Zhang (Migration)

[2020] AATA 1907

Zhang (Migration) [2020] AATA 1907 (18 May 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Yongming Zhang

CASE NUMBER:  1921750

DIBP REFERENCE:  BCC2016/2537060

MEMBER:Rosa Gagliardi

DATE:18 May 2020

PLACE OF DECISION:  Australian Capital Territory

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.

Statement made on 18 May 2020 at 12:57pm

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – sponsorship limitation – permanent contributory parent visa holder limited from sponsoring partner for five years – at time of application, five years not passed – at time of review, five year passed – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.20KA(2), Schedule 2, cl 820.211(2)(c)

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 25 July 2019 to refuse to grant the visa applicant a Partner (Temporary) (Class UK) Subclass 820 visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 1 August 2016. The delegate refused to grant the visa on the basis that the applicant did not meet the prescribed sponsorship requirements as outlined in subclause 820.211(2)(c) and Division 1.4B.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

4. Regulation 1.20KA prescribes limitations on approving the sponsorship relating to partner and prospective marriage visa applicants by persons granted a permanent Contributory Parent category visa.   Regulation 1.20KA prevents persons from sponsoring their partner or fiancé/fiancée for a Partner or Prospective Marriage visa for 5 years from the day the person was granted their permanent Contributory Parent visa, if they:

   ·Were granted their permanent Contributory Parent visa on or after 1 July 2009; and

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

5. At the time of application, it was determined that the applicant’s sponsor was granted a permanent Contributory Parent category visa after 1 July 2009, and was in a spouse/de facto partnership with the sponsor before the permanent Contributory Parent visa was granted.  Five years had not passed since the grant of the sponsor’s permanent Contributory Parent visa.  The sponsor was therefore affected by the 1.20KA limitation which prevented her from being a sponsoring partner as defined in subclause 820.211(2)(c).

6. Under regulation 1.20KA(3) the limitation on sponsorship does not apply if the applicant had compelling reasons, in certain prescribed circumstances.  The Department found there were no such compelling reasons.

7. The limitation under regulation 1.20K(A) was put in place to prevent abuse of the Contributory Parent Category visa provisions and the Department took this into consideration in making its decision.

8. At the time of decision by the Tribunal, five years have now passed and the limitation is no longer applicable to the applicant.  Hence, while the applicant meets subclause 820.211(2)(c), the Department will go on to assess at first instance the substantive issues in this case.

   CONCLUSION

9. The Tribunal finds that given the requisite five years have now passed the limitation rule under regulation 1.20K(A) no longer applies.

   DECISION

10. 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.

    Rosa Gagliardi
    Member