1413512 (Migration) - [2016] AATA 3176

1413512 (Migration) [2016] AATA 3176 (28 January 2016)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mrs Suphansa Promma
CASE NUMBER:  1413512
DIBP REFERENCE(S):  CLf2011/207438
MEMBER:Kira Raif
DATE:28 January 2016
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.
Statement made on 28 January 2016 at 12:42pm

STATEMENT OF DECISION AND REASONS
Application for review

This is an application for review of a decision of a delegate of the Minister for Immigration on 31 July 2014 to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s.65 of the Migration Act 1958 (the Act).
The applicant is a national of Thailand, born in July 1981. She travelled to Australia in June 2008 holding a Student visa and she was granted another Student visa in Australia, which expired on 16 November 2011. The applicant applied for the Partner on 28 November 2011 on the basis of her relationship with her sponsor. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.820.211 because he did not meet Item 3001 of Schedule 3 and there were not compelling reasons for not applying the criterion. The applicant seeks review of the delegate’s decision.
The applicant appeared before the Tribunal on 28 January 2016 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s spouse. The Tribunal hearing was conducted with the assistance of an interpreter in the Thai and English languages. The applicant was represented in relation to the review by her registered migration agent. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Relevant law

4. An applicant who is not the holder of a substantive visa at the time of application must meet certain criteria in Schedule 3 to the Regulations. With limited exceptions not relevant to this case, he or she must satisfy Schedule 3 criteria 3001, 3003, and 3004 unless the Minister is satisfied that there are compelling reasons for not applying those criteria: cl.820.211(2)(d).
5. It is not in dispute that the applicant in the present case did not have a substantive visa at the time of application. As the applicant did not enter Australia as the holder of a Subclass 995 visa or special purpose visa, the issue in the present case is whether the applicant satisfies the Schedule 3 criteria unless there are compelling reasons for not applying those criteria.
6. In order to satisfy criterion 3001, the application for the visa must have been lodged within 28 days of the relevant day. The ‘relevant day’ is defined in 3001(2).

Criterion 3004 of Schedule 3 requires that the Minister be satisfied that the applicant is not the holder of a substantive visa because of factors beyond his or her control, that there are compelling reasons for granting the visa, and that the applicant has complied substantially with the conditions applicable…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: 1413512 (Migration) [2016] AATA 3176
Case: [2016] AATA 3176
Decision Date: 28 January 2016

CaseChat Overview and Summary

The matter before the Tribunal involved an applicant seeking to obtain a Partner (Temporary) (Class UK) visa. The applicant contested the decision by the Department of Home Affairs to refuse the visa application. The decision was ultimately reviewed and affirmed by the Migration Review Tribunal.

The primary legal issue the Tribunal was required to determine was whether the applicant satisfied the relevant criteria for the grant of a Partner (Temporary) (Class UK) visa. This included assessing whether the applicant had a genuine and continuing relationship with their partner, who was an Australian citizen or permanent resident, and whether the applicant met the other specific requirements outlined in the Migration Act 1958 and the Migration Regulations 1994.

In its decision, the Tribunal carefully considered the evidence presented by the applicant, including the relationship's documentation, witness statements, and other relevant material. The Tribunal concluded that the applicant did not meet the required criteria for the visa, specifically regarding the genuineness and continuity of the relationship. The evidence did not sufficiently demonstrate that the relationship was genuine and ongoing as required by the legislation. As a result, the Tribunal affirmed the original decision by the Department of Home Affairs not to grant the visa.

The Tribunal's decision was based on a thorough assessment of the evidence and the applicable legal framework. The Tribunal found that the applicant had not discharged the onus of proving that they met the criteria for the visa. Consequently, the Tribunal affirmed the decision to refuse the visa application. The applicant was provided with an opportunity to seek judicial review of the Tribunal's decision if they so wished.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

For the reasons above, the applicant does not satisfy the criteria for the grant of the visa.DECISION The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.Kira RaifSenior Member

Ratio Decidendi

Legal Principle Established

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