2002392 (Migration) - [2024] AATA 3828

2002392 (Migration) [2024] AATA 3828 (8 March 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Eugene Alexander (MARN: 9256268)
CASE NUMBER:  2002392
MEMBER:Justine Clarke
DATE OF ORAL DECISION:  8 March 2024
DATE OF WRITTEN STATEMENT:         27 March 2024
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
·reg 2.03A

Statement made on 27 March 2024 at 1:13pm
CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – genuine and continuing relationship at time of application – financial, household and social aspects relationship and nature of commitment – no financial support while applicant living with family in home country – age difference – timing, development and length of relationship – inadvertent mis-remembering of dates – limited documentation and photos but broadly consistent and credible oral evidence – supporting statements – application made more than 28 days after last substantive visa held – compelling reasons for not applying criterion – mother’s health and expenses and father’s business difficulties – previous student visa cancelled and application for judicial review made on faulty advice – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5CB(2), 65
Migration Regulations 1994 (Cth), rr 1.09A(3), 2.03A, Schedule 2, cls 820.211(1), (2)(a), (d), 820.221(1)(a), Schedule 3, criteria 3001, 3003, 3004
CASES
Babicci v MIMIA (2005) 141 FCR 285
He v MIBP [2017] FCAFC 206
MIEA v Pochi (1980) 4 ALD 139
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 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 21 January 2020 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 29 June 2018, the applicant, who is a national of Nepal, applied for the visa based on her relationship with [her sponsor]. At the time of the application for the visa, 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 the applicant applied for the visa, 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. Relevantly to this matter, the primary criteria include cl 820.211…

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 2002392 (Migration)

Details

AGLC: 2002392 (Migration) [2024] AATA 3828
Case: [2024] AATA 3828
Decision Date: 8 March 2024

CaseChat Overview and Summary

This matter concerned an application for a Partner (Temporary) (Class UK) visa, Subclass 820 (Partner), made by the applicant on 29 June 2018. The applicant claimed to be in a de facto relationship with the sponsor, an Australian citizen. The primary dispute revolved around whether the applicant and sponsor were genuinely in a de facto relationship at the time of the visa application, and whether compelling reasons existed to waive Schedule 3 criteria, as the application was made more than 28 days after the applicant's last substantive visa expired. The case was heard by Justine Clarke.

The court was required to determine three key issues. Firstly, whether the applicant and sponsor were in a de facto relationship for the purposes of clause 820.211(2)(a) at the time the visa application was lodged. Secondly, whether there were compelling reasons to waive the Schedule 3 criteria, as stipulated in clause 820.211(2)(d)(ii). Finally, the court needed to ascertain if the additional criteria for a de facto relationship, as outlined in regulation 2.03A, were met.

The Tribunal considered evidence both before and after the visa application date, applying the principle that subsequent events are relevant if they logically demonstrate the existence or non-existence of facts pertinent to the issue at hand, as per *Minister for Immigration and Ethnic Affairs v Pochi* (1980) 4 ALD 139. The Tribunal was satisfied that the applicant was not the holder of a Transit visa at the time of application, thus meeting clause 820.211(1)(a). The central question then became whether the applicant and sponsor were de facto partners under the Act. The Tribunal also considered clause 820.221, which requires the applicant to continue to meet the applicable subclause criteria at the time of the decision. The Tribunal confirmed the sponsor's Australian citizenship. The Tribunal concluded that the matter should be remitted for reconsideration.

Orders

Orders of the court

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Background

Background to the litigation

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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 In this review, there are three issues for determination. First, whether at the time of application for the visa on 29 June 2018, the applicant and the sponsor were in a de facto relationship (for the purposes of cl 820.211(2)(a)). Second, whether there are compelling reasons to waive the Schedule 3 criteria (for the purposes of cl 820.211(2)(d)(ii)). Finally, whether the additional criteria for a de facto relationship (in reg 2.03A) are met. THE RELEVANT REQUIREMENTS IN PART 820 - WHETHER THE PARTIES ARE IN A SPOUSE OR DE FACTO RELATIONSHIP The primary criteria to be satisfied at the time of application are set out in cl 820.211(1). This requires that the applicant is not the holder of a Subclass 771 (Transit) visa and that she meets one of the alternate requirements set out in cl 820.211(2), (5), (6), (7), (8) or (9). The Tribunal has reviewed the applicant’s movement records which also detail her visa status at various times. The Tribunal is satisfied that, at the time of application on 29 June 2018, she was not the holder of a Subclass 771 (Transit) visa. Therefore, the Tribunal finds that cl 820.211(1)(a) is met. The subclause relevant to the applicant’s circumstances is cl 820.211(2). Accordingly, in this case, the issue for determination is whether, at the time of application on 29 June 2018, the applicant and the sponsor were de facto partners for the purposes of the Act. 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. In making findings about the status of the parties’ relationship at the time of application, the Tribunal has also had regard to evidence of events subsequent to the date of the visa application. In the circumstances of this case, the Tribunal considers that it is appropriate to make findings about cl 820.221 (a time of decision criterion) as well. Clause 820.221(1)(a) provides:(1) In the case of an applicant referred to in subclause 820.211(2), (5), (6), (7), (8) or (9), the applicant either:(a)continues to meet the requirements of the applicable subclause[.] Clause 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 was and 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 de facto partner of the sponsor who is an Australian citizen. The Department’s file contains a copy of the bio-pages of the sponsor’s Australian passport. From the evidence before it, the Tribunal is satisfied that the sponsor is an Australian citizen. Are the parties in a de facto relationship?

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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