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.