1824867 (Migration) - [2023] AATA 1111

1824867 (Migration) [2023] AATA 1111 (21 April 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Abhi M MANGUKIYA (MARN: 2117675)
CASE NUMBER:  1824867
MEMBER:Justine Clarke
DATE:21 April 2023
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(1) of Schedule 2 to the Regulations
·cl 820.221(1)(a) of Schedule 2 to the Regulations

Statement made on 21 April 2023 at 2:46pm
CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – genuine and continuing relationship – parties have pooled their financial resources and shared day-to-day financial responsibilities during the relationship – applicant did not meet criterion 3001 in Schedule 3 – compelling reasons for not applying the Schedule 3 criteria – the parties were validly married – applicant and sponsor have a child together – marriage certificate and the birth certificate provided – applicant was not the holder of a substantive visa at the time of application – there is an Australian-citizen child of the relationship – decision under review remitted
LEGISLATION
Migration Act 1958, ss, 5F, 65, 359, 360
Migration Regulations 1994, rr 1.15; Schedule 2, cls 820.211, 820.221; Schedule 3, Criteria 3001, 3003, 3004
CASES
He v MIBP [2017] FCAFC 206
Jayasinghe v MIMA [2006] FCA 1700
Minister for Immigration and Ethnic Affairs v Pochi (1980) 4 ALD 139
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 on 14 August 2018 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).
On 27 June 2017, the applicant, who is a national of India, applied for the visa based on his relationship with his sponsor, [Ms A]. At the time of application, the applicant was aged [age] years and the sponsor was aged [age] years. At the time of this decision, the applicant is aged [age] years and the sponsor is aged [age] years.
At the time of application, 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. The primary criteria include cl 820.211.
The applicant provided the Tribunal with a copy of the delegate’s refusal decision (the primary decision). The delegate assessed the application pursuant to cl 820.211(2), finding it to be the only subclause relevant to the applicant’s circumstances. The delegate refused the visa on two bases.
First, the delegate found that the information and evidence that had been…

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 1824867 (Migration)

Details

AGLC: 1824867 (Migration) [2023] AATA 1111
Case: [2023] AATA 1111
Decision Date: 21 April 2023

CaseChat Overview and Summary

This matter concerned an application for a Partner (Temporary) (Class UK) visa, Subclass 820. The applicant sought review of a decision that affirmed the refusal of their visa application. The core of the dispute revolved around whether the applicant met the criteria for the visa, particularly concerning the genuineness and continuation of their relationship with the sponsor, and whether Schedule 3 criteria applied.

The Tribunal was required to determine two primary issues. Firstly, whether the applicant was the sponsor's spouse at the time of the application, considering the definition of "spouse" under section 5F of the Migration Act 1958 (Cth). Secondly, the Tribunal had to ascertain whether there were compelling reasons to waive the Schedule 3 criteria, given that the applicant did not hold a substantive visa at the time of application.

The Tribunal applied the principles established in cases such as *Jayasinghe v MIMA* [2006] FCA 1700, which permit the consideration of evidence of events subsequent to the visa application if it logically tends to show the existence or non-existence of relevant facts at the time of application. The Tribunal found that the applicant and sponsor were validly married, shared a mutual commitment to a shared life, had a genuine and continuing relationship, and lived together, thus satisfying the definition of a spousal relationship under section 5F(2) of the Act, both at the time of application and at the time of the decision. The Tribunal also found that the sponsorship requirements were met. However, because the applicant held a Bridging E visa, which is not a substantive visa, the Schedule 3 criteria became relevant. The Tribunal concluded that the applicant did not meet the Schedule 3 criteria, but that compelling reasons existed for not applying them, including the fact that the parties were validly married and had an Australian-citizen child together.

Consequently, the Tribunal remitted the matter for reconsideration, finding that the decision under review should not have been affirmed.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

