1419953 (Migration) - [2016] AATA 3000

1419953 (Migration) [2016] AATA 3000 (4 January 2016)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mrs Rhiann Williams
Miss Ffion Harris
CASE NUMBER:  1419953
DIBP REFERENCE(S):  CLF2012/102537
MEMBER:John Cipolla
DATE:4 January 2016
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the applications for Partner (Temporary) (Class UK) visas and a Partner (Residence) (Class BS) visa for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 820 (Partner) visa:
cl.820.211 of Schedule 2 to the Regulations
cl.820.221(1) of Schedule 2 to the Regulations
r.2.03A(2) of the Regulations; and
r.2.03A(3) of the Regulations.
Statement made on 04 January 2016 at 1:46pm

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 24 November 2014 to refuse to grant the applicants Partner (Temporary) (Class UK) visas under s.65 of the Migration Act 1958 (the Act).
The first named applicant (the applicant) applied for the visa on 24 May 2012 on the basis of her relationship with her sponsor. At that time, Class UK contained only one subclass: Subclass 820 (Partner (Temporary)). 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.
The applicants were represented in relation to the review by their registered migration agent.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The primary visa applicant (hereinafter referred to as the applicant) applied for a Subclass 820 Partner visa on 24 May 2012. A delegate of the Department of Immigration refused the visa application in a decision made on 24 November 2014. Recourse to the delegate’s decision record indicates that the delegate was not satisfied that the applicant and the sponsor were in a de facto relationship for 12 months prior to the date of application, namely the period from May 2011 to May 2012. The delegate notes that the legislation pertaining to the 12 month de facto requirement may be waived if the applicant can establish compelling reasons for the waiver of the 12 month de facto relationship requirement. Evidence on the Departmental file indicates that there were at least 2 requests for the provision of such information with no response forthcoming and thus the delegate could not be satisfied that compelling reasons existed to waive the 12 month de facto relationship requirement.
The Tribunal has had regard to the substantial evidence provided to the Department of Immigration with the lodgement of the visa application. The Departmental file includes a substantial submission from the applicant's representative around the 12 month de facto relationship requirement. The submission notes that the 12 month relationship requirement prior to the lodgement…

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.

Continue reading 1419953 (Migration)

Details

AGLC: 1419953 (Migration) [2016] AATA 3000
Case: [2016] AATA 3000
Decision Date: 4 January 2016

CaseChat Overview and Summary

The case involves a primary visa applicant who applied for a Subclass 820 Partner visa on 24 May 2012. The visa application was refused by a delegate of the Department of Immigration on 24 November 2014. The refusal was based on the delegate's dissatisfaction that the applicant and the sponsor were in a de facto relationship for the 12 months prior to the application date. The applicant appealed this decision to the Tribunal, seeking reconsideration of the visa application.

The legal issues before the Tribunal were whether the applicant and the sponsor were in a de facto relationship for 12 months prior to the visa application date, and if not, whether there were compelling reasons to waive the 12-month requirement. The Tribunal considered the evidence provided by the applicant, including relationship statements from both the applicant and the sponsor, and a submission from the applicant's representative. The Tribunal also took into account the applicant's dependent daughter and the couple's decision to enter into a marital relationship on 18 November 2014.

The Tribunal concluded that the matter should be remitted for reconsideration by the Department. The Tribunal found that the evidence provided by the applicant and the representative, including the relationship statements and the compelling and compassionate circumstances, warranted a reconsideration of the application. The Tribunal directed that if the applicant meets the remaining criteria, she will be entitled to the grant of a Subclass 820 visa.

