1902629 (Migration) - [2020] AATA 4730

1902629 (Migration) [2020] AATA 4730 (4 November 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1902629
MEMBER:Kira Raif
DATE:4 November 2020
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.

Statement made on 04 November 2020 at 3:56pm
CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Spouse) – application made more than 28 days after last substantive visa held – compelling reasons for not applying criterion – sponsor’s mental health – applicant’s relationship with step-child – fear of persecution in home country – previous protection visa application refused and refusal affirmed – credibility – relationship formed quickly after student visa expired and application for protection visa made – timing of sponsor’s treatment in relation to visa application – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 820.211, Schedule 3, Criterion 3001
CASES
Babicci v MIMIA (2005) 141 FCR 285
Chan v MIBP [2017] FCCA 2883
MZYPZ v MIAC [2012] FCA 478
Nazir v MIBP [2018] FCCA 861
Waensila v MIBP [2016] FCAFC 32
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 24 July 2017 on the basis of his relationship with his sponsor. The delegate refused to grant the visa on the basis that the applicant did not satisfy cl.820.211 because the delegate was not satisfied the applicant met Item 3001 and found that there were no compelling reasons to waive that requirement. The applicant sought review of the delegate’s decision.
The applicant appeared before the Tribunal on 4 November 2020 to give evidence and present arguments. The Tribunal also received oral evidence from 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 decision under review should be affirmed.
Relevant law
An applicant who is not the holder of a substantive visa at the time of application must meet certain criteria in Schedule 3 to the Regulations. With limited exceptions not relevant to this case, he or she must satisfy Schedule 3 criteria 3001, 3003, and 3004 unless the Minister is satisfied that there are compelling reasons for not applying those criteria: cl.820.211(2)(d).
It is not in dispute that the applicant in the present case did not have a substantive visa at the time of application. As the applicant did not enter Australia as the holder of a Subclass 995 visa or special purpose visa, the issue in…

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 1902629 (Migration)

Details

AGLC: 1902629 (Migration) [2020] AATA 4730
Case: [2020] AATA 4730
Decision Date: 4 November 2020

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered an application for a Partner (Temporary) (Class UK) visa, subclass 820 (Spouse). The applicant sought review of the delegate's decision to refuse the visa. The primary dispute concerned whether the applicant met the criterion requiring compelling reasons for not applying for the visa within 28 days of their last substantive visa expiring.

The Tribunal was required to determine if the applicant had established compelling reasons for the delay in lodging their visa application. This involved assessing the applicant's claims regarding the sponsor's mental health, the applicant's relationship with their step-child, and a fear of persecution in their home country. The Tribunal also had to consider the credibility of these claims, particularly in light of a previous protection visa application that had been refused and affirmed, and the timing of the relationship formation in relation to the expiry of the applicant's student visa and the subsequent protection visa application.

The Tribunal found that the applicant had not satisfied the criteria for the grant of the visa. While acknowledging the sponsor's mental health issues and the applicant's relationship with their step-child, the Tribunal was not satisfied that these factors, in conjunction with the fear of persecution, constituted compelling reasons for the delay in lodging the visa application. The Tribunal also had regard to the timing of the sponsor's treatment and the applicant's previous unsuccessful protection visa application, which raised credibility concerns. Consequently, the Tribunal affirmed the delegate's decision not to grant 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

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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.Kira RaifSenior Member

Ratio Decidendi

Legal Principle Established

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