1906022 (Migration) - [2025] ARTA 914

1906022 (MIGRATION) [2025] ARTA 914 (25 FEBRUARY 2025)
DECISION AND
REASONS FOR DECISION
Respondent:  Minister for Immigration and Multicultural Affairs
Tribunal Number:  1906022

Tribunal:General Member G Bartley
Place:Sydney
Date: 25 February 2025

Decision:The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.

Statement made on 25 February 2025 at 1:03pm

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – genuine and continuing relationship before relationship ceased – validly married – financial, household and social aspects of relationship and nature of commitment – limited, contradictory and unreliable evidence not consistent with genuine relationship – sponsorship withdrawn and retracted twice – application made more than 28 days after last substantive visa held – compelling reasons for not applying criteria – visa history, including unsuccessful protection visa application and period as unlawful non-citizen – judicially-determined claim of family violence – final ADVO issued – psychologist’s report obtained to support claim – new relationship – sole breadwinner and father figure to partner’s children, including one with developmental disorders – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5F(2), 65, 359A, 375A
Migration Regulations 1994 (Cth), r 1.15A(3), Schedule 2, cls 820.211(2)(a), (d)(ii), 820.221(d)(ii), (3), Schedule 3, criterion 3001
CASES
Babicci v MIMIA (2005) 141 FCR 285
He v MIBP [2017] FCAFC 206
MZYPZ v MIAC [2012] FCA 478
Plaintiff M64/2015 v MIBP [2015] HCA 50
Waensila v MIBP [2016] FCAFC 32
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to an order under section 70 of the Administrative Review Tribunal Act 2024 and replaced with generic information.
STATEMENT OF REASONS

On 14 October 2024, the Administrative Appeals Tribunal (AAT) became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024, proceedings in the AAT that were not finalised before 14 October 2024 are to be continued and finalised by the Tribunal. Anything done in relation to the proceeding before 14 October 2024 is taken to have been done by the Tribunal.
ISSUES
The first issue in this review is whether [the applicant] was in a genuine and continuing spouse relationship with [his sponsor] as defined in s 5F of the Migration Act 1958 (Cth) (the Act) prior to the relationship ceasing. The second issue is whether the applicant meets the requirements in Schedule 3 of the Migration Regulations 1994 (Cth) (the Regulations), or there are compelling reasons for not applying those criteria. The third issue is whether the applicant has experienced family violence committed by the sponsor.
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s 65 of the Act.
The applicant applied for the visa on 29 June 2017 on the basis of his relationship with the sponsor. At that time,…

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 1906022 (Migration)

Details

AGLC: 1906022 (Migration) [2025] ARTA 914
Case: [2025] ARTA 914
Decision Date: 25 February 2025

CaseChat Overview and Summary

The applicant, a citizen of India, sought a Partner (Temporary) (Class UK) visa, subclass 820, from the Australian Government. The sponsor, an Australian citizen, withdrew her sponsorship and retracted it twice, and the Tribunal had to decide whether the relationship between the applicant and the sponsor was genuine and continuing before it ceased. The Tribunal needed to consider whether the relationship had financial, household, and social aspects and the nature of the commitment between the parties. The Tribunal also had to determine if the application was made within 28 days of the last substantive visa held and if there were compelling reasons for granting the visa despite the applicant’s history as an unlawful non-citizen, including an unsuccessful protection visa application.

The Tribunal examined the evidence provided, which included limited and contradictory details. The evidence did not convincingly support the claim of a genuine relationship, as the sponsor’s movement records indicated she was offshore on the date of a car accident the applicant claimed they were involved in together. The Tribunal found the evidence unreliable and inconsistent with the claim of a genuine relationship. Furthermore, the Tribunal did not consider the information regarding the marriage celebrant relevant to the issues at hand. Given the lack of substantial evidence supporting the genuineness of the relationship and the applicant’s history as an unlawful non-citizen, the Tribunal affirmed the decision not to grant the visa.

The Tribunal's final orders affirm the decision not to grant the applicant a Partner (Temporary) (Class UK) visa. The applicant does not meet the essential criteria for the visa, and the application is dismissed.

