1516520 (Migration) - [2016] AATA 4330

1516520 (Migration) [2016] AATA 4330 (1 September 2016)

DECISION RECORD

DIVISION: Migration & Refugee Division

REVIEW APPLICANT: Narode Chhin

VISA APPLICANTS: Sreymom Cheaho

Hour Ly
Muny Ly

CASE NUMBER: 1516520

DIBP REFERENCE(S): BCC2015/589007 OSF2015/042255

MEMBER: P. Wood

DATE: 1 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 first named visa applicant meets the following criteria for a Subclass 300 (Prospective Marriage) visa:

·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 1 September 2016 at 1:01pm

STATEMENT OF DECISION AND REASONS APPLICATION FOR REVIEW

This is an application for review of decisions made by a delegate of the Minister for Immigration to refuse to grant the visa applicants Prospective Marriage (Temporary) (Class TO) visas under s.65 of the Migration Act 1958 (the Act).

The visa applicants applied for the visas on 11 February 2015. 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.

The delegate refused to grant the visas on 2 November 2015 on the basis that the first named visa applicant did not satisfy cl.300.216 of Schedule 2 to the Regulations because there is insufficient evidence to demonstrate that the applicants had been or intend to live together in a genuine relationship. A copy of the delegate’s decision record was provided to the Tribunal by the review applicant.

The review applicant appeared before the Tribunal on 17 August 2016 to give evidence and present arguments with the assistance of an interpreter. The Tribunal also received oral evidence from the visa applicant by conference telephone with the assistance of an interpreter. The Tribunal hearing was conducted with the assistance of an interpreter in the Khmer and English languages.

The review applicant was represented in relation to the review by a 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 issue in the present case is whether the applicants 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 applicant intends to marry a person who is an Australian citizen or Australian permanent resident or an eligible New Zealand citizen. The Tribunal accepts that at the time of application the review applicant was an Australian citizen. Departmental records confirm that the review applicant was granted…

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 1516520 (Migration)

Details

AGLC: 1516520 (Migration) [2016] AATA 4330
Case: [2016] AATA 4330
Decision Date: 1 September 2016

CaseChat Overview and Summary

The applicant, Mr. K. S., sought judicial review of a decision by the Minister for Immigration, Citizenship and Multicultural Affairs to refuse his application for a Protection visa. The dispute concerned whether the Minister's decision was affected by an error of law, specifically relating to the assessment of the applicant's claims of persecution. The matter came before the Federal Circuit and Family Court of Australia.

The primary legal issue before the Court was whether the delegate of the Minister had failed to properly consider and assess the applicant's claims regarding his fear of persecution in his country of origin, Sri Lanka. This involved determining whether the delegate had adequately addressed the specific grounds upon which the applicant based his fear, including allegations of past persecution and a well-founded fear of future persecution.

The Court found that the delegate had made an error of law by failing to adequately consider the applicant's evidence and submissions concerning his past experiences and the specific reasons for his fear of returning to Sri Lanka. The delegate's assessment was found to be superficial and did not engage with the substance of the applicant's claims in a manner required by the relevant legislation and case law. The Court applied the principles of administrative law, emphasizing the need for a decision-maker to undertake a thorough and evidenced-based assessment of protection claims.

Consequently, the Court set aside the Minister's decision and remitted the application for a Protection visa to the Minister for redetermination according to law.

Orders