Vispo (Migration)

[2023] AATA 694

Vispo (Migration) [2023] AATA 694 (8 March 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Alvin Vispo

REPRESENTATIVE:  Mr Glenn Wellburn (MARN: 0850908)

CASE NUMBER:  2111164

HOME AFFAIRS REFERENCE(S):          BCC2020/1207205

MEMBER:Kira Raif

DATE:8 March 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(1)(a) of Schedule 2 to the Regulations

Statement made on 8 March 2023 at 14:35pm

CATCHWORDS
MIGRATION –Partner (Temporary) (Class UK) visa – Subclass 820 – sponsor’s permanent visa was cancelled – Tribunal (differently constituted) set aside the cancellation of the sponsor’s visa – at the time of the decision, the sponsor is a permanent resident of Australia – decision under review remitted  

LEGISLATION
Migration Act 1958, ss, 5CB, 65, 359, 360
Migration Regulations 1994, r 1.03, Schedule 2, cls 820.211, 820.221

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 (Cth) (the Act).

2. The applicant is a national of the Philippines, born in March 1983. He applied for the visa on 18 March 2020 on the basis of his relationship with his sponsor. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl 820.221 because the sponsor’s permanent visa was cancelled and the sponsor was no longer an Australian permanent resident. The applicant seeks review of the delegate’s decision.

3. No hearing was held in this case as the Tribunal was able to make a favourable decision on the material before it. 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.

   Relevant law

4. 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 reg 1.03 of the Regulations).

5. 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.

   Is the applicant sponsored by an Australian permanent resident?

6. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that the applicant was sponsored by Girlie Manacop Ladignon. The delegate noted that in October 2020 the sponsor’s permanent visa was cancelled. As the sponsor was no longer a permanent resident of Australia, the delegate found that the applicant did not meet the requirements of cl. 820.221.

7. The applicant provided to the Tribunal evidence that in October 2021 this Tribunal (differently constituted) set aside the cancellation of the sponsor’s visa. The effect of that decision is that the visa is taken to never have been cancelled.

8. The Tribunal finds that at the time of the decision, the sponsor is a permanent resident of Australia and therefore the applicant is capable of meeting cl. 820.221. However, the Tribunal is mindful that this clause effectively requires the applicant to continue to be the spouse or a de facto partner of the sponsor. In this case, it is not apparent that the delegate conducted an assessment of the relationship between the applicant and the sponsor. That it, it has not been determined that the applicant is a spouse or de facto partner of the sponsor. In the Tribunal’s view it is appropriate for that assessment to be undertaken, in the first instance, by the primary decision maker and not the Tribunal. For that reason, the Tribunal does not make a determination that the applicant meets cl. 820.221.

9. There is no evidence that the applicant was a holder of a Subclass 771 (Transit) visa when the application was made. The Tribunal finds that the applicant meets cl. 820.211(1)(a). Making a finding on a provision different to the one that was considered by the delegate would enable the delegate to assess the applicant’s relationship with the sponsor.

   Conclusion

10. 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

11. 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(1)(a) of Schedule 2 to the Regulations

    Kira Raif
    Senior Member