1820779 (Migration) - [2019] AATA 6779

1820779 (Migration) [2019] AATA 6779 (6 December 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1820779
MEMBER:Brendan Darcy
DATE:6 December 2019
PLACE OF DECISION: Melbourne
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) visa:
· cl.820.211(2) of Schedule 2 to the Regulations; and
· cl.820.221(2) of Schedule 2 to the Regulations.

Statement made on 06 December 2019 at 10:22am

CATCHWORDS
MIGRATION – refusal – Partner (Temporary) (Class UK) visa – Subclass 820 – the parties were not married to each other – parties are in a de facto spousal relationship – genuine and continuing relationship – substantial corroborative evidence provided – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5, 65, 375, 376
Migration Regulations 1994,rr 1.09, 1.15, 2.03,109, Schedule 2, cls 820.211, 820.221
CASES
Garcevic v MIAC [2012] FMCA 931
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 (the Act).
The applicant applied for the visa on 8 July 2014 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 (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)(a) because the delegate had multiple significant concerns that the relationship had been contrived for migration purposes.
The applicant appeared before the Tribunal on 19 November 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor claiming to be the applicant’s de facto spouse and a number of witnesses related to or known to the sponsor.
The applicant was represented in relation to the review by his 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 meets the definition of spouse or de facto partner under section 5F or 5CB of the Migration Act and whether the applicant meets subclause 820.211.
Background
The sponsor is an Australian citizen who was born [date] in Australia. On Form 40SP she claimed that she divorced her partner…

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 1820779 (Migration)

Details

AGLC: 1820779 (Migration) [2019] AATA 6779
Case: [2019] AATA 6779
Decision Date: 6 December 2019

CaseChat Overview and Summary

This matter concerned an application for a Partner (Temporary) (Class UK) visa, Subclass 820. The applicant, a Pakistani national, sought review of the Department's refusal to grant the visa. The sponsor was an Australian citizen. The core of the dispute revolved around whether the applicant and sponsor were in a genuine and continuing spousal or de facto relationship, and whether the applicant met the relevant criteria under subclause 820.211 of the Migration Regulations 1994.

The Tribunal was required to determine if the applicant met the definition of a spouse or de facto partner under sections 5F and 5CB of the Migration Act 1958, and specifically whether the applicant satisfied the requirements of subclause 820.211. This involved assessing the nature of the relationship between the applicant and the sponsor, considering various aspects including financial, household, social, and commitment elements as outlined in Regulation 1.15A.

The Tribunal concluded that the matter should be remitted for reconsideration. It found that the applicant met the criteria specified in cl.820.211(2) and cl.820.221(2) of Schedule 2 to the Regulations. The decision indicates that while the applicant and sponsor claimed to be married and provided a marriage certificate, the assessment of their relationship's genuineness and continuity, in light of all circumstances, led to this remittal. The Tribunal directed that the application be reconsidered with the applicant meeting these specific clauses.

