1930048 (Migration) - [2025] ARTA 966

1930048 (Migration) [2025] ARTA 966 (4 June 2025)
DECISION AND
REASONS FOR DECISION
Respondent:Minister for Immigration and Multicultural Affairs
Tribunal Number: 1930048

Tribunal:General Member D. Barker
Place:Sydney
Date: 4 June 2025
Decision:The Tribunal sets aside the decision under review and remits the application for a Partner (Temporary) (Class UK) visa for reconsideration in accordance with the order that the applicant meets the following criteria for a Subclass 820 (Partner) visa:
·cl 820.221(3) of Schedule 2 to the Regulations.

Statement made on 04 June 2025 at 9:58am
CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – genuine and continuing relationship – validly married – significant dowry claimed by sponsor’s family – limited evidence of financial, household and social aspects of relationship and nature of commitment – representation as married to relatives, friends and employer – relationship ceased after short time, sponsorship withdrawn and non-judicially determined claim of family violence – abused, struck and threatened by sponsor and/or her father – statutory declaration and reports from specified persons – no contemporary third-party corroborative evidence – date of cessation of relationship – opinion of independent expert properly made and taken as correct – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5CB, 5F(2), 65, 375A, 359AA
Migration Regulations 1994 (Cth), rr 1.15A(3), 1.21, 1.23, 1.24, 1.25(2), 1.27, Schedule 820.211(8), (9), 820.221(3)(a), (b)(i)
CASES
He v MIBP [2017] FCAFC 206
MICMSMA v Gupta [2022] FCAFC 51
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
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 Migration Act 1958 (Cth) (the Act).
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 (the Transitional Act), 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.
The applicant applied for the visa on 29 July 2018 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 (Cth) (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. Relevantly to this matter the primary criteria include cl 820.211 and 820.221 which require…

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 1930048 (Migration)

Details

AGLC: 1930048 (Migration) [2025] ARTA 966
Case: [2025] ARTA 966
Decision Date: 4 June 2025

CaseChat Overview and Summary

The case involves a Lebanese national applicant who sought a Partner (Temporary) (Class UK) visa under Subclass 820. The sponsor, born in Australia, withdrew her sponsorship and claimed the relationship had ceased. The applicant alleged family violence by the sponsor and/or her father. The Administrative Appeals Tribunal (AAT) reviewed the decision to deny the visa and found the decision under review was set aside, remitting the matter for reconsideration. The Tribunal was tasked with determining whether the applicant and sponsor were in a genuine spousal relationship and if the applicant experienced family violence.

The legal issues the court had to decide were whether the relationship between the applicant and the sponsor was genuine and if the applicant had experienced family violence. The Tribunal assessed the relationship's financial, household, and social aspects and the nature of the commitment between the parties. It considered the representation of the relationship to others, the length of the relationship, and the degree of companionship and emotional support. The Tribunal also evaluated the non-judicially determined claim of family violence and the evidence provided by the applicant, including statutory declarations and reports from specified persons.

The Tribunal's reasoning involved examining the limited evidence of the financial, household, and social aspects of the relationship and the nature of the commitment. The Tribunal found that the relationship had ceased and acknowledged the non-judicially determined claim of family violence, relying on the opinion of an independent expert. The Tribunal concluded that the applicant met the requirements for a Subclass 820 visa because the relationship had ceased, and the applicant experienced relevant family violence. Therefore, the decision under review was set aside, and the matter was remitted for reconsideration.

The final orders were to set aside the decision under review and remit the application for a Partner (Temporary) (Class UK) visa to the Minister for reconsideration, in accordance with the order that the applicant met the criteria for a Subclass 820 visa.

