Yanti (Migration) - [2019] AATA 2460

Yanti (Migration) [2019] AATA 2460 (25 April 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mrs Faradilla Yanti
CASE NUMBER:  1729485
HOME AFFAIRS REFERENCE(S):           BCC2015/3125664
MEMBER:Kate Millar
DATE:25 April 2019
PLACE OF DECISION:  Adelaide
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 of Schedule 2 to the Regulations; and
·cl.820.221 of Schedule 2 to the Regulations.

STATEMENT MADE ON 26 APRIL 2019 AT 2:54PM
CATCHWORDS
MIGRATION – Partner (Temporary)(Class UK) – Subclass 820 (Spouse) – sponsorship approval limitations – compelling circumstances – previous partner deceased – longstanding relationship – sponsorship approved – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5, 65
Migration Regulations 1994, Schedule 2, rr 1.15A, 1.20J, cls 820.211, 820.221
CASES
Babicci v MIMIA [2004] FCA 1645
He v MIBP [2017] FCAFC 206
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

Mrs Yanti is a citizen of Indonesia. On 26 October 2015 she applied for a Partner (Temporary) (Class UK) visa on the basis of her relationship with Mr Wayne Pellagreen, an Australian citizen.
Her visa application was refused because the delegate found Mr Pellagreen had previously sponsored two partners, and could not be approved as a sponsor for a third partner unless there are compelling circumstances affecting him. As the delegate was not satisfied that there were compelling circumstances affecting Mr Pellagreen the visa application was refused under s.65 of the Migration Act 1958 (the Act).
Mrs Yanti appeared before the Tribunal on 9 January 2014, however it was apparent she required an interpreter, and the hearing was adjourned to 14 January 2019 with the assistance of an interpreter in the Indonesian and English languages. The Tribunal also received oral evidence from Mr Pellagreen and his mother Mrs Daphne Pellagreen. Mrs Yanti was represented in relation to the review by her registered migration agent.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
Mrs Yanti applied for the visa on 26 October 2015 on the basis of her relationship with Mr Pellagreen. 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), and Mrs Yanti must satisfy the primary criteria to be granted the visa.
The delegate refused to grant the visa on the basis that Mrs Yanti did not satisfy cl.820.211 of Schedule 2 to the Regulations which requires her to be sponsored by her spouse Mr Pellagreen.
The issue in the present case is whether Mrs Yanti meets the requirement to be sponsored by Mr Pellagreen; and, if so, whether she meets the other requirements in cl.820.221. This in turn requires consideration of whether she held a substantive visa at the time of her application and is the spouse…

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 Yanti (Migration)

Details

AGLC: Yanti (Migration) [2019] AATA 2460
Case: [2019] AATA 2460
Decision Date: 25 April 2019

CaseChat Overview and Summary

This matter concerned an application for a Partner (Temporary) (Class UK) visa, Subclass 820, made by Mrs Yanti based on her relationship with Mr Pellagreen. The primary issue before the Tribunal was whether Mrs Yanti met the sponsorship requirements under clause 820.211 of Schedule 2 to the *Migration Regulations 1994* (the Regulations), specifically whether she was sponsored by Mr Pellagreen, and if so, whether she met the other requirements under clause 820.221. This involved determining if she held a substantive visa at the time of application and was the spouse of Mr Pellagreen.

The Tribunal was required to consider clause 820.211(2)(c) and clause 820.221(4) of the Regulations, which stipulated that sponsorship must be approved by the Minister and remain in force. Approval of sponsorship is subject to limitations in regulation 1.20J, which restricts a person from sponsoring more than two individuals, requiring a minimum time lapse between sponsorships. In this instance, Mr Pellagreen had previously sponsored two partners who were granted permanent visas. Therefore, the Minister could only approve the sponsorship if satisfied that there were compelling circumstances affecting the sponsor, as permitted by regulation 1.20J.

The Tribunal considered the meaning of "compelling circumstances," referencing *Babicci v MIMIA* [2004] FCA 1645 and [2005] FCAFC 77, which indicated circumstances that evoke powerful, irresistible interest or lead to a positive finding that a provision should be waived. Departmental policy provided examples of compelling circumstances, including the death of a previous partner or a longstanding new relationship. The purpose of the sponsorship limitation is to prevent abuse of migration provisions, and the Tribunal noted that all aspects of the sponsor's circumstances, including potential hardship if sponsorship were not approved, are relevant.

Ultimately, the Tribunal remitted the application for reconsideration by the Minister, with a direction that Mrs Yanti met the criteria under clauses 820.211 and 820.221 of Schedule 2 to the Regulations.

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 matter should be remitted for reconsideration.CONSIDERATION OF CLAIMS AND EVIDENCE Mrs Yanti applied for the visa on 26 October 2015 on the basis of her relationship with Mr Pellagreen. 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), and Mrs Yanti must satisfy the primary criteria to be granted the visa. The delegate refused to grant the visa on the basis that Mrs Yanti did not satisfy cl.820.211 of Schedule 2 to the Regulations which requires her to be sponsored by her spouse Mr Pellagreen. The issue in the present case is whether Mrs Yanti meets the requirement to be sponsored by Mr Pellagreen; and, if so, whether she meets the other requirements in cl.820.221. This in turn requires consideration of whether she held a substantive visa at the time of her application and is the spouse of Mr Pellagreen as defined in the Act and Regulations. Is Mrs Yanti 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 sponsored by her sponsor. 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. Approval of sponsorship is subject to limitations contained in r.1.20J of the Regulations. This 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. 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)). The Minister may approve the sponsorship despite this provision if satisfied there are compelling circumstances affecting the sponsor (r.1.20J). Mr Pellagreen has sponsored two previous partners which resulted in the grant of a permanent visa; Ms Mariko Clarkson in 1996, and Ms Laura Williams in 2003. As a result, the sponsorship must not be approved unless there are compelling circumstances affecting the sponsor. 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. Departmental policy contained in the procedures advice manual states in regard to compelling circumstances:7.2 Compelling circumstances affecting the interests of the sponsorUnder 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.

Decision

Reasons for decision

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 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 of Schedule 2 to the Regulations; and·cl.820.221 of Schedule 2 to the Regulations.Kate MillarMember

Ratio Decidendi

Legal Principle Established

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