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 primary criteria to be satisfied at the time of application are that the applicant is not the holder of a Subclass 771 (Transit) visa and that he meets one of the alternate requirements set out in cl 820.211(2), (5), (6), (7), (8) or (9): cl.820.211(1). With respect to the first requirement, the Tribunal has reviewed the applicant’s movement records which also detail his visa status at various times. The Tribunal is satisfied that the applicant was not the holder of a Subclass 771 (Transit) visa at the time of application. Therefore, the Tribunal finds that cl 820.211(1)(a) is met. With respect to the second requirement, the subclause relevant to the applicant’s circumstances is cl 820.211(2). In this review, there are two issues for determination. First, whether, at the time of application, the applicant was the sponsor’s spouse (for the purposes of cl 820.211(2)) and whether there are compelling reasons to waive the Schedule 3 criteria (for the purposes of cl 820.211(2)(d)(ii)). With respect to the first issue, the Tribunal notes Middleton J’s statement in Jayasinghe v MIMA [2006] FCA 1700 at [35], that:Evidence of events subsequent to the visa application is relevant if it ‘tends logically to show the existence or non-existence of facts relevant to the issue to be determined’: see Minister for Immigration and Ethnic Affairs v Pochi (1980) 4 ALD 139 at 160 per Deane J. The Tribunal must consider all relevant evidence, which may include evidence of events subsequent to the date of application insofar as it assists in the task of determining whether the appellant and the sponsor were in a marriage relationship at the time of the application. The question of whether particular evidence is relevant and the weight it is to be given is clearly a matter for the Tribunal. In deciding the first issue for determination in this matter, the Tribunal has also had regard to evidence of events subsequent to the date of the visa application. The Tribunal considers that, in this case, it is appropriate to also make findings about the time of decision criteria—cl 820.221.Whether the parties are in a spouse or de facto relationship Clauses 820.211(2)(a) and cl 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 claims to be the spouse of the sponsor who is an Australian-born citizen. The Department’s file contains a certified copy of the bio-pages of the sponsor’s Australian passport. The Tribunal is satisfied that the sponsor 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).

Decision

Reasons for decision

The Tribunal finds that the sponsor’s Centrelink records as at 27 June 2018 and the applicant’s response to the Department’s natural justice letter of 29 June 2018 are not the reason, or a part of the reason, to affirm the decision under review.Conclusion on spouse requirements As stated above, the Tribunal is satisfied that the parties are validly married, as required by s 5F(2)(a) of the Act. After considering all the evidence before it and for the reasons given with respect to the reg 1.15A(3) matters, the Tribunal is satisfied that, both at the time of application on 27 June 2017 and at the time of this decision, the applicant and the sponsor:·had and have a mutual commitment to a shared life as husband and wife to the exclusion of all others, as required by s 5F(2)(b) of the Act;·had and have a genuine and continuing relationship, as required by s 5F(2)(c) of the Act; and·lived and live together as required by s 5F(2)(d)(i) of the Act. Given these findings, the Tribunal is satisfied that, at the time the visa application was made and at the time of this decision, the parties were and are in a spousal relationship. However, the spouse requirement in cl 820.211(2)(a)(i) is not the only requirement in cl 820.211(2) which must be satisfied at the time of application. The sponsorship requirements in cl 820.211(2)(a)(ii) and cl 820.211(2)(c) must also be satisfied, and, if the applicant was not the holder of a substantive visa at the time of application, then the requirements in cl 820.211(2)(d) must also be satisfied. The Department’s file does not contain a copy of a completed Form 40SP—Sponsorship for a partner to migrate to Australia. As noted earlier, on 14 April 2021, the Tribunal wrote to the applicant, by way of the representative, to seek to remedy this deficiency. The Tribunal requested a copy of the completed sponsorship form (filled out now) and/or a statement from the sponsor where she refers to the sponsorship undertakings in reg 1.20(2)(c) such that the Tribunal is in a position to make findings about the sponsor’s intention at the time of application on 27 June 2017. The Tribunal has reviewed the completed Form 40SP which was submitted on 21 April 2023. Based on this documentary evidence, the Tribunal is satisfied that the applicant is sponsored by the sponsor and that cl 820.211(2)(c)(i) is met. There is no information before the Tribunal to suggest that the circumstances outlined in cl 820.211(2B) apply so the Tribunal finds that the sponsor is not prohibited by that subclause from being a sponsoring partner. Accordingly, the Tribunal finds that cl 820.211(2)(a)(ii) is met. The applicant’s movement records evidence him as having held a Bridging E visa upon applying for the Partner (Temporary) (Class UK) Subclass 820 visa on 27 June 2017. A bridging visa is specifically excluded from the definition of ‘substantive visa’ in s 5 of the Act. As the applicant did not hold a substantive visa at the time of application, the further requirements in cl 820.211(2)(d) must be met.Does the applicant meet Schedule 3 criteria, or are there compelling reasons for not applying those criteria?

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.