1505940 (Migration) - [2018] AATA 331

1505940 (Migration) [2018] AATA 331 (21 February 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1505940
MEMBER:Fiona Meagher
DATE:21 February 2018
PLACE OF DECISION: Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicants Partner (Residence) (Class BS) visas.
Statement made on 21 February 2018 at 12:28pm

CATCHWORDS
Migration – Partner (Residence) (Class BS) visa – Subclass 801 (Spouse) – Claims of family violence by the visa applicant – Sponsor – Serious medical condition – Contrived relationship for immigration purposes – Sponsor controlled the sponsorship, finances and related matters – Never been a genuine spousal relationship
LEGISLATION
Migration Act 1958, ss 65, 359AA, 376
Migration Regulations 1994, r 1.15A Schedule 2 cl 801, 801.211, 801.221
CASES
Guven v Minister for Immigration & Anor [2006] FMCA 311
Nassouh v Minister for Immigration and Multicultural andIndigenous Affairs (2000) FCA 788
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.
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 8 April 2015 to refuse to grant the applicants Partner (Residence) (Class BS) visas under s.65 of the Migration Act 1958 (the Act).
The first named applicant (the applicant) applied for the visa on 20 April 2012 on the basis of her relationship with her sponsor. At that time, Class BS contained only one subclass: Subclass 801 (Partner). The criteria for the grant of this visa are set out in Part 801 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. Relevantly to this matter the primary criteria include cl.801.221.
The delegate refused to grant the visa on the basis that the applicant did not satisfy cl.801.221 because she was not satisfied that the applicant was the spouse or de facto partner of her sponsor. A copy of the delegate’s decision was provided with the application for review.
The applicants appeared before the Tribunal on 2 March 2017, 26 June 2017 and 11 September 2017 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 Vietnamese and English languages.
The applicants were represented in relation to the first two hearings of the review by their registered migration agent who attended those hearings. The applicants were not represented for the third hearing and no representative attended the Tribunal on that date.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issues in the present case are whether the applicant and sponsor are in a genuine spousal…

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 1505940 (Migration)

Details

AGLC: 1505940 (Migration) [2018] AATA 331
Case: [2018] AATA 331
Decision Date: 21 February 2018

CaseChat Overview and Summary

This matter concerned an appeal by a visa applicant and her daughter against a decision to refuse their Partner (Residence) (Class BS) visa. The primary applicant, a citizen of Vietnam, had been granted a subclass 820 visa in August 2012. The sponsor was an Australian citizen. The core of the dispute revolved around whether the applicant and sponsor were in a genuine and continuing spousal relationship, and whether the applicant met Public Interest Criteria (PIC 4020) as required for the subclass 801 visa. Claims of family violence were also raised by the applicant.

The Tribunal was required to determine two primary legal issues: first, whether the applicant and sponsor were in a genuine and continuing spousal relationship at any point in time, and second, if so, whether the applicant had met the requirements for the grant of the visa, including any claims of family violence. The Tribunal noted that case law mandates an assessment of the genuineness of the relationship before considering claims of family violence.

The Tribunal affirmed the delegate's decision, finding that the applicant and sponsor were not in a genuine spousal relationship. Applying the principles outlined in *Nassouh v Minister for Immigration and Multicultural and Indigenous Affairs* (2000) FCA 788 and Regulation 1.15A of the *Migration Regulations 1994*, the Tribunal considered various aspects of the relationship, including financial, household, social, and commitment factors. The Tribunal concluded that the evidence did not satisfy the criteria for a genuine and continuing spousal relationship. Consequently, the Tribunal affirmed the decision not to grant the Partner (Residence) (Class BS) visas.

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 decision under review should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCE The issues in the present case are whether the applicant and sponsor are in a genuine spousal relationship, and whether the primary applicant meets Public Interest Criteria (PIC 4020) as required by cl.801 for the granting of the Visa.History of hearings The primary applicant in this case is a [age]-year-old from Vietnam. The secondary applicant is the daughter of the first applicant, currently [age] years old. The sponsor is an [age]-year-old citizen of Australia. The applicant was granted a subclass 820 visa on 9 August 2012. According to the delegate’s decision the department requested documentation in relation to the applicants’ subclass 801 visa via their authorised migration agent on 17 February 2014. He responded to that request by providing documents on 14 May 2014 and 16 June 2014. In February 2015 the applicants appointed a new migration agent, who advised the department that the primary applicant’s relationship with the sponsor had ceased and that he would be submitting claims of family violence. The delegate’s decision was made on 8 April 2015 and found that the applicant was not the spouse or de facto partner of the sponsor. Although there was material before the delegate claiming the applicant had been subject to family violence, the delegate did not deal with that issue as she considered the threshold issue of whether the parties were in a genuine relationship was not satisfied. Case law has indicated that prior to assessing whether family violence has occurred the Tribunal is required to make findings as to whether or not the applicant and her sponsor were ever in a genuine and continuing spousal relationship. The decision of Guven v Minister for Immigration & Anor [2006] FMCA 311 (24 March 2006) reviewed a decision of the Migration Review Tribunal (MRT) handed down on 6 October 2005 which affirmed a decision whereby the applicant claimed family violence. The MRT found that the visa applicant was not entitled to the grant of the Partner (Migrant) (class BC) visa after applying the test outlined in Nassouh v Minister for Immigration and Multicultural andIndigenous Affairs (2000) FCA 788. This was because the MRT, as it was then constituted, was not satisfied that there was any point in time at which the relationship between the visa applicant and the sponsor could properly be regarded a spousal within the meaning of Regulation 1.15A of the Migration Regulations. The issues of both relationship and family violence were before the Tribunal on 2 March 2017 (the first hearing). However, at the commencement of the hearing the primary applicant, who was extremely distressed, stated that her husband had been admitted to hospital with [a serious medical condition]and he was close to death. She [wanted] to go to the hospital to be with him. The Tribunal decided that given the extreme distress of the primary applicant, it would adjourn the hearing to a date to be fixed. The applicant resisted that, claiming that she had lived with the sponsor for three years and she was entitled to her Visa. The Tribunal explained that it had to be satisfied of a number of matters before it could remit the matter to the department, that that would involve an exhaustive and lengthy examination of the circumstances of the parties, and that given the primary applicant’s severe distress and desire to be with her husband, it would adjourn the hearing to a date to be fixed.

Decision

Reasons for decision

For the reasons above, the applicants do not satisfy the criteria for the grant of the visas.DECISION The Tribunal affirms the decision not to grant the applicants Partner (Residence) (Class BS) visas.Fiona MeagherMemberATTACHMENT - Extract from Migration Regulations 19941.15A Spouse(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

The Tribunal affirms the decision not to grant the applicants Partner (Residence) (Class BS) visas.Fiona MeagherMemberATTACHMENT - Extract from Migration Regulations 19941.15A Spouse(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).