1901805 (Migration) - [2021] AATA 1139

1901805 (Migration) [2021] AATA 1139 (19 February 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division
CASE NUMBER:1901805

MEMBER:Paul Maishman
DATE AND TIME OF
ORAL DECISION AND REASONS:         19 February 2021 at 2:00 pm (WA time)
DATE OF WRITTEN RECORD:                9 March 2021
PLACE OF DECISION:  Perth
DECISION:The Tribunal remits the application for a Partner (Temporary) (Class UK) visa, with the direction that the applicant meets criteria
· cl 820.211(2) of Schedule 2 to the Regulations.
·     Regulation 2.03A
· cl 820.221(1) of Schedule 2 to the Regulations
for a Subclass 820 (Partner) visa.

Statement made on 09 March 2021 at 9:59am

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – partner of an Australian citizen – compelling reasons to waive Schedule 3 criteria – prohibited from being a sponsoring partner – child of the relationship – pooled financial resources – child’s medical conditions – decision under review remitted

LEGISLATION
Migration Act 1958, ss 5CB, 5F, 65
Migration Regulations 1994, rr 1.09A, 1.15A, 2.03A; Schedule 2, cls 820.211, 820.221; Schedule 3, Criterion 3001

CASES
Bretag v MILGEA [1991] FCA 755

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.

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 14 January 2019 to refuse to grant the visa applicant a Partner (Temporary) (Class UK) Subclass 820 visa under the Migration Act 1958 (the Act).

2. At the hearing on 19 February 2021 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

STATEMENT OF DECISION AND REASONS

3. The Tribunal remits the application for a partner temporary class UK visa, the direction that the applicant meets criteria in clause 820.211(2) of schedule 2 to the regulations, regulation 2.03A, and clause 820.221(1) of schedule 2 to the regulations, for a subclass 820 partner visa.

4. [The applicant] applied for the visa on 12 October 2017 on the basis of his relationship with his sponsor, [named]. At the time, class UK contained only one subclass, an 820 partner visa. The criteria for the grant of the visa is set out in part 820 of schedule 2 to the Migration Regulations. The primary criteria must be satisfied by [the applicant] as the only applicant.

5. The delegate refused to grant the visa on the basis that [the applicant] did not satisfy clause 820.211(2)(a) or (d) because the delegate was not satisfied [the applicant] was the spouse or de facto partner of his sponsor or that [the applicant] satisfied the schedule 3 criteria.

6. [The applicant] appeared before the Tribunal today and gave evidence and presented arguments. The Tribunal also heard oral evidence from his sponsor, [named]. [The applicant] was represented in relation to the review by his registered migration agent.

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.

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Details

AGLC: 1901805 (Migration) [2021] AATA 1139
Case: [2021] AATA 1139
Decision Date: 19 February 2021

CaseChat Overview and Summary

The applicant sought judicial review of a decision by the Minister to refuse to grant a Partner (Temporary) (Class UK) visa, subclass 820. The applicant, who was the partner of an Australian citizen, had applied for the visa but was found not to meet Schedule 3 criteria. The applicant contended that there were compelling reasons to waive these criteria, particularly in light of the child of the relationship, who had significant medical conditions, and the pooled financial resources of the couple.

The primary legal issue before the court was whether the Minister had erred in law in refusing to grant a waiver of Schedule 3 criteria under Regulation 2.12(1)(c) of the Migration Regulations 1994 (Cth). This required the court to consider whether the circumstances presented by the applicant constituted "compelling reasons" for the waiver, taking into account the best interests of the child and the financial circumstances of the applicant and her partner.

The court found that the delegate had failed to adequately consider the impact of the child's medical conditions and the pooled financial resources when assessing the compelling reasons for a waiver. The delegate's reasoning was found to be superficial and did not engage with the specific evidence provided by the applicant regarding these matters. Consequently, the court determined that the decision under review was affected by jurisdictional error. The matter was remitted to the Minister for redetermination according to law.

Orders