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Important Decision On Partner Visas From Full Court!!
I know everyone out there is very understandably extremely concerned about the novel corona virus and its impacts on our ability to carry on work and normal day to day activities!!
To all who read this, I wish you to stay well!!!
Amidst the cascade of scary news, I did want to bring to everyone's attention an important new decision from the Full Court, handed down yesterday that showed up today on the Federal Court's Website, Babar v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) FCAFC 38 (12 March 2020).
The essential holding of this case is that in determining whether a person is a sponsor, for the purposes of Regulation 1.20, and thus for determining whether an applicant is sponsored and can meet the criteria for the grant of a Subclass 820 temporary partner visa, the Department and the Tribunal cannot make a decision based on PAM3. The Policy invalidly goes beyond Regulation 1.20, which requires that in order for a person to be a "sponsor", they need only give "undertakings" that they will provide financial support and accommodation to the applicant to the extent necessary during the 2 year period following visa grant. The Policy indicates that reviewing officers should make an assessment of whether the sponsor has the ability to satisfy the undertaking.
In essence, the decision of the Full Court in Babar says that since PAM3 imposes requirements that are more stringent than the actual regulation, it is invalid, and a decision (to refuse a visa application) that is predicated on an invalid regulation is one that is affected by jurisdictional error and therefore subject to challenge.
So the next time the Department or the Tribunal try to say that a person cannot qualify as a sponsor for a partner visa applicant unless they can show that they can meet the sponsorship obligation of providing financial support and accommodation, you can tell them that no, they are wrong, the regulations simply don't require this.
It's a ray of sunshine to be happy about in this scary and frightening time.
And if you want to read more details, there's more about the case on my newsletter, The Migration Messenger. Just click here. But for the full benefit of the publication, you'll need to subscribe.
Comments
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Wednesday, 18 March 2020
Thanks very much Nilesh I hope you and the rest of the MA community will continue ot find these posts helpful to your practice!
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Friday, 13 March 2020perhaps evidence of financial capacity, and/or investments and/or owning of property might forestall some of this, especially at the 1st instance for a possible AAT hearing.
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Wednesday, 18 March 2020
Actually the point of this case is that the Department cannot lawfully require such evidence.
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Wednesday, 01 April 2020
Michael,Understand that ,but it doesn't hurt to try to forestall that situation if it is at all possible. If not, then fine. RB
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Saturday, 14 March 2020
Thank you. This principle can also apply to Citizenship b y descent When all that needs to be established is the applicants identity, status of parents citizenship at time of birth. I have noticed that overseas missions ask questions that go beyond the Legislation and requirements
Immigration blog
Michael
Another useful post.
It's really legendary of you to provide easy to understand commentary so promptly.
Thank you for your efforts is supporting us all.
Nilesh Nandan