Trinh (Migration) - [2019] AATA 2162

Trinh (Migration) [2019] AATA 2162 (20 March 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mrs Thi Huyen Trinh
CASE NUMBER:  1821966
HOME AFFAIRS REFERENCE(S):           BCC2016/1884297
MEMBER:Stavros Georgiadis
DATE:20 March 2019
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.

Statement made on 20 March 2019 at 5:45pm

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – sponsorship limitation – two previously approved sponsorships – breakdown of relationship – sponsorship withdrawal – compelling circumstances – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.20J; Schedule 2, cl 820.221
CASES
Babicci v MIMIA [2004] FCA 1645
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 30 May 2016 on the basis of her relationship with her Australian 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 (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) as the requirements of Regulation 1.20J precluded the approval of the sponsorship.
The applicant appeared before the Tribunal on 20 March 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the applicant and sponsor were and are in a spouse relationship and whether there are compelling reasons affecting the sponsor such that the sponsorship limitation in r.1.20J does not apply.
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, 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 r.1.03 of the Regulations).
At the time of decision, cl.820.221(4) requires that 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…

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 Trinh (Migration)

Details

AGLC: Trinh (Migration) [2019] AATA 2162
Case: [2019] AATA 2162
Decision Date: 20 March 2019

CaseChat Overview and Summary

This matter concerned an application for a Partner (Temporary) (Class UK) visa, subclass 820, brought by the applicant, Ms Trinh, and sponsored by Mr. Nguyen. The primary dispute revolved around whether the sponsorship limitation under regulation 1.20J of the Migration Regulations 1994 applied to Mr. Nguyen, and if so, whether there were compelling circumstances to waive this limitation. The decision was made by Stavros Georgiadis, a Member of the Tribunal.

The legal issues before the Tribunal were twofold: first, whether the applicant and sponsor were in a genuine spouse relationship at the time of application and at the time of the decision; and second, whether there were compelling reasons affecting the sponsor that would exempt the sponsorship from the limitation imposed by regulation 1.20J. This regulation restricts a sponsor to a maximum of two approved sponsorships or nominations that lead to the grant of a partner visa, with a minimum five-year period required between sponsorships unless compelling circumstances exist.

The Tribunal found that the sponsor, Mr. Nguyen, had previously sponsored two individuals, Ms. Zhang and Ms. Nguyen, for partner visas, both of which resulted in the grant of permanent residency. The first sponsorship commenced in February 2002, and the second in August 2010. As the current application was made after these two previous sponsorships, regulation 1.20J applied, imposing a limitation on Mr. Nguyen's ability to sponsor. The applicant acknowledged these prior sponsorships. The Tribunal concluded that the applicant had not satisfied the criteria under clause 820.221 of the Regulations, which includes the requirement for an unhindered sponsorship.

Consequently, the Tribunal affirmed the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.

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 decision under review should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in the present case is whether the applicant and sponsor were and are in a spouse relationship and whether there are compelling reasons affecting the sponsor such that the sponsorship limitation in r.1.20J does not apply.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, 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 r.1.03 of the Regulations). At the time of decision, cl.820.221(4) requires that 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. Relevantly here, 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, and in r.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 r.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 r.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. 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) 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 on review, is satisfied there are compelling circumstances affecting the sponsor: r.1.20J(2). Departmental records show that the present case is affected by the sponsorship limitation in r.1.20J. As acknowledged by the applicant at the hearing, the sponsor has had two previously approved sponsorships or nominations that led to a grant of partner visas. This was noted by the delegate, and confirmed in the applicant’s oral evidence at hearing. The first sponsorship was for Yi Zhang which commenced on 18 February 2002 and resulted in the grant of a permanent visa. There was one child of that relationship now approximately 14 years of age. The second sponsorship was for Phuong Ngoc Thi Nguyen which commenced on 2 August 2010 and which also resulted in the grant of a permanent visa. There were three children of that relationship aged approximately 5, 7 and 9 years.

Decision

Reasons for decision

For the reasons above, the applicant does not satisfy the criteria in cl.820.221 for the grant of the visa.DECISION The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.Stavros GeorgiadisMember

Ratio Decidendi

Legal Principle Established

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