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

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 (the Act).

2. 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.

3. 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.

4. 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.

5. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in the present case is whether the sponsorship requirements are met.

   Is the applicant sponsored?

7. 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.

8. 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.

9. 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. 

10. 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.

11. 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)).

12. The Minister may approve the sponsorship despite this provision if satisfied there are compelling circumstances affecting the sponsor (r.1.20J(2)).

13. 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. 

14. As a result, the sponsorship must not be approved unless there are compelling circumstances affecting the sponsor. 

15. 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.

16. Departmental policy contained in the procedures advice manual states in regard to  compelling circumstances:

    7.2  Compelling circumstances affecting the interests of the sponsor

    Under 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.  

17. The applicant and the sponsor first met on 31 December 2012. In the 40SP form completed by the sponsor he said they committed to a shared life together to the exclusion of all others on 26 January 2014. They married on 29 January 2016. The applicant and the sponsor have been in a relationship for nearly seven years.

18. The information provided to the Tribunal included various medical reports in relation to the sponsor’s health and the IVF treatment undertaken by the applicant and the sponsor. A Birth Certificate evidencing the birth of a male child on 20 November 2018 was provided. The document identifies the applicant as the mother and the sponsor as the father of the child.

19. The medical reports provided refer to the sponsor having suffered a stroke in 2016 and developing post-stroke anxiety and panic attacks. The applicant has been the sponsor’s principal carer and in a report dated 21 March 2018 Dr Ben Walawski said without her care the sponsor would have struggled significantly to stay at home.

20. A letter dated 28 May 2019 from Registered Psychologist, Dianne Rickman, from Women’s Health & Family Services states that the sponsor panics that he cannot bring up their son on his own and that he may die. Ms Rickman said the applicant and the sponsor had recently experienced a traumatic event involving a neighbour self-harming by cutting her throat and said they were both suffering symptoms of post-traumatic stress. She said the uncertainty of the applicant’s immigration status is causing an added burden to the couple.

21. The sponsor was born in India. He has been an Australian citizen since 21 July 1981. In a letter to the Department the sponsor said his previous two sponsored partners left him soon after they arrived in Australia. He said it was very upsetting for him and in his opinion they had used him to come and live in Australia. In a letter dated 4 November 2019 the sponsor said the applicant is a devoted wife and after his stroke in 2016 she was the only person who always stayed by his side and came to the hospital every day. He said they are currently in the process of having a second baby through IVF treatment.

22. Having regard to all of the circumstances the Tribunal is satisfied that there are compelling circumstances affecting the sponsor, and the sponsorship can be approved despite the operation of r.1.20J(1). In making this determination the Tribunal has placed weight on the parties’ long-standing relationship and that they have a dependent one year old child; the care the applicant provides to the sponsor following his stroke; the difficulties the sponsor would face if the applicant was required to leave Australia; and the sponsor’s ties to Australia noting that he has been an Australian citizen for more than 38 years

23. The Tribunal is satisfied that there is no information before it that suggests that the sponsorship limitations of r.1.20K, r.1.20KA or r.1.20KB prevent approval.

24. As a result, the sponsorship is approved, and cl.820.221(4) is met.

25. On the evidence before the Tribunal the requirements of cl.820.211(2)(c) and cl.820.221(4) are met.

26. 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

27. 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 Kannis
    Member