the applicant met the sponsorship criteria under clauses 820.211(2)(c) and 820.221(4) of Schedule 2 to the Regulations. This indicated that the Tribunal found sufficient grounds to allow for further consideration of the sponsorship, likely based on the presence of compelling circumstances.

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 sponsorship requirements are met. Is the applicant sponsored? 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 sponsored by her sponsor. In the present case, the applicant was sponsored by the sponsor at the time of application, evidenced by the sponsorship Form 40SP provided with the application. The Tribunal is satisfied that the sponsor is over the age of 18 and is an Australian citizen. Therefore the time of application sponsorship requirement, cl.820.211(2)(c), is met. At the time of the decision, cl.820.221(4) requires that the sponsorship mentioned in cl.820.211(2)(c) has been approved by the Minister and is still in force. Approval of sponsorship is subject to limitations contained in r.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. As it applies in this case, r.1.20J states the Minister must not approve the sponsorship of the applicant unless satisfied not more than one other person has been granted a ‘relevant permission’ as the spouse or defacto partner or prospective spouse of the sponsor. This has the effect that a person cannot sponsor more than two people. In this case, a relevant permission means a visa that allows the sponsored person to remain in Australia indefinitely (r.1.20J(1A)). The Minister may approve the sponsorship despite this provision if satisfied there are compelling circumstances affecting the sponsor (r.1.20J(2)). The sponsor has sponsored two previous partners which resulted in the grant of a permanent visa; Ms Dahlia Ramos in 2006, and Ms Ni Nyoman Ari Lestari in 2011. As a result, the sponsorship must not be approved unless there are compelling circumstances affecting the sponsor. The expression ‘compelling circumstances’ is not defined in the legislation. The Tribunal must consider whether the circumstances are such that they evoke interest or attention in a powerfully irresistible way: Babicci v MIMIA [2004] FCA 1645 or are ‘so powerful that they lead the [Tribunal] to make a positive finding that the [provision] should be waived’: Babicci v MIMIA [2005] FCAFC 77. Departmental policy contained in the procedures advice manual states in regard to compelling circumstances:7.2 Compelling circumstances affecting the interests of the sponsorUnder policy, compelling circumstances affecting the interests of the sponsor include instances where:·the applicant and their sponsor have a dependent child who is dependent on each of them or·the death of the previous partner or·the previous spouse abandoning the sponsor and there are children dependent on the sponsor requiring care and support or·the new relationship is longstanding.These examples are not exhaustive. The purpose of the sponsorship limitation is to prevent abuse of the partner/fiancé migration provisions and this should be kept in mind when deciding whether to exercise the waiver.Every aspect of the sponsor's circumstances is relevant to the existence of compelling circumstances. Although no definitive list can be given, some general aspects that may be particularly important are:·the nature of the hardship/detriment that would be suffered (by the sponsor) if the sponsorship were not approved.·the extent and importance of the ties the sponsor has to Australia, and the consequent hardship/detriment that would be suffered if the sponsorship were not approved and the sponsor were to feel compelled to leave Australia to maintain their relationship with the applicant.

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 Christine KannisMember

Ratio Decidendi

Legal Principle Established

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