1421365 (Migration) - [2016] AATA 4137

1421365 (Migration) [2016] AATA 4137 (22 July 2016)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Ms LIJUN XU
Mr QILONG LUAN
CASE NUMBER:  1421365
DIBP REFERENCE(S):  OSF2012/099705
MEMBER:Di Hubble
DATE:22 July 2016
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the applications for Partner (Migrant) (Class BC) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 100 (Partner) visa:
·cl.100.221(2)(b) of Schedule 2 to the Regulations.

Statement made on 22 July 2016 at 5:20pm

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 11 December 2014 to refuse to grant the visa applicants Partner (Migrant) (Class BC) visas under s.65 of the Migration Act 1958 (the Act).
The applicants applied for the visas on 11 April 2012 on the basis of the first named applicant’s relationship with her sponsor and spouse, Mr Kevin George. At that time, Class BC contained one subclass: Subclass 100 (Partner).
The criteria for the grant of a Subclass 100 visa are set out in Part 100 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 delegate refused to grant the visa on the basis that the first named applicant (the applicant) did not satisfy cl.100.221(2)(b) because the delegate was not satisfied that the applicant is the spouse or de facto partner of her sponsor.
The applicants, who were represented by a registered migration agent, sought review of the delegate’s decision on 31 December 2014.
The applicants appeared before the Tribunal on 21 June 2016 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
CONSIDERATION OF CLAIMS AND EVIDENCE
Whether the parties are in a spouse or de facto relationship
Clause 100.221 requires that the applicant meet one of five alternative requirements. These include cl.100.221(2) and (2A) which require, amongst other things, that at the time of this decision, the applicant is the spouse or de facto partner of the ‘sponsoring partner’. Unless the applicant was granted a Subclass 309 visa by Ministerial intervention, the ‘sponsoring partner’ is the person who was specified as the applicant’s spouse or de facto partner or intended spouse or de facto partner in the related Subclass 309 application, being an Australian citizen, permanent resident or eligible New Zealand citizen. In this instance, the applicant claims to be the spouse of the sponsor, who is a ‘sponsoring partner’ within the meaning of that term.
‘Spouse’ is defined in s.5F of the Act and provides that a person is the spouse of another where the two persons are in a married relationship. Persons in a married…

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

Case: [2016] AATA 4137
Decision Date: 22 July 2016

CaseChat Overview and Summary

This matter came before the Tribunal concerning an application for a Partner (Migrant) (Class BC) visa. The applicant sought to establish a spousal relationship with the sponsor, who was an Australian citizen, permanent resident, or eligible New Zealand citizen. The core of the dispute revolved around whether the parties met the criteria for a genuine and continuing spousal relationship as defined by the Migration Act 1994 and the Migration Regulations 1994.

The Tribunal was required to determine whether the applicant and the sponsor were in a valid spousal relationship, specifically addressing the requirements of clause 100.221(2) and (2A) of Schedule 2 to the Regulations. This involved assessing whether the parties were married to each other under a marriage valid for the purposes of the Act, whether there was a mutual commitment to a shared life to the exclusion of all others, whether the relationship was genuine and continuing, and whether they lived together or did not live separately and apart on a permanent basis, as stipulated by section 5F(2) of the Act. The Tribunal also had to consider all the circumstances of the relationship, including financial, social, household, and commitment aspects, as outlined in regulation 1.15A(3).

The Tribunal found that the parties were validly married in Frankston on 3 December 2011, satisfying the requirement of section 5F(2)(a). While the delegate had initially made a "no evidence" decision due to difficulties in obtaining supporting documentation, the Tribunal, after granting an extension of time and receiving substantial documentary evidence from the applicants' new representative, was able to consider the matter more fully. Given the evidence presented, the Tribunal determined that the first named applicant met the criteria under clause 100.221(2)(b) of Schedule 2 to the Regulations.

Consequently, the Tribunal remitted the applications for Partner (Migrant) (Class BC) visas for reconsideration by the Minister, with the direction that the first named applicant meets the specified criteria for a Subclass 100 (Partner) visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The applicants appeared before the Tribunal on 21 June 2016 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.CONSIDERATION OF CLAIMS AND EVIDENCEWhether the parties are in a spouse or de facto relationship Clause 100.221 requires that the applicant meet one of five alternative requirements. These include cl.100.221(2) and (2A) which require, amongst other things, that at the time of this decision, the applicant is the spouse or de facto partner of the ‘sponsoring partner’. Unless the applicant was granted a Subclass 309 visa by Ministerial intervention, the ‘sponsoring partner’ is the person who was specified as the applicant’s spouse or de facto partner or intended spouse or de facto partner in the related Subclass 309 application, being an Australian citizen, permanent resident or eligible New Zealand citizen. In this instance, the applicant claims to be the spouse of the sponsor, who is a ‘sponsoring partner’ within the meaning of that term. ‘Spouse’ is defined in s.5F of the Act and provides that a person is the spouse of another where the two persons are in a married relationship. Persons in a married relationship must be married to each other under a marriage that is valid for the purposes of the Act, there must be a mutual commitment to a shared life as husband and wife to the exclusion of all others, the relationship must be genuine and continuing, and the couple must live together, or not live separately and apart on a permanent basis: s.5F(2)(a)-(d). In forming an opinion as to these matters, regard must be had to all of the circumstances of the relationship. This includes evidence of the financial and social aspects and the nature of the parties’ household and their commitment to each other as set out in r.1.15A(3), which is extracted in the attachment to this decision.Are the parties validly married? If the parties are validly married, they may meet the requirements of a spousal relationship, but not a de facto relationship. The applicant and the sponsor were married in Frankston on 3 December 2011. The delegate raised no concerns and there is no evidence before the Tribunal calling into question the validity of the marriage for the purposes of the Marriage Act. On the evidence, the parties were married to each other under a marriage that is valid for the purposes of the Act as required by s.5F(2)(a). Are the other requirements for a spousal relationship met? The delegate made, in essence, a “no evidence” decision, documenting in the decision his various contacts with the parties’ previous migration agent in an ultimately futile attempt to elicit supporting evidence of the parties’ relationship. At the Tribunal hearing, the sponsor expressed his frustration at the previous migration agent’s conduct of this matter, as a result of which the Tribunal gave an extension of time for the parties to provide additional evidence for the Tribunal’s consideration. Shortly after the hearing, the applicants appointed the current representative, who subsequently provided the Tribunal with a great deal of documentary evidence that was not available to the delegate. Financial aspects of the relationship

Decision

Reasons for decision

Given these findings, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 100 visa.DECISION The Tribunal remits the applications for Partner (Migrant) (Class BC) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 100 (Partner) visa:·cl.100.221(2)(b) of Schedule 2 to the Regulations.Di HubbleMemberATTACHMENT - Extract from Migration Regulations 19941.15ASpouse(1)For subsection 5F (3) of the Act, this regulation sets out arrangements for the purpose of determining whether 1 or more of the conditions in paragraphs 5F (2) (a), (b), (c) and (d) of the Act 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 married to 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

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