Orders

Orders of the court

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Background

Background to the litigation

For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.BACKGROUND The applicant is a [Age]-year-old citizen of India. He has not declared any previous marriages or de facto relationships. The applicant’s father is deceased. His mother and younger brother live in India. The applicant is employed on a full-time basis as [an occupation]. The applicant first travelled to Australia in March 2010 after being granted a Student visa (Subclass TU 572). He was granted a further Student visa and then applied for a Protection visa. The applicant’s Protection visa application was refused by the Department and the decision was subsequently affirmed by the Refugee Review Tribunal. The applicant’s Bridging visa ceased on 11 May 2016, and he remained in Australia as an unlawful non-citizen until he lodged the current application on 29 June 2017 and was granted a Bridging visa. The sponsor is a [Age]-year-old Australian citizen by grant. She was born in [Country 1] and migrated to Australia in August 2019 after being granted a Partner (Provisional) visa (Subclass 309), sponsored by her first husband. The sponsor’s relationship with her first husband ended in divorce in 2012, and there were no children from that relationship. The sponsor’s parents and three of her siblings live in [Country 1]. One brother lives in [Country 2]. The applicant and the sponsor (the parties) stated in the application that they first met in December 2016 at a cafe in the Sydney CBD. They became engaged in April 2017 and were married at [Suburb 1] [in] June 2017. CONSIDERATION OF CLAIMS AND EVIDENCE Prior to the first hearing, the applicant’s representative submitted additional documents to the Tribunal to support the application, including but not limited to the following: a chronology of relevant events by the applicant’s representative, photographs, documents regarding a car accident on 1 November 2019, correspondence sent to the parties at mutual addresses, a life insurance policy in the parties’ joint names, joint bank account statements, an undated psychology report regarding the applicant by [Mrs C], various documents regarding the parties’ contact with NSW Police, a Final Apprehended Domestic Violence Order protecting the applicant from the sponsor, dated [May] 2021, a Court Order Notice, dated [May] 2021, a statutory declaration by the applicant, and a witness statutory declaration by [Mr B]. In making my decision, I have had regard to the documents in the Department and Tribunal files and the oral evidence at both hearings. As discussed at the hearings, there is a certificate issued under s 375A of the Act on the Department file relating to the parties’ marriage celebrant and contact between the sponsor and the Department. The certificate is incomplete and unsigned. I agreed with the submissions from the applicant’s representative that the certificate is invalid. Consequently, I provided a copy of the material to the applicant’s representative at the second hearing and invited her to respond. The applicant’s representative submitted that the information provided by the sponsor to the Department supports the applicant’s case that the parties were living together as spouses in a genuine and continuing relationship prior to the breakdown of the relationship. As discussed at the hearing, I did not place any weight on the concerns outlined in the Department file regarding the parties’ marriage celebrant as I did not consider that information to be relevant to the issues to be determined. There was limited detail provided, including whether or not there was an investigation into the marriage celebrant and, if so, what the outcome was.

Evidence

Evidence Before The Court

The applicant and the sponsor (the parties) stated in the application that they first met in December 2016 at a cafe in the Sydney CBD. They became engaged in April 2017 and were married at [Suburb 1] [in] June 2017. CONSIDERATION OF CLAIMS AND EVIDENCE Prior to the first hearing, the applicant’s representative submitted additional documents to the Tribunal to support the application, including but not limited to the following: a chronology of relevant events by the applicant’s representative, photographs, documents regarding a car accident on 1 November 2019, correspondence sent to the parties at mutual addresses, a life insurance policy in the parties’ joint names, joint bank account statements, an undated psychology report regarding the applicant by [Mrs C], various documents regarding the parties’ contact with NSW Police, a Final Apprehended Domestic Violence Order protecting the applicant from the sponsor, dated [May] 2021, a Court Order Notice, dated [May] 2021, a statutory declaration by the applicant, and a witness statutory declaration by [Mr B]. In making my decision, I have had regard to the documents in the Department and Tribunal files and the oral evidence at both hearings. As discussed at the hearings, there is a certificate issued under s 375A of the Act on the Department file relating to the parties’ marriage celebrant and contact between the sponsor and the Department. The certificate is incomplete and unsigned. I agreed with the submissions from the applicant’s representative that the certificate is invalid. Consequently, I provided a copy of the material to the applicant’s representative at the second hearing and invited her to respond. The applicant’s representative submitted that the information provided by the sponsor to the Department supports the applicant’s case that the parties were living together as spouses in a genuine and continuing relationship prior to the breakdown of the relationship. As discussed at the hearing, I did not place any weight on the concerns outlined in the Department file regarding the parties’ marriage celebrant as I did not consider that information to be relevant to the issues to be determined. There was limited detail provided, including whether or not there was an investigation into the marriage celebrant and, if so, what the outcome was. The applicant gave oral evidence at both hearings that he was involved in a car accident on 1 November 2019 and that the sponsor was present in the car when he had the accident. The applicant stated during the second hearing that the parties were going out to lunch, and he described the sponsor’s reaction in some detail, including that she started crying. In the chronology of relevant events submitted by the applicant’s representative to the Tribunal, the representative said that on 1 November 2019 the applicant was “…involved in a car accident in [Suburb 2] while [the sponsor] [was] present…” However, the sponsor’s movement records show that she was offshore on the date of the car accident. This information was put to the applicant at the second hearing in accordance with s 359A of the Act. At the request of the applicant’s representative, the Tribunal adjourned the proceedings briefly to enable the applicant to discuss the information and consider whether he wished to respond orally or in writing. After the adjournment, the applicant’s representative submitted that the applicant wished to provide an oral response at the hearing. The applicant said his evidence about the sponsor’s involvement in the car accident was due to his poor memory and the passage of time. He said there was a second incident involving a scratch on their car and he may have confused the two events. The applicant apologised for the error.