Orders

Orders of the court

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Background

Background to the litigation

The issue in the present case is whether the applicant meets the definition of spouse or de facto partner under section 5F or 5CB of the Migration Act and whether the applicant meets subclause 820.211. Background The sponsor is an Australian citizen who was born [date] in Australia. On Form 40SP she claimed that she divorced her partner [in] December 1998. She claimed to have two children from her previous relationship. The applicant claimed on Form 47SP that he is a Pakistani national who was born in [Pakistan] on [date]. On Form 47SP, the applicant claimed that his mother and father and 8 siblings reside in Pakistan. He did not claim to have any children. He claimed that he was previously married to [Ms A] and the relationship ended in divorce [in] January 2013. The applicant arrived in Australia on a [temporary] visa [in] August 2009 and departed [in] August 2009. [In] September 2011 the applicant again travelled to Australia on a [temporary] visa. [In] November 2012 the applicant departed Australia on a Class WB Subclass 020 visa and returned on the same visa [in] December 2012. Since his last arrival the applicant has held two Class WA Subclass 010 visas, the first being valid from 22 May 2013 to 10 January 2014 and the second being valid 25 February 2014 to 18 June 2014. He also held two Class WC Subclass 030 visas, the first being valid from 9 July 2014 to 12 September 2014 and the second being valid from 12 September 2014 to the present time. According to the delegate’s decision, during his time in Australia the applicant has been an unlawful non-citizen for 21 days, On 16 December 2011 the applicant lodged a Class XA Subclass 866 visa. His application was refused by the Department of Immigration on 29 June 2012 and the Refugee Review Tribunal affirmed the decision on 11 April 2013. The applicant lodged an unsuccessful appeal regarding the Tribunal decision in the Federal Circuit Court. He then lodged a further appeal to the Full Federal Court, however withdrew his appeal in 2014. On 2 June 2014 the applicant applied for a Class UK/BS Subclass 820/801 visa, however the application was determined to be invalid. On 8 July 2014 the applicant applied again for a Class UK/BS Subclass 820/801 visa. The Department of Immigration refused to grant the visa on 26 March 2015. The applicant sought review by the Tribunal, differently constituted. On 16 June 2016 the Tribunal remitted the application with the direction that the applicant meets cl.820.211(2)(d) of Schedule 2 to the Regulations. On 13 July 2018 the Department refused the application a second time. According to the delegate’s decision, which accompanied the review application, the applicant advised the Department on his protection visa application that he was refused entry to [Country 1] in 2007 and he overstayed his visa in [Country 2] for a year and was deported consequently. The sponsor and the applicant claimed to be married [in] May 2014 which was registered on the relevant authority in the State of Victoria. A marriage certificate is on departmental file[1].[1] [File number deleted] f.70

Evidence

Evidence Before The Court

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Decision

Reasons for decision

The parties should be aware that this decision has been reached on only marginally in their favour. 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) visa:·cl.820.211(2) of Schedule 2 to the Regulations; and·cl.820.221(2) of Schedule 2 to the Regulations.Brendan DarcyMemberATTACHMENT - 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

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 meets the definition of spouse or de facto partner under section 5F or 5CB of the Migration Act and whether the applicant meets subclause 820.211. Background The sponsor is an Australian citizen who was born [date] in Australia. On Form 40SP she claimed that she divorced her partner [in] December 1998. She claimed to have two children from her previous relationship. The applicant claimed on Form 47SP that he is a Pakistani national who was born in [Pakistan] on [date]. On Form 47SP, the applicant claimed that his mother and father and 8 siblings reside in Pakistan. He did not claim to have any children. He claimed that he was previously married to [Ms A] and the relationship ended in divorce [in] January 2013. The applicant arrived in Australia on a [temporary] visa [in] August 2009 and departed [in] August 2009. [In] September 2011 the applicant again travelled to Australia on a [temporary] visa. [In] November 2012 the applicant departed Australia on a Class WB Subclass 020 visa and returned on the same visa [in] December 2012. Since his last arrival the applicant has held two Class WA Subclass 010 visas, the first being valid from 22 May 2013 to 10 January 2014 and the second being valid 25 February 2014 to 18 June 2014. He also held two Class WC Subclass 030 visas, the first being valid from 9 July 2014 to 12 September 2014 and the second being valid from 12 September 2014 to the present time. According to the delegate’s decision, during his time in Australia the applicant has been an unlawful non-citizen for 21 days, On 16 December 2011 the applicant lodged a Class XA Subclass 866 visa. His application was refused by the Department of Immigration on 29 June 2012 and the Refugee Review Tribunal affirmed the decision on 11 April 2013. The applicant lodged an unsuccessful appeal regarding the Tribunal decision in the Federal Circuit Court. He then lodged a further appeal to the Full Federal Court, however withdrew his appeal in 2014. On 2 June 2014 the applicant applied for a Class UK/BS Subclass 820/801 visa, however the application was determined to be invalid. On 8 July 2014 the applicant applied again for a Class UK/BS Subclass 820/801 visa. The Department of Immigration refused to grant the visa on 26 March 2015. The applicant sought review by the Tribunal, differently constituted. On 16 June 2016 the Tribunal remitted the application with the direction that the applicant meets cl.820.211(2)(d) of Schedule 2 to the Regulations. On 13 July 2018 the Department refused the application a second time. According to the delegate’s decision, which accompanied the review application, the applicant advised the Department on his protection visa application that he was refused entry to [Country 1] in 2007 and he overstayed his visa in [Country 2] for a year and was deported consequently.