2007149 (Migration) - [2021] AATA 5297

2007149 (Migration) [2021] AATA 5297 (8 September 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 2007149
MEMBER:Kate Millar
DATE:8 September 2021
PLACE OF DECISION: Adelaide
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 of Schedule 2 to the Regulations; and
·cl.820.221 of Schedule 2 to the Regulations; and
·r.2.03A of the Regulations.

Statement made on 08 September 2021 at 12:52pm

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 – Federal Court remittal – sponsorship obligations – whether sponsor had capacity to sign sponsorship forms – mental illness – compelling circumstances affecting the sponsor – applicant had been in the de facto relationship for 9 years – ceased to hold a substantive visa more than 28 days prior to lodging the visa application – compelling reasons for waiving the Schedule 3 criteria – long-term genuine relationship – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss, 5, 5CB, 65, 359AA
Migration Regulations 1994 (Cth), rr 1.03, 1.09A, 1.20, 2.03A; Schedule 2, cls 820.211, 820.221; Schedule 3, Public Interest Criteria (‘PIC’) 3001, 3004,
CASES
Babicci v MIMIA (2005) 141 FCR 285
He v MIBP [2017] FCAFC 206
MZYPZ v MIAC [2012] FCA 478
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

[Mr A] came to Australia from Bangladesh in 2006 as a student and has not left Australia since. He met [Ms B] in May 2012, and the parties state they have been in a de facto relationship since June 2012.
On 28 May 2014 [Mr A] applied for Partner (Temporary) (Class UK) and Partner (Residence) (Class BS) visas. His applications were refused by a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs because the delegate was not satisfied [Mr A] and [Ms B] were in a de facto relationship as defined by the Migration Act 1958 (Cth) (the Act) and Migration Regulations 1994 (Cth) (the Regulations).
[Mr A] applied for a review of this decision, and on 19 November 2015, this Tribunal (differently constituted) affirmed the decision on the basis that [Ms B] did not have the capacity to provide the financial support to meet the sponsorship obligations for the visa. This finding was in the context of [Ms B] being found by the State Administration Tribunal to be unable to manage her financial affairs, with an Administration Order being made on 15 July 2014.
The Full Court of the Federal Court [quashed] the decision to refuse the visas, and remitted the matter for reconsideration, in summary finding that the sponsorship undertakings require a sponsor to make an undertaking, but do not require an assessment of the ability of the sponsor to…

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 2007149 (Migration)

Details

AGLC: 2007149 (Migration) [2021] AATA 5297
Case: [2021] AATA 5297
Decision Date: 8 September 2021

CaseChat Overview and Summary

This matter concerned an application for a Partner (Temporary) (Class UK) visa, Subclass 820, made by Mr A. The application was refused by a delegate of the Minister, and subsequently reviewed by the Tribunal. The primary issues before the Tribunal were whether Mr A was the de facto partner of Ms B at the time of his application, whether he met the Schedule 3 requirements, and whether those requirements should be waived. A further consideration was whether Ms B, the proposed sponsor, had the capacity to sign the sponsorship forms, given an administration order had been made in respect of her due to mental illness.

The Tribunal was required to determine if Ms B had the capacity to undertake the sponsorship obligations at the time of Mr A's visa application. The Tribunal noted that the definition of "sponsor" in the Regulations requires an undertaking to be made, not an assessment of the sponsor's financial capacity at that point. Ms B had signed the sponsorship form, indicating an undertaking to assist Mr A financially and in relation to accommodation. The Tribunal also had to consider whether Mr A met the Schedule 3 requirements, which relate to applicants who have ceased to hold a substantive visa more than 28 days prior to lodging their application. If these requirements were not met, the Tribunal had to assess whether there were compelling reasons to waive them.

The Tribunal reasoned that the sponsorship undertaking was made by Ms B when she signed the sponsorship form, irrespective of her subsequent administration order. The Tribunal found that Mr A had been in a de facto relationship with Ms B for approximately nine years. Given the long-term nature of this genuine relationship, and Mr A's circumstances of having been unlawful for an extended period and facing homelessness, the Tribunal concluded that there were compelling reasons to waive the Schedule 3 requirements.

Consequently, the Tribunal remitted the matter for reconsideration, with directions to grant the visa if the other criteria were met.