Decision

Reasons for decision

As the applicant does not meet the essential criteria for the visa, the Tribunal affirms the decision under review.DECISION The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.Hearing dates: 6 August 2024 and 19 February 2025 Representatives for the Applicant: Ms Nuha Bayad and Mr Nicholas PoynderATTACHMENT - 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).Schedule 33001(1)The application is validly made within 28 days after the relevant day (within the meaning of subclause (2)).(2)For the purposes of subclause (1) and of clause 3002, the relevant day, in relation to an applicant, is:(a)if the applicant held an entry permit that was valid up to and including 31 August 1994 but has not subsequently been the holder of a substantive visa — 1 September 1994; or(b)if the applicant became an illegal entrant before 1 September 1994 (whether or not clause 6002 in Schedule 6 of the Migration (1993) Regulations applied or section 195 of the Act applies) and has not, at any time on or after 1 September 1994, been the holder of a substantive visa — the day when the applicant last became an illegal entrant; or(c)if the applicant:(i) ceased to hold a substantive or criminal justice visa on or after 1 September 1994; or(ii) entered Australia unlawfully on or after 1 September 1994;whichever is the later of:(iii) the last day when the applicant held a substantive or criminal justice visa; or(iv) the day when the applicant last entered Australia unlawfully; or(d)if the last substantive visa held by the applicant was cancelled, and the Tribunal has made a decision to set aside and substitute the cancellation decision or the Minister's decision not to revoke the cancellation — the later of:(i) the day when that last substantive visa ceased to be in effect; and(ii) the day when the applicant is taken, under sections 368C, 368D and 379C of the Act, to have been notified of the Tribunal's decision.3003If:(a)the applicant has not, on or after 1 September 1994, been the holder of a substantive visa; and(b)on 31 August 1994, the applicant was either:(i) an illegal entrant; or(ii) the holder of an entry permit that was not valid beyond 31 August 1994;the Minister is satisfied that:(c)the applicant last became an illegal entrant, or, in the case of a person referred to in subparagraph (b)(ii), last became a person in Australia without a substantive visa, because of factors beyond the applicant's control; and(d)there are compelling reasons for granting the visa; and(e)the applicant has complied substantially with the conditions that apply or applied to:(i) the last of any entry permits held by the applicant (other than a condition of which the applicant was in breach solely because of the expiry of the entry permit); and(ii) any subsequent bridging visa; and(f)the applicant would have been entitled to be granted an entry permit equivalent to a visa of the class applied for if the applicant had applied for the entry permit immediately before last becoming an illegal entrant or, in the case of a person referred to in subparagraph (b)(ii), if the applicant had applied for the entry permit on 31 August 1994; and(g)the applicant intends to comply with any conditions subject to which the visa is granted; and(h)the last entry permit (if any) held by the applicant was not granted subject to a condition that the holder would not, after entering Australia, be entitled to be granted an entry permit, or a further entry permit, while the holder remained in Australia.3004If the applicant:(a)ceased to hold a substantive or criminal justice visa on or after 1 September 1994; or(b)entered Australia unlawfully on or after 1 September 1994 and has not subsequently been granted a substantive visa;the Minister is satisfied that:(c)the applicant is not the holder of a substantive visa because of factors beyond the applicant's control; and(d)there are compelling reasons for granting the visa; and(e)the applicant has complied substantially with:(i) the conditions that apply or applied to:(A)the last of any entry permits held by the applicant (other than a condition of which the applicant was in breach solely because of the expiry of the entry permit); and(B)any subsequent bridging visa; or(ii) the conditions that apply or applied to:(A)the last of any substantive visas held by the applicant (other than a condition of which the applicant was in breach solely because the visa ceased to be in effect); and(B)any subsequent bridging visa; and(f)either:(i) in the case of an applicant referred to in paragraph (a) — the applicant would have been entitled to be granted a visa of the class applied for if the applicant had applied for the visa on the day when the applicant last held a substantive or criminal justice visa; or(ii) in the case of an applicant referred to in paragraph (b) — the applicant would have satisfied the criteria (other than any Schedule 3 criteria) for the grant of a visa of the class applied for on the day when the applicant last entered Australia unlawfully; and(g)the applicant intends to comply with any conditions subject to which the visa is granted; and(h)if the last visa (if any) held by the applicant was a transitional (temporary) visa, that visa was not subject to a condition that the holder would not, after entering Australia, be entitled to be granted an entry permit, or a further entry permit, while the holder remained in Australia.

Ratio Decidendi

Legal Principle Established

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