In summary, the Tribunal has remitted the visa application to the Department for reconsideration, with the direction that the first named applicant meets the criteria for a Subclass 820 visa if she satisfies the remaining conditions.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.CONSIDERATION OF CLAIMS AND EVIDENCE The primary visa applicant (hereinafter referred to as the applicant) applied for a Subclass 820 Partner visa on 24 May 2012. A delegate of the Department of Immigration refused the visa application in a decision made on 24 November 2014. Recourse to the delegate’s decision record indicates that the delegate was not satisfied that the applicant and the sponsor were in a de facto relationship for 12 months prior to the date of application, namely the period from May 2011 to May 2012. The delegate notes that the legislation pertaining to the 12 month de facto requirement may be waived if the applicant can establish compelling reasons for the waiver of the 12 month de facto relationship requirement. Evidence on the Departmental file indicates that there were at least 2 requests for the provision of such information with no response forthcoming and thus the delegate could not be satisfied that compelling reasons existed to waive the 12 month de facto relationship requirement. The Tribunal has had regard to the substantial evidence provided to the Department of Immigration with the lodgement of the visa application. The Departmental file includes a substantial submission from the applicant's representative around the 12 month de facto relationship requirement. The submission notes that the 12 month relationship requirement prior to the lodgement of the visa application is able to be satisfied on the basis that the applicant and the sponsor decided to make a permanent commitment to the relationship in January 2011. This was evidenced by the sponsor travelling to United Kingdom in June 2011. The submission also notes that if the delegate was not satisfied of the existence of a relationship 12 months prior to the application that there were compelling and compassionate circumstances to waive the 12 month de facto relationship requirement. The submission notes that the applicant has a dependent daughter who was currently being raised by the applicant and the sponsor in Townsville Queensland and makes reference to a number of Migration Review Tribunal decisions pertaining to compassionate and compelling circumstances to waive the 12 month de facto relationship requirement. The submission also notes that the couple entered into a marital relationship on 18 November 2014 and a copy of the marriage certificate was also provided with the submission. Relationship statements have been provided from the sponsor and the applicant documenting the inception and development of the relationship. The evidence on the Departmental file indicates that the applicant was a resident of the United Kingdom prior to relocating to Australia with her daughter to take up residence with the sponsor in Townsville. A submission from the applicant indicates that in June 2011 the sponsor came to the United Kingdom to further progress the relationship and that the applicant and her daughter travelled to Australia in March 2012 returning briefly to England to tie up their affairs before returning to Australia to reside with the sponsor in April 2012. The submission notes that the sponsor met the applicant's family in June 2011 in the United Kingdom and that the applicant had met the sponsor's family members in Australia.FINDINGS AND REASONS

Decision

Reasons for decision

The Tribunal will return the visa application to the Department for reconsideration. If the applicant meets the remaining criteria, the applicant will be entitled to the grant of a Subclass 820 visa.DECISION The Tribunal remits the applications for Partner (Temporary) (Class UK) visas and a Partner (Residence) (Class BS) visa for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 820 (Partner) visa:cl.820.211 of Schedule 2 to the Regulationscl.820.221(1) of Schedule 2 to the Regulationsr.2.03A(2) of the Regulations; andr.2.03A(3) of the Regulations.John CipollaSenior MemberATTACHMENT - Extract from Migration Regulations 19941.09A De facto partner and de facto relationship(1)For subsection 5CB (3) of the Act, this regulation sets out arrangements for the purpose of determining whether 1 or more of the conditions in paragraphs 5CB (2) (a), (b), (c) and (d) of the Act exist.Note 1 See regulation 2.03A for the prescribed criteria applicable to de facto partners.Note 2 The effect of subsection 5CB (1) of the Act is that a person is the de facto partner of another person (whether of the same sex or a different sex) if the person is in a de facto relationship with the other person. Subsection 5CB (2) sets out conditions about whether a de facto relationship exists, and subsection 5CB (3) permits the regulations to make arrangements in relation to the determination of whether 1 or more of those conditions exist.(2)If the Minister is considering an application for:(a)a Partner (Migrant) (Class BC) visa; or(b)a Partner (Provisional) (Class UF) visa; or(c)a Partner (Residence) (Class BS) visa; or(d)a Partner (Temporary) (Class UK) visa;the Minister must consider all of the circumstances of the relationship, including the matters set out in subregulation (3).(3)The matters for subregulation (2) are:(a)the financial aspects of the relationship, including:(i) any joint ownership of real estate or other major assets; and(ii) any joint liabilities; and(iii) the extent of any pooling of financial resources, especially in relation to major financial commitments; and(iv) whether one person in the relationship owes any legal obligation in respect of the other; and(v) the basis of any sharing of day to day household expenses; and(b)the nature of the household, including:(i) any joint responsibility for the care and support of children; and(ii) the living arrangements of the persons; and(iii) any sharing of the responsibility for housework; and(c)the social aspects of the relationship, including:(i) whether the persons represent themselves to other people as being in a de facto relationship with each other; and(ii) the opinion of the persons’ friends and acquaintances about the nature of the relationship; and(iii) any basis on which the persons plan and undertake joint social activities; and(d)the nature of the persons’ commitment to each other, including:(i) the duration of the relationship; and(ii) the length of time during which the persons have lived together; and(iii) the degree of companionship and emotional support that the persons draw from each other; and(iv) whether the persons see the relationship as a long term one.(4)If the Minister is considering an application for a visa of a class other than a class mentioned in subregulation (2), the Minister may consider any of the circumstances mentioned in subregulation (3).

