1704788 (Migration) - [2018] AATA 2697

1704788 (Migration) [2018] AATA 2697 (7 June 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1704788
MEMBER:Fiona Meagher
DATE:7 June 2018
PLACE OF DECISION: Brisbane
DECISION:The Tribunal remits the application for a Partner (Temporary) (Class UK) visa, with the direction that the applicant meets the following criteria for a Subclass 820 (Partner (Temporary)) visa:
·cl.820.211 of Schedule 2 to the Regulations
·cl.820.221 of Schedule 2 to the Regulations
Statement made on 07 June 2018 at 4:17pm

CATCHWORDS
Migration – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner (Temporary)) – Whether a genuine spousal relationship exists – Joint finances – Joint household responsibilities – Relationship held out to others – Relationship viewed as continuous and ongoing – Significant emotional support – Genuine spousal relationship exists - Sponsorship limitation – Whether compelling circumstances exist – Significant hardship if visa application fails – Significant difficulty in relocating to applicant’s home country – Compelling reasons exist – Decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5F, 65
Migration Regulations 1994 (Cth), rr 1.15A(3), 1.20J, Schedule 2, cls 820.211, 820.221
CASES
Babicci v MIMIA [2004] FCA 1645
Babicci v MIMIA [2005] FCAFC 77
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 of a delegate of the Minister for Immigration on 7 March 2017 to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s.65 of the Migration Act 1958 (the Act).
The applicant applied for the visa on 13 April 2016 on the basis of her relationship with her sponsor. At that time, Class UK contained only one subclass: Subclass 820 (Partner (Temporary)). The criteria for the grant of this visa are set out in Part 820 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 visa applicant did not satisfy cl.820.221(4) because the sponsorship requirements were not met.
The applicant appeared before the Tribunal on 6 June 2018 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 Hungarian and English languages.
The applicant was represented in relation to the review by her 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 applicant and sponsor are in a genuine spousal relationship, and whether the sponsorship requirements are met. .
Whether the parties are in a spouse or de facto…

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 1704788 (Migration)

Details

AGLC: 1704788 (Migration) [2018] AATA 2697
Case: [2018] AATA 2697
Decision Date: 7 June 2018

CaseChat Overview and Summary

This matter concerned an application for a Partner (Temporary) (Class UK) visa, Subclass 820, made by an applicant claiming to be the spouse of an Australian citizen sponsor. The central dispute revolved around whether the parties were in a genuine spousal relationship and whether the sponsorship requirements were met. The decision was made by Fiona Meagher, a Member of the Tribunal.

The legal issues before the Tribunal were whether the applicant and sponsor were in a genuine spousal relationship, as defined by section 5F of the Migration Act 1958 (Cth) and Regulation 1.15A of the Migration Regulations 1994, and whether the sponsorship limitations, specifically the existence of compelling circumstances of significant hardship or difficulty if the visa application failed, were satisfied. The Tribunal was required to consider all circumstances of the relationship, including financial, household, social aspects, and the nature of the commitment to each other.

The Tribunal found that the parties were validly married in August 2016, satisfying the requirement of being married under a marriage valid for the purposes of the Act. While the sponsor had previously sponsored two spouses, leading to depression, and had no contact with his child, the Tribunal noted the parties met in 2014 and had been together since, with the applicant accompanying the sponsor to Australia. The Tribunal concluded that the matter should be remitted for reconsideration, directing that the applicant met the criteria for a Subclass 820 visa under clauses 820.211 and 820.221 of Schedule 2 to the Regulations.

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 matter should be remitted for reconsideration.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in the present case is whether the applicant and sponsor are in a genuine spousal relationship, and whether the sponsorship requirements are met. .Whether the parties are in a spouse or de facto relationship Clauses 820.211(2)(a) and 820.221 require that at the time the visa application was made, and at the time of this decision, the applicant is the spouse or de facto partner of an Australian citizen or Australian permanent resident or an eligible New Zealand citizen. In the present case the applicant claims to be the spouse of the sponsor who is an Australian citizen. ‘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 a married couple 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 about 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. On the evidence, an Australian marriage certificate dated [August] 2016 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? Both the applicant and sponsor were born in Hungary, the sponsor on [date] and the applicant on [date]. The sponsor migrated to Australia some years ago and has previously sponsored two spouses to Australia. Both of those marriages ended and the sponsor has been depressed due to feelings of disappointment and betrayal. He has one child with whom he has no contact. He has previously worked [in various occupations], although is currently unemployed. The applicant has previously been married, and was divorced in 2013. She has two children one of whom is currently in Australia with his wife who is on a student Visa, and one of whom still resides in Hungary and is studying. The parties met in Hungary in 2014, after the sponsor found the applicant’s picture on a dating website. The party spent some time together, and it transpired that they got on very well. After the first meeting, a week elapsed, and then the parties met up again (for a two day weekend), and have been together ever since. The sponsor invited the applicant to accompany him back to Australia, which she did.

Decision

Reasons for decision

Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 820 visa.DECISION The Tribunal remits the application for a Partner (Temporary) (Class UK) visa, with the direction that the applicant meets the following criteria for a Subclass 820 (Partner (Temporary)) visa:·cl.820.211 of Schedule 2 to the Regulations·cl.820.221 of Schedule 2 to the RegulationsFiona 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 remits the application for a Partner (Temporary) (Class UK) visa, with the direction that the applicant meets the following criteria for a Subclass 820 (Partner (Temporary)) visa:·cl.820.211 of Schedule 2 to the Regulations·cl.820.221 of Schedule 2 to the RegulationsFiona 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).