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 is set aside, and the matter be remitted for reconsideration.BACKGROUND The applicant is a national of Lebanon and is [Age] years of age. The sponsor was born in Australia and is of Lebanese descent. She is [Age] years of age. The applicant has indicated that that he and the sponsor (when referred to collectively, hereafter referred to as ‘the parties’) are distantly related. He claims that they connected with each other online in or around May 2015.[1] The parties met for the first time in-person on 3 November 2015 in Lebanon and that they made a commitment to a shared life together to the exclusion of all others on 20 November 2015. [1] Applicant Statutory Declaration declared 15 August 2018. On 31 October 2017, the applicant was granted a Subclass 300 Prospective Marriage visa and then arrived in Australia [in] November 2017. The applicant has claimed that the parties were married in [Suburb 1], NSW [in] April 2018[2], however the Tribunal notes that the marriage certificate issued by NSW Births, Deaths and Marriages indicates that the marriage occurred some weeks earlier [in] March 2018[3]. The [April] 2018 date is also identified as the parties’ marriage date in statutory declarations prepared by [Ms A], [B], [C], [D], [E] and by [Mr F], the wedding photographer. This discrepancy appears explained by information in the report of the independent expert, who states that ‘The couple then signed the official marriage documentation with an Imam [in] March 2018 and held a wedding reception [in] April 2018’.[4] That is the parties married on [Day 1] March 2018, registered the marriage with NSW Births, Deaths and Marriages on [Day 2] March 2018 and subsequently held a wedding celebration [in] April 2018.[2] Applicant Statutory Declarations declared 15 August 2018 and 4 March 2025. [3] NSW Births, Deaths and Marriages marriage certificate field with ART on 6 March 2025.[4] Report of Independent Expert [page 3 of 17] On 22 October 2018, the sponsor advised the Department that the parties’ relationship had ended on 7 October 2018. At this time, she provided the Department with a different residential address than the [Suburb 2] address where she had resided with the applicant, and she indicated that she withdrew her sponsorship for the applicant’s Partner visa. On 11 July 2019, the Department sent the applicant a natural justice letter inviting comment on information received regarding a change in his relationship status with the sponsor, namely that the parties’ relationship had ceased and that the sponsorship for his Partner visa application had been withdrawn. Following this the applicant informed the Department that he was a victim of family violence perpetrated by the sponsor and filed documents including, but not limited to:·Applicant written statement – undated.·Rent receipt history for [Suburb 2] property – issued 28 August 2019 covering the period from 28 March 2018 to 3 October 2018.·Letter dated 30 July 2019 from [Dr G], general practitioner.·Statutory Declaration form 1410 declared by the applicant on 15 August 2019.·Applicant written statement dated 15 August 2019.·Statutory Declaration, completed by [Ms H], registered psychologist dated 3 September 2019.·Psychologist report from [Ms H], dated 2 September 2019.

Evidence

Evidence Before The Court

It is apparent that at the time the Department received the material covered by the certificated documents there was a conflictual atmosphere between the applicant and other parties. The Tribunal does not for that reason consider some of the more adverse allegations, as detailed above to be information it has placed weight upon. However, the Tribunal does consider of some significance to be an acknowledgment that the parties were to have been in a relationship from the time of their engagement to early September 2018.CONSIDERATION OF CLAIMS AND EVIDENCE Relevant to this matter the primary criteria for a Subclass 820 Partner visa include cl 820.211 and 820.221 which require that at the time of application and decision, the applicant to be the spouse or de facto partner of the sponsor, unless the relationship has ceased, and certain circumstances exist. These include that the applicant, or a member of the family unit, has suffered family violence committed by the sponsor: cl 820.211(8) or (9) and 820.221(3)(a) and (3)(b)(i). In the present case the sponsor on 22 October 2018 notified the Department that the parties’ relationship had ended on 7 October 2018 and that she withdrew her sponsorship for the applicant’s Partner visa. The applicant has confirmed that the parties’ relationship had ceased. There is nothing to suggest that the sponsor is deceased and there is no evidence in relation to any responsibilities with respect to any children. In the particular circumstances of this case, the applicant is seeking establish family violence on the basis of a non-judicially determined claim of family violence. Under reg 1.23 of the Regulations, a person is taken to have suffered or committed family violence if there is evidence tested before a court; or the visa application includes a non-judicially determined claim of family violence, and either the Minister (or the Tribunal on review) is satisfied that the alleged victim has suffered relevant family violence or an opinion of an independent expert has been given that the alleged victim has suffered relevant family violence. Relevant family violence is defined in reg 1.21. These regulations, as relevant to this decision, are extracted in the attachment to this decision. The Tribunal notes that the violence, or part of the violence must have occurred during the relationship: reg 1.23(3), (5), (7), (12), (14). In order to consider whether the applicant was a victim of family violence perpetrated by the sponsor prior to the relationship ceasing between the parties, it is necessary for the Tribunal to consider whether the review applicant and the sponsor were in a genuine spousal relationship at the time of application for the Subclass 820 Partner visa. This is because the family violence criteria which provides for an exception to the sponsorship requirements require that ‘the relationship between the applicant and the sponsoring partner has ceased.’[6] The relevant partner relationship must therefore have existed before it can be determined that the relationship ‘has ceased.’ If the Tribunal determines that the partner relationship never existed, the family violence exception to the relationship continuing does not arise for consideration.[7][6] Cl 820.221(3)(a).[7] MICMSMA v Gupta [2022] FCAFC 51 at [44], agreeing with Jagot J in Hanna v MIBP [2016] FCA 282.Assessment of spousal relationship

Decision

Reasons for decision

As the relationship between the applicant and sponsor has ceased, and the applicant has experienced relevant family violence committed by the sponsor, the applicant meets the requirements of cl 820.221(3). Given these findings, the appropriate course is to set aside the decision under review and remit the visa application to the Minister to consider the remaining criteria for the visa.DECISION The Tribunal sets aside the decision under review and remits the application for a Partner (Temporary) (Class UK) visa for reconsideration, in accordance with the order that the applicant meets the following criteria for a Subclass 820 visa:·cl 820.221(3) of Schedule 2 to the Regulations Dates of hearing(s): 19 February 2025 Representative for the Applicant: Mrs Maryanne Issa (MARN: 1577048)ATTACHMENT - 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

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