Wang (Migration)

[2023] AATA 4169

Wang (Migration) [2023] AATA 4169 (8 December 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Ya Wang

CASE NUMBER:  1929305

HOME AFFAIRS REFERENCE(S):          BCC2017/1698188

MEMBER:M. Edgoose

DATE:8 December 2023

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 820.221(4) of Schedule 2 to the Regulations

Statement made on 08 December 2023 at 1:30pm

CATCHWORDS

MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – sponsorship limitation requirement – compelling circumstances – two previous sponsorships – one previous spouse never entered Australia – genuine long term spousal relationship – decision under review remitted         

LEGISLATION

Migration Act 1958, ss 5, 65
Migration Regulations 1994, Schedule 2, cls 820.211, 820.221; rr 1.03, 1.15, 1.20

CASES

Babicci v MIMIA [2004] FCA 1645
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 (Cth) (the Act).

2. The applicant applied for the visa on 11 May 2017 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 820.221(4).

4. 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?

5. 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).

6. 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.

7. 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.

8. Regulation 1.20J of the Regulations 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. Under reg 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: reg 1.20J(2).

9. 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.

10. The sponsor, Mr Jaiwen Li, is an Australian citizen. His date of birth is 24 December 1968 and is nearly 55 years of age.

11. As per the delegate’s decision Departmental records confirmed that the sponsor has been the sponsor for two previous sponsorships both of which resulted in the grant of a Partner visa. The first sponsorship commenced on 21 March 1995. The second sponsorship commenced on 4 April 2007. Therefore, the sponsor does not meet reg 1.20J(1)(a).

12. Although the sponsor does not meet reg 1.20J(1)(a), the sponsorship in this matter may be approved if it can be established that there are compelling circumstances affecting the sponsor.

13. The Tribunal has given regard to the sponsors sponsorship history. The sponsors first sponsorship was in 1995. The sponsor had a short marriage to a Ms Xiaoping Zheng. Ms Zheng was granted a permanent residence visa in 1995 -1996, however the marriage ended in divorce in 1997.

14. The sponsors second sponsorship took place in 2006 to a Ms Di Zhou. The sponsor registered their marriage in 2006 and from this relationship the sponsor and Ms Zhou had one child. Ms Zhou was granted her permanent visa in 2008 but never lived in Australia. Her permanent residence visa expired in 2013. According to the sponsor in the delegates decision Ms Zhou did not stick to their family plan and didn’t settle in Australia. This marriage ended in divorce. Although deemed a valid sponsorship Ms Zhou never entered Australia and her permanent residence visa expired in 2013.  

15. The Tribunal has therefore turned its mind to the sponsors current sponsorship of Mrs Ya Wang.

16. On 11 May 2017 the couple submitted their onshore Subclass 820/801 partner visa application. The couple married on 10 March 2015 and had lived together prior to that date. Therefore, at time of this decision the couple have been in a married relationship for approximately 9 years. The couple submitted to the Tribunal a USB memory stick that contains videos and photographs of the couple together. The Tribunal is satisfied that the couple are in a genuine long term spousal relationship according to regulation 1.15A(3) and therefore meet the requirements of s 5F of the Act.

17. Based on the length of the current relationship and the circumstances as described earlier in this decision regarding the sponsors failed second sponsorship the Tribunal is satisfied in this matter that there are compelling reasons for waiving the provisions of reg 1.20J(2). The compelling reasons being the length of the current relationship and the sponsors failed second sponsorship that subsequently ended in divorce and that person never settling in Australia. 

18. On the evidence before the Tribunal the requirements of cl 820.221(4) are met.

19. 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

20. 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 820.221(4) of Schedule 2 to the Regulations

    M. Edgoose
    Member