1817836 (Migration) - [2022] AATA 2264

1817836 (Migration) [2022] AATA 2264 (3 June 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1817836

MEMBER:Margie Bourke
DATE:3 June 2022
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.

Statement made on 03 June 2022 at 7:07pm

CATCHWORDS
MIGRATION – (Residence) (Class BS) visa – Subclass 820 (Spouse) – genuine and ongoing relationship – applicant’s partner did not undertake the role of sponsor – partner’s employment records – residential history – limited time of application evidence – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 65, 359
Migration Regulations 1994, rr 1.03, 1.09, 1.15; Schedule 2, cls 820.211, 820.221
CASES
Bretag v MILGEA [1991] FCA 755
He v MIBP [2017] FCAFC 206
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 Home Affairs to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 12 April 2016 on the basis of his relationship with his sponsor. At that time, Class UK contained only one subclass: Subclass 820 (Partner). The criteria for the grant of this visa are set out in Part 820 of Schedule 2 to the Migration Regulations 1994 (Cth) (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.820.211(2) because the applicant had not provided sufficient evidence to demonstrate he was the spouse or de facto partner of the sponsor within the meaning of s.5F or s.5CB of the Act.
The Tribunal had regard to its objectives to provide a mechanism for review that is fair, just, informal, economical and quick. The Tribunal had regard to the circumstances of the applicant and the nature of the review. The Tribunal considered that the hearing would not involve a large amount of paperwork to be put to the applicant during the course of the hearing by the Tribunal. The availability of in-person hearings was restricted due to the ongoing pandemic. The Tribunal considered that the conduct of the hearing by video would allow the applicant a fair opportunity to give evidence and present arguments, and would allow the Tribunal to conduct a fair and effective hearing, and enable the Tribunal to properly assess the evidence before it. In all the circumstances, the Tribunal considered that this was an appropriate matter in which the hearing could be conducted by way of video.
The applicant appeared before the Tribunal…

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 1817836 (Migration)

Details

AGLC: 1817836 (Migration) [2022] AATA 2264
Case: [2022] AATA 2264
Decision Date: 3 June 2022

CaseChat Overview and Summary

This matter concerned an application for review of a decision not to grant a Spouse (Class BS) visa, subclass 820. The applicant claimed to be the spouse of an Australian citizen, referred to as Ms A. The dispute centred on whether the applicant met the criteria for the visa, particularly concerning the genuineness and ongoing nature of the relationship and the sponsorship. The decision was made by a Member of the Tribunal.

The Tribunal was required to determine whether the applicant was the spouse or de facto partner of an Australian citizen at the time of the visa application and at the time of the decision, as required by clauses 820.211(2)(a) and 820.221 of the Migration Regulations. Additionally, the Tribunal had to consider whether Ms A, the claimed sponsor, had undertaken the role of sponsor for the applicant, as stipulated by clause 820.211(2)(c).

The Tribunal affirmed the decision not to grant the visa. It found that while the Department had assessed Ms A as an Australian citizen, the applicant had failed to provide any identification documents for Ms A to the Department or the Tribunal. Crucially, the applicant did not respond to the Department's request for further information, which included a marriage certificate, relationship history statements, and the sponsorship form (Form 40SP). The only document provided to the Department was the online visa application form. Although the applicant later provided some information to the Tribunal in response to a request, this was insufficient to satisfy the visa criteria. The Tribunal concluded that the applicant had not met the requirements for the visa.

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 EVIDENCESPOUSE/DE FACTO (cl 820.211(2)(a), cl 820.221)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. The applicant has not provided any identification documents to the Department or to the Tribunal in relation to the person named as the sponsor, the spouse or de facto partner of the applicant. The Tribunal has no documents on which to make any finding as to whether the claimed sponsor is an Australian citizen or Australian permanent resident or an eligible New Zealand citizen. However, the Tribunal notes that in the Department’s decision record the person named as the sponsor is recorded with her date of birth, and her immigration status is recorded as Australian citizen. The Tribunal accepts the Department’s assessment that the person claimed as the sponsor is an Australian citizen. In the present case the applicant claims to be the spouse of the sponsor who is an Australian citizen.Documents provided to the Department and to the Tribunal by the Applicant The applicant provided an application lodged online on 12 April 2016 to the Department. The Department wrote to the applicant with a request for further information, and specified that the applicant provide the following information and documents:- personal particulars for character assessment (form 80), marriage certificate, relationship history statements, sponsorship form (form 40SP) and evidence of the relationship with the applicant’s spouse or de facto partner. The Department records in the decision record dated 28 May 2018 (a copy of which was provided to the Tribunal by the applicant), and the Department file also discloses, that there was no response received from the applicant to the invitation from the Department to provide further information. Accordingly, the Tribunal is satisfied that the only information provided to the Department by the applicant was the application form for the visa which was lodged online. The Tribunal received the application for review which was lodged on 19 June 2018. There is correspondence on the Tribunal file between the Tribunal and the applicant and his representative in relation to procedural matters. On 7 October 2021, the Tribunal sent a letter to the applicant and invited the applicant to provide information in relation to the circumstances of his relationship in accordance with r.1.09A or r.1.15A. The applicant provided information to the Tribunal in response to this request. The issue of whether the person claimed to be the sponsor sponsored the applicant for the purpose of cl.820.211(2)(c) is also a matter to be determined by the Tribunal in this decision. For this reason I will refer to the person claimed to be the sponsor by her name, [Ms A], in this decision record.

Decision

Reasons for decision

For the reasons above, the applicant does not satisfy the criteria for the grant of the visa.DECISION The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.Margie BourkeMember

Ratio Decidendi

Legal Principle Established

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