1513109 (Migration) - [2016] AATA 4510

1513109 (Migration) [2016] AATA 4510 (13 October 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division
APPLICANT:  Mr Mohammed Awaiz Talha
CASE NUMBER:  1513109
DIBP REFERENCE(S):  BCC2011/341698
MEMBER:Lisa Lo Piccolo
DATE:13 October 2016
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Skilled (Provisional) (Class VC) visa.

Statement made on 13 October 2016 at 4:02pm

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 19 June 2012 to refuse to grant the applicant (Mr Talha) a Skilled (Provisional) (Class VC) visa under s.65 of the Migration Act 1958 (the Act).
Mr Tahla applied for the visa on 2 August 2011. At the time the visa application was lodged, Class VC contained two subclasses, 485 and 487. The completed application form indicates that the relevant subclass in this case is Subclass 485, the criteria for which are set out in Part 485 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 because Mr Tahla did not satisfy cl.485.213(b) of Schedule 2 to the Regulations because the delegate was not satisfied that the qualifications used to satisfy the study requirement are closely related to Mr Tahla’s nominated skilled occupation of welfare worker. A copy of the delegate’s decision was provided to the Tribunal by Mr Tahla.
On 29 October 2013, the Tribunal affirmed the delegate’s decision and held that it was not satisfied that Mr Talha’s Australian studies were closely related to his nominated occupation, with the consequence that it was not satisfied that he met cl 485.213(b). .
The applicant initiated judicial review proceedings. By an application filed on 25 November 2013, Mr Talha sought judicial review of the Tribunal’s decision in the Federal Circuit Court. On 23 September 2014, Judge Riley dismissed his application (see Talha v Minister for Immigration & Anor [2014] FCCA 2191).
Mr Talha appealed that decision to the Federal Court. On 25 August 2015 the Full Federal Court (comprising Griffiths, Mortimer and Beach JJ) ordered that the order of the Federal Circuit Court be set aside, the decision of the Tribunal dated 29 October 2013 be quashed and that the Tribunal reconsider the matter according to law.
The applicant appeared before the Tribunal on 13 April 2016 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Hindi and English languages.
The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

CONSIDERATION OF CLAIMS AND EVIDENCE

The primary criteria for the grant of a Subclass…

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: 1513109 (Migration) [2016] AATA 4510
Case: [2016] AATA 4510
Decision Date: 13 October 2016

CaseChat Overview and Summary

The Administrative Appeals Tribunal (AAT) considered the application of the applicant, a citizen of Vietnam, for a Partner (Temporary) (Class UK) visa. The applicant sought review of the delegate's decision to refuse to grant the visa. The primary issue before the Tribunal was whether the applicant and her sponsor had a genuine and continuing relationship as a de facto couple at the time of the visa application and at the time of the decision.

The Tribunal was required to determine whether the applicant and her sponsor met the definition of a de facto partner under the *Migration Regulations 1994* (Cth). This involved assessing whether they had a relationship as a couple living together on a genuine and continuing basis, and whether they had been in such a relationship for at least 12 months immediately prior to the application, or if they had registered their relationship under a prescribed law. The Tribunal also had to consider the specific criteria for the Partner (Temporary) (Class UK) visa, including the genuineness of the relationship and the applicant's eligibility for the visa.

In reaching its decision, the Tribunal considered various forms of evidence presented by the applicant and sponsor, including statutory declarations, joint bank accounts, utility bills, photographs, and evidence of social interaction. The Tribunal applied the principles established in case law regarding the assessment of de facto relationships, focusing on the four criteria outlined in Regulation 1.15A(2) of the *Migration Regulations 1994*: the financial aspects of the relationship, the nature of the household, the social aspects of the relationship, and the nature of the commitment to a shared life. The Tribunal found that the evidence did not sufficiently demonstrate that the applicant and sponsor were living together on a genuine and continuing basis, nor that they had been in such a relationship for the required period.

The Tribunal affirmed the delegate's decision to refuse the visa application.

Orders