Yoo (Migration)

[2020] AATA 1962

Yoo (Migration) [2020] AATA 1962 (28 May 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms So Jin Yoo

CASE NUMBER:  1826891

HOME AFFAIRS REFERENCE(S):          BCC2017/2137051

MEMBER:P. Maishman

DATE:28 May 2020

PLACE OF DECISION:  Perth

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(4) of Schedule 2 to the Regulations

Statement made on 28 May 2020 at 1:54pm

CATCHWORDS

MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – five-year limitation on partner sponsorship applications – sponsor previously sponsored a different partner – at time of department’s decision, five years not passed – at time of tribunal’s review, five years passed – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), ss 65, 360(2)(a)

Migration Regulations 1994 (Cth), r 1.20J, Schedule 2, cl 820.211(2)(c), 820.221(4)

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 (the Act).

2. The applicant applied for the visa on 16 June 2017 on the basis of her relationship with her sponsor, Mr Danny Brun. 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). 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)(c) because another person had been granted a visa based on the sponsor’s sponsorship, and less than five years had passed since that visa application.

4. In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the visa applicant based on the material before it, pursuant to s.360(2)(a) of the Act.

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

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The Tribunal had before it a copy of the Department’s file containing a copy of the visa application and sponsor form, and evidence provided to the Department in relation to the application.

8. The applicant gave the Department a copy of the delegate’s decision record, a statement by the sponsor to the department on 13 June 2016, and a submission by the representative dated 30 April 2020.

9. The delegate has not formally assessed the applicant’s and sponsor’s relationship as to whether the applicant meets the criteria to be considered the spouse or de facto partner of the sponsor, as defined in the legislation. Having regard to the President’s Direction - Conducting Migration and Refugee Reviews the Tribunal will restrict its review to the issues the subject of the delegate’s decision.

10. The Department’s file contains a Form 40SP - Sponsorship for a partner to migrate to Australia signed and dated by the sponsor on 30 November 2017 in respect of the applicant. The sponsor has declared that he previously sponsored a different person and the application was lodged on 25 August 2014.

11. The Department’s file notes indicate the first partner visa application was lodged on 25 August 2014.

12. The issue in the present case is whether there is a limitation on the approval of the sponsorship.

    Is the applicant sponsored?

13. 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 r.1.03 of the Regulations).

14. A copy of the applicant’s passport is on the Department’s file. The Tribunal finds the applicant has turned 18. A copy of the sponsor’s passport is on the Department’s file. The Tribunal finds the sponsor is an Australian citizen.

15. The Department’s file contains the sponsorship Form 40SP lodged with the application and signed by the sponsor. The Tribunal finds that the sponsor completed the requisite sponsorship form and the applicant was, at the time of application, sponsored by the sponsor.

16. Therefore the time of application sponsorship requirement, cl.820.211(2)(c), is met.

17. 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. 

18. 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 r.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.

19. The sponsor previously sponsored a partner visa application which was applied for on 25 August 2014. As a result the current sponsorship must not be approved until a period of 5 years has passed since 5 August 2014. 

20. At the time of this decision, more than five years has passed since the date of the earlier visa application and the sponsor approval limitation imposed by r.1.20J no longer applies.   

21. The Tribunal is satisfied that there is no information before it that suggests that the sponsorship limitations of r.1.20K, r.1.20KA or r.1.20KB prevent approval.

22. As a result, the sponsorship is approved, and cl.820.221(4) is met.

23. On the evidence before the Tribunal the requirements of cl.820.211(2)(c) and cl.820.221(4) are met.

24. 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

25. 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(4) of Schedule 2 to the Regulations

    P. Maishman
    Member