Vo (Migration)

[2022] AATA 90

Vo (Migration) [2022] AATA 90 (7 January 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Thi Ngoc Loan Vo

CASE NUMBER:  1831222

HOME AFFAIRS REFERENCE(S):          BCC2016/3351133

MEMBER:M. Edgoose

DATE:7 January 2022

PLACE OF DECISION:  Melbourne

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

·cl 820.221 of Schedule 2 to the Regulations.

Statement made on 07 January 2022 at 11:44am

CATCHWORDS

MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – sponsorship limitation requirement – third sponsorship by the sponsor – compelling circumstances to waive the requirement – sponsor’s significant health issues – decision under review remitted          

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 820.211, 820.221; rr 1.03, 1.20

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 applied for the visa on 10 October 2016 on the basis of her relationship with her 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 (Cth) (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.

3. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl 820.211(2).

4. The applicant was represented in relation to the review by her registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Is the applicant sponsored?

6. 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).

7. 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.

8. Approval of sponsorship is subject to limitations contained in reg 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 reg 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 reg 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 reg 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.

9. Regulation 1.20J(1)(a) sets a limit on the number of people that a sponsor can sponsor in a lifetime. The sponsor in this matter Mr Tony Stephen Hitchman has had two previous sponsorships. The first of these sponsorships according to Mr Hitchman’s statutory declaration dated 4 January 2022 took place in 1990 for a Ms Rose Amet. Mr Hitchman and Ms Amet were in a de facto relationship which ended in 1992. Mr Hitchman mentioned in his statutory declaration that there are no children from this relationship.

10. The Tribunal notes that according to Mr Hitchman’s statutory declaration it was not until 2010 that he sponsored his then wife Ms Iris Antiola whom he had married in 2008. The couple separated in 2014 and divorced in October 2015. Mr Hitchman stated that his relationship began to break down when he was receiving treatment for cancer.

11. Mr Hitchman met Ms Thi Ngoc Loan Vo, the visa applicant, in this matter through mutual friends in May 2015 and married on 20 December 2015. On 10 October 2016 the couple submitted an application for a Partner visa. This application was refused on 11 October 2018 and is the subject of this review.

12. Given the circumstances in this matter the Tribunal considered whether there were compelling circumstances as to why the requirements of reg 1.20J(1) should be waived. Regulation 1.20J(2) states that:

    the Minister may approve the sponsorship of an applicant for a visa if the Minister is satisfied that there are compelling circumstances affecting the sponsor.

13. The Tribunal has given careful consideration to the submissions made to the Tribunal on 4 January 2021 that included a substantial submission from the applicant’s representative, a statutory declaration from the sponsor, a letter from the sponsors GP, Dr Ashad Ghani and a summary of the sponsors medical history. Each of the submissions highlighted that the sponsor has ongoing serious health issues including a fragile immune system and diabetes. Given the sponsors significant health issues the Tribunal is satisfied there are compelling reasons as to why the requirements of reg 1.20J(1) should be waived in this matter. 

14. The Tribunal makes no finding regarding the visa applicant and sponsor being in a genuine relationship. This is a matter for the Department to determine. The Tribunal has only made a finding regarding the sponsorship.

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

16. 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

17. 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

    ·cl 820.221 of Schedule 2 to the Regulations.

    M. Edgoose
    Member