Yesudass (Migration)

[2023] AATA 3085

Yesudass (Migration) [2023] AATA 3085 (15 September 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Ebinasan Yesudass

VISA APPLICANT:  Mrs Joyce Lalitha Israel

CASE NUMBER:  2218079

DIBP REFERENCE(S):  BCC2019/5823497

MEMBER:Maxina Martellotta

DATE:15 September 2023

PLACE OF DECISION:  Perth

DECISION:The Tribunal remits the application for a Partner (Provisional) (Class UF) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 309 (Partner (Provisional)) visa:

· cl 309.222 of Schedule 2 to the Regulations.

Statement made on 15 September 2023 at 7:59am

CATCHWORDS

MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – sponsorship limitation – partner relationship on or before the Contributory Parent visa was granted – five-year limitation period has expired – decision under review remitted

LEGISLATION

Migration Act 1958, ss 5, 65
Migration Regulations 1994, Schedule 2, cls 309.213, 309.222; rr 1.03, 1.15. 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 Immigration on 19 November 2022 to refuse to grant the visa applicant a Partner (Provisional) (Class UF) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicant applied for the visa on 18 November 2019 on the basis of her relationship with her sponsor, the review applicant. At that time, Class UF contained only one subclass: Subclass 309 (Partner (Provisional)). The criteria for the grant of this visa are set out in Part 309 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 309.222 of Schedule 2 of the Regulations. The delegate concluded that the sponsorship limitations on approving sponsorship specified in reg 1.20KA had application. This prevents a person from sponsoring their partner for a Partner visa for the period of five years from the day they were granted their permanent Contributory Parent visa if they:

   ·were granted a permanent Contributory Parent category visa on or after 1 July 2009; and

   ·were in a spouse or de facto partner relationship with the visa applicant on or before the date their permanent Contributory Parent visa was granted.

4. The delegate further concluded that the exception under reg 1.20KA(3) did not apply. They decided that there were no compelling reasons (other than financial circumstances) for the visa applicant either:

   ·not applying for the Contributory Parent visa at the same time as the proposed sponsor; or

   ·applying for the Contributory Parent visa at the same time as the proposed sponsor but withdrawing the application before it was granted.

5. The review applicant appeared before the Tribunal on 6 June 2023 by video to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant, Ms Joyce Lalitha Israel, the review and visa applicant’s son, Mr Jones Ebinesan, and their daughter, Ms Mercy Devapriya Ebinesan. The Tribunal was assisted by an interpreter in the Tamil (Indian) language. At hearing, the review applicant confirmed that he was able to clearly understand the interpreter.

6. In addition to the oral evidence, the Tribunal also considered documents provided by the review applicant and documents contained in the Department file.

7. For the following reasons, the Tribunal has concluded that the decision under review is to be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Are the sponsorship requirements met?

8. The issue that arises for consideration in this matter is whether the sponsorship requirements are met.

9. Clause 309.213 requires that the visa applicant is sponsored by the review applicant, where such person has turned 18; or where they have not, by the review applicant’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).

10. At the time of decision, this sponsorship must have been approved and still be in force. Approval of sponsorship is subject to reg 1.20KA, which places a limit on the ability of certain Parent visa holders to sponsor another person for a Partner visa.

11. Regulation 1.20KA applies where a Subclass 143 (Contributory Parent) or Subclass 864 (Contributory Aged Parent) visa holder, who was granted that visa on or after 1 July 2009, seeks to sponsor another person after that date. If the person to be sponsored for a Partner or a Prospective Marriage visa was the proposed sponsor’s spouse or de facto partner on or before the day the subclass 143 or 864 visa was granted, a period of five years must have passed since the date that the sponsor’s visa was granted. These requirements apply unless there are compelling circumstances affecting the applicant: reg 1.20KA(3).

    Does a sponsorship limitation apply?

12. The oral evidence provided at hearing and documents in the Department file confirmed the following facts and the Tribunal finds that:

    a)The review applicant was granted a Contributory Parent (Subclass 143) visa on 13 September 2018.

    b)The review applicant sought approval to sponsor the visa applicant in her application for a Partner (Provisional) (Subclass 309) visa made on 18 November 2019.

    c)The review applicant and the visa applicant were married on 8 May 1971.

13. The five-year limitation period is calculated from the date the Contributory Partner visa was granted[1].  As of the date of decision, the sponsorship limitation of five years has expired and as such the limitation described in reg 1.20KA (1) does not has application. 

    [1] Regs.1.20KA(2)

    DECISION

14. The Tribunal remits the application for a Partner (Provisional) (Class UF) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 309 (Partner (Provisional)) visa:

    ·cl 309.222 of Schedule 2 to the Regulations.

    Maxina Martellotta
    Member

    
    

    ATTACHMENT  - Extract from Migration Regulations 1994

    1.15ASpouse

    (1)For subsection 5F (3) of the Act, this regulation sets out arrangements for the purpose of determining whether 1 or more of the conditions in paragraphs 5F (2) (a), (b), (c) and (d) of the Act exist.

    (2)If the Minister is considering an application for:

    (a)a Partner (Migrant) (Class BC) visa; or

    (b)a Partner (Provisional) (Class UF) visa; or

    (c)a Partner (Residence) (Class BS) visa; or

    (d)a Partner (Temporary) (Class UK) visa;

    the Minister must consider all of the circumstances of the relationship, including the matters set out in subregulation (3).

    (3)The matters for subregulation (2) are:

    (a)the financial aspects of the relationship, including:

    (i)       any joint ownership of real estate or other major assets; and

    (ii)      any joint liabilities; and

    (iii)     the extent of any pooling of financial resources, especially in relation to major financial commitments; and

    (iv)    whether one person in the relationship owes any legal obligation in respect of the other; and

    (v)     the basis of any sharing of day‑to‑day household expenses; and

    (b)the nature of the household, including:

    (i)       any joint responsibility for the care and support of children; and

    (ii)      the living arrangements of the persons; and

    (iii)     any sharing of the responsibility for housework; and

    (c)the social aspects of the relationship, including:

    (i)       whether the persons represent themselves to other people as being married to each other; and

    (ii)      the opinion of the persons’ friends and acquaintances about the nature of the relationship; and

    (iii)     any basis on which the persons plan and undertake joint social activities; and

    (d)the nature of the persons’ commitment to each other, including:

    (i)       the duration of the relationship; and

    (ii)      the length of time during which the persons have lived together; and

    (iii)     the degree of companionship and emotional support that the persons draw from each other; and

    (iv)    whether the persons see the relationship as a long‑term one.

    (4)If the Minister is considering an application for a visa of a class other than a class mentioned in subregulation (2), the Minister may consider any of the circumstances mentioned in subregulation (3).