Orders

Orders of the court

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Background

Background to the litigation

For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.BACKGROUND [Mr A] said he came to Australia in 2006 to study in Melbourne. He said he had bad friends, could not complete his studies and became unlawful, with the Department records showing this was in March 2008. He said after this he was “roaming around” and ended up in Perth in 2010. He was at a low point and tried to kill himself but was prevented by the manager of the backpacker accommodation, but not long after became homeless and was living on the streets. While on the street, he met [Mr D] who would stop to chat as he was lonely and would bring him meals. He met [Ms B] through [Mr D] in May 2012. [Ms B] would come and have a chat with [Mr D] and [Mr A] on most days, and eventually invited [Mr A] to see her home and to have a shower. He says she invited him to stay in her house in around 2012, and their relationship developed from there. [Mr A] said he was located by an immigration officer and was taken to immigration detention on [date] September 2013 and detained for 21 days. He says [Ms B] visited him every day. He applied for a protection visa on 27 September 2013 so he could leave immigration detention and return to live with [Ms B]. His protection visa application was refused by a delegate of the Minister on 9 December 2013. [Mr A] applied for a review of the decision to refuse his protection visa application but withdrew his appeal on 14 April 2014. [Mr A] applied for the visas the subject of this review, and [Ms B] signed the sponsorship forms, on 28 May 2014. On 15 July 2014 an administration order was made under the Guardianship and Administration Act 1990 (WA) in respect of [Ms B] by the State Administration Tribunal. This order appointed the Public Trustee as her plenary administrator. A guardian was appointed on 4 December 2014 for the limited function of conducting or settling any legal proceedings and included liaising and obtaining information as necessary, including the sponsorship application made to the Department of Immigration and Border Protection. The guardianship order was revoked on 30 April 2019, however the administration order remained in effect as at the date of the hearing of this matter.CONSIDERATION OF CLAIMS AND EVIDENCE [Mr A] applied for the visa on 28 May 2014 and 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 Regulations, and [Mr A] must meet the primary criteria to be granted the visa. The delegate refused to grant the visa on the basis that [Mr A] did not satisfy cl.820.211. This was because the delegate was not satisfied that [Mr A] met the requirement in cl.820.211(2)(a) that at the time of the visa application, he was the de facto partner of [Ms B], and did not otherwise meet cl.820.211. The delegate found that as a result, he also did not meet the time of decision requirements in cl.820.221.

Evidence

Evidence Before The Court

The guardianship order was revoked on 30 April 2019, however the administration order remained in effect as at the date of the hearing of this matter.CONSIDERATION OF CLAIMS AND EVIDENCE [Mr A] applied for the visa on 28 May 2014 and 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 Regulations, and [Mr A] must meet the primary criteria to be granted the visa. The delegate refused to grant the visa on the basis that [Mr A] did not satisfy cl.820.211. This was because the delegate was not satisfied that [Mr A] met the requirement in cl.820.211(2)(a) that at the time of the visa application, he was the de facto partner of [Ms B], and did not otherwise meet cl.820.211. The delegate found that as a result, he also did not meet the time of decision requirements in cl.820.221. At the first review of this decision review, the previous Tribunal found [Mr A] did not meet the requirement in cl.820.221 to be sponsored at the time of decision. This was because the Tribunal was not satisfied [Ms B] had the capacity to meet the financial sponsorship requirements at the time of its decision. The Tribunal has approached the review of this decision by first considering the sponsorship obligations. If these are met, it is then necessary to consider if, at the time of the decision, [Mr A] was the de facto partner of [Ms B] as defined by the Act and Regulations, and whether he meets the Schedule 3 requirements or if the Schedule 3 requirements should be waived. Was [Mr A] sponsored by [Ms B] at the time of his visa application? As it applies to [Mr A], cl.820.211(2)(c) requires that at the time of the visa application, he was sponsored by [Ms B]. The term “sponsor” is defined in r.1.03 of the Regulations as having the meaning in r.1.20(1) and “sponsorship” is defined as an undertaking of the kind referred to in r.1.20 of the Regulations to sponsor an applicant. Regulation 1.20(1) states the sponsor of a person is a person who undertake the obligations in r.1.20(2). In the case of a person who has made a concurrent application for a Partner (Temporary)(Class UK) visa and Partner (Residence)(Class BS) visa, the sponsor undertakes to assist the applicant to the extent necessary financially and in relation to accommodation during the two years immediately following the grant of a temporary or provisional visa. As explained by the Full Federal Court, what is required at the time of the application is that the sponsor has made an undertaking. It does not require an assessment of the sponsor’s financial capacity to fulfill the undertaking. In this case, [Ms B] signed an undertaking in the 40SP form “Sponsorship for a partner to migrate to Australia” on 27 May 2014..The undertaking appears at Question 52 of the form, and as it applies to a sponsor of a partner visa applicant states:I agree to assist my partner, to the extent necessary:·financially;·in relation to accommodation in the first 2 years immediately after their Partner visa is granted (if they were granted the visa in Australia) or their first entry to Australia as the holder of a Partner visa (if they were granted the visa outside Australia)

Decision

Reasons for decision

[Ms B] stated [Mr A] does not attend church with her and does not want to marry, which she would like to do. Conclusion – de facto relationship

Ratio Decidendi

Legal Principle Established

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