Ratio Decidendi

Legal Principle Established

The Tribunal remits the applications for Partner (Temporary) (Class UK) visas and a Partner (Residence) (Class BS) visa for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 820 (Partner) visa:cl.820.211 of Schedule 2 to the Regulationscl.820.221(1) of Schedule 2 to the Regulationsr.2.03A(2) of the Regulations; andr.2.03A(3) of the Regulations.John CipollaSenior MemberATTACHMENT - Extract from Migration Regulations 19941.09A De facto partner and de facto relationship(1)For subsection 5CB (3) of the Act, this regulation sets out arrangements for the purpose of determining whether 1 or more of the conditions in paragraphs 5CB (2) (a), (b), (c) and (d) of the Act exist.Note 1 See regulation 2.03A for the prescribed criteria applicable to de facto partners.Note 2 The effect of subsection 5CB (1) of the Act is that a person is the de facto partner of another person (whether of the same sex or a different sex) if the person is in a de facto relationship with the other person. Subsection 5CB (2) sets out conditions about whether a de facto relationship exists, and subsection 5CB (3) permits the regulations to make arrangements in relation to the determination of whether 1 or more of those conditions exist.(2)If the Minister is considering an application for:(a)a Partner (Migrant) (Class BC) visa; or(b)a Partner (Provisional) (Class UF) visa; or(c)a Partner (Residence) (Class BS) visa; or(d)a Partner (Temporary) (Class UK) visa;the Minister must consider all of the circumstances of the relationship, including the matters set out in subregulation (3).(3)The matters for subregulation (2) are:(a)the financial aspects of the relationship, including:(i) any joint ownership of real estate or other major assets; and(ii) any joint liabilities; and(iii) the extent of any pooling of financial resources, especially in relation to major financial commitments; and(iv) whether one person in the relationship owes any legal obligation in respect of the other; and(v) the basis of any sharing of day to day household expenses; and(b)the nature of the household, including:(i) any joint responsibility for the care and support of children; and(ii) the living arrangements of the persons; and(iii) any sharing of the responsibility for housework; and(c)the social aspects of the relationship, including:(i) whether the persons represent themselves to other people as being in a de facto relationship with each other; and(ii) the opinion of the persons’ friends and acquaintances about the nature of the relationship; and(iii) any basis on which the persons plan and undertake joint social activities; and(d)the nature of the persons’ commitment to each other, including:(i) the duration of the relationship; and(ii) the length of time during which the persons have lived together; and(iii) the degree of companionship and emotional support that the persons draw from each other; and(iv) whether the persons see the relationship as a long term one.(4)If the Minister is considering an application for a visa of a class other than a class mentioned in subregulation (2), the Minister may consider any of the circumstances mentioned in subregulation (3).