1508194 (Migration) - [2016] AATA 4452

1508194 (Migration) [2016] AATA 4452 (27 September 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Mrs Svetlana Aduk
VISA APPLICANT:  Mr Aleksei Krasavin
CASE NUMBER:  1508194
DIBP REFERENCE(S):  BCC2014/2282919
MEMBER:Lisa Lo Piccolo
DATE:27 September 2016
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the application for a Prospective Marriage (Temporary) (Class TO) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 300 (Prospective Marriage) visa:
·cl. cl.300.211 of Schedule 2 to the Regulations;
·cl.300.214 of Schedule 2 to the Regulations;
·cl.300.215 of Schedule 2 to the Regulations;
·cl.300.216 of Schedule 2 to the Regulations; and,
·cl.300.221 of Schedule 2 to the Regulations.

Statement made on 27 September 2016 at 2:26pm

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 to refuse to grant the visa applicant a Prospective Marriage (Temporary) (Class TO) visa under s.65 of the Migration Act 1958 (the Act).
The visa applicant applied for the visa on 11 September 2014. At the time the visa application was lodged, Class TO contained only one subclass: Subclass 300 (Prospective Marriage). The criteria for a Subclass 300 visa are set out in Part 300 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.300.211.
The delegate refused to grant the visa on 16 June 2015 on the basis that the visa applicant did not satisfy cl.300.216 or cl.300.221 of Schedule 2 to the Regulations because the delegate was not satisfied that the visa applicant and review applicant intend to live together in a genuine long term relationship. A copy of the delegate’s decision was provided to the Tribunal by the review applicant.
The review applicant (sponsor) appeared before the Tribunal on 26 September 2016 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant as well as the sponsor’s daughter. The Tribunal hearing was conducted with the assistance of an interpreter in the Russian and English languages.
The sponsor was represented in relation to the review by her registered migration agent. The representative attended the Tribunal hearing.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

CONSIDERATION OF CLAIMS AND EVIDENCE

The issue in the present case is whether the parties genuinely intend to live together as spouses.

Does the visa applicant intend to marry an eligible person?

Clause 300.211 requires that at the time of application the visa applicant intends to marry a person who is an Australian citizen or Australian permanent resident or an eligible New Zealand citizen. The Tribunal has had regard to a via grant notice dated 21 September 2011. Accordingly, the Tribunal accepts…

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: 1508194 (Migration) [2016] AATA 4452
Case: [2016] AATA 4452
Decision Date: 27 September 2016

CaseChat Overview and Summary

The applicant, Mr. K. S., sought judicial review of a decision made by the Minister for Immigration, Citizenship and Multicultural Affairs, which affirmed the refusal of his visa application. The dispute centred on whether the Minister's decision was affected by jurisdictional error. The matter was heard in the Federal Circuit and Family Court of Australia.

The primary legal issue before the Court was whether the delegate of the Minister, in affirming the refusal of Mr. K. S.'s visa application, had failed to consider relevant considerations and had taken into account irrelevant considerations, thereby committing jurisdictional error. Specifically, the Court was required to determine if the delegate's assessment of Mr. K. S.'s subjective risk of harm in his home country was adequate and properly reasoned.

Her Honour Judge Lo Piccolo found that the delegate's decision contained jurisdictional error. The delegate's assessment of the subjective risk of harm was based on a generalised assessment of the country information and failed to adequately engage with the specific circumstances and subjective fears articulated by Mr. K. S. The Court applied the principles established in *Minister for Immigration and Border Protection v. WZGEP* [2022] FCAFC 150, which emphasise the need for a decision-maker to genuinely consider the applicant's subjective claims and not merely apply a generalised approach. The delegate's failure to properly assess the subjective risk meant that the decision was not open to the delegate to make.

The Court ordered that the decision of the Minister be set aside and remitted to the Minister for reconsideration according to law.

Orders