2120035 (Migration) - [2024] ARTA 859

2120035 (MIGRATION) [2024] ARTA 859 (4 DECEMBER 2024)
DECISION AND
REASONS FOR DECISION
Respondent:  Minister for Immigration and Multicultural Affairs
Tribunal Number:  2120035

Tribunal:General Member J Clarke
Place:Melbourne
Date: 4 December 2024
Decision:The Tribunal 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 820.211 of Schedule 2 to the Regulations;
·cl 820.221(1) of Schedule 2 to the Regulations; and
·reg 2.03A.

Statement made on 04 December 2024 at 2:35pm
CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 – sponsor is deceased – was the de facto partner of the sponsor who was an Australian citizen – both persons had made a Will nominating the other as beneficiary of their respective estate – the parties opened and operated a joint bank account – applicant and the sponsor had a mutual commitment to their partner relationship – applicant would have continued to be the de facto partner of the sponsor – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5, 65
Migration Regulations 1994, rr 1.09, 2.03A, Schedule 2, cls 820.211,820.221
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 on 15 December 2021 by a delegate of the Minister for Home Affairs to refuse to grant the visa applicant a Partner (Temporary) (Class UK) Subclass 820 visa under s 65 of the Migration Act 1958 (Cth) (the Act).
On 23 April 2019, the applicant, who is a national of Vietnam, applied for the visa based on his relationship with his sponsor, [Mr A]. At that time, 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 deceased.[1]
[1] The registered death certificate was lodged with the Tribunal in this review. The sponsor passed between 5 January 2022 and 6 January 2022.
At the time that 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 and cl 820.221.
The applicant provided the Tribunal with a copy of the delegate’s refusal decision (the primary decision). The delegate assessed the application pursuant to cl 820.211(2), finding it to be the only subclause relevant to the applicant’s circumstances. The delegate considered the information and evidence, submitted in support of the application, and found that it was not sufficient to demonstrate that, at the…

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 2120035 (Migration)

Details

AGLC: 2120035 (Migration) [2024] ARTA 859
Case: [2024] ARTA 859
Decision Date: 4 December 2024

CaseChat Overview and Summary

The parties involved in this case are an applicant for a Partner (Temporary) (Class UK) visa, referred to as the applicant, and the sponsor, who was an Australian citizen. The dispute revolves around the eligibility of the applicant for the visa after the death of the sponsor. The matter was heard in the Administrative Appeals Tribunal (AAT). The primary legal issues that the AAT needed to decide were whether the applicant and the sponsor were in a de facto relationship at the time of the visa application and whether the additional criteria for a de facto relationship were met.

The AAT found that the applicant was not the holder of a Subclass 771 (Transit) visa at the time of application, satisfying one of the primary criteria. The key issue was whether the applicant and the sponsor were de facto partners at the time of the visa application. The AAT considered evidence of events subsequent to the visa application as relevant and concluded that the applicant and the sponsor were indeed in a de facto relationship at the time of application. The AAT also considered whether the applicant would have continued to be the de facto partner of the sponsor if the sponsor had not died, a criterion relevant to the application. Given these findings, the AAT set aside the decision under review and remitted the matter to the Minister for reconsideration of the remaining criteria for a Subclass 820 visa.

The Tribunal's reasoning was based on the applicant's status at the time of application and the subsequent evidence indicating the nature of the relationship. The Tribunal found that the applicant met the criteria for being in a de facto relationship at the time of application and would have continued in that relationship if the sponsor had not died. Therefore, the Tribunal decided that the application should be reconsidered in light of these findings. The AAT's decision ensures that all relevant criteria are properly considered by the Minister, providing the applicant with an opportunity to demonstrate continued eligibility for the visa.

The final orders from the AAT were to remit the application for a Partner (Temporary) (Class UK) visa for reconsideration, with the applicant meeting specific criteria as outlined in the decision. The applicant must demonstrate compliance with cl 820.211, cl 820.221(1), and reg 2.03A of the Migration Regulations 1994. This ensures that the Minister considers the applicant's ongoing eligibility for the visa, taking into account all relevant circumstances and criteria.

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 decision under review is set aside, and the matter should be remitted for reconsideration.CONSIDERATION OF CLAIMS AND EVIDENCE In this review, there are two main issues for determination. First, whether at the time of application for the visa on 23 April 2019, the applicant and the sponsor were in a de facto relationship (for the purposes of cl 820.211(2)(a)). Second, whether the additional criteria for a de facto relationship (in reg 2.03A) are met. 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 relevantly 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; or (b) meets the requirements of subclause (2) or (3). (2) An applicant meets the requirements of this subclause if the applicant: (a) would continue to meet the requirements of subclause 820.211(2), (5) or (6) except that the sponsoring partner has died; and (b) satisfies the Minister that the applicant would have continued to be the spouse or de facto partner of the sponsoring partner if the sponsoring partner had not died.THE RELEVANT REQUIREMENTS IN PART 820 – WHETHER, AT THE TIME OF APPLICATION FOR THE VISA AND AT THE TIME PRIOR TO THE SPONSOR’S DEATH, THE PARTIES WERE 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 he 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 his visa status at various times. The Tribunal is satisfied that, at the time of application on 23 April 2019, he 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 key issue for determination is whether, at the time of application on 23 April 2019, 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. Clause 820.211(2)(a) requires that, at the time the visa application was made, the applicant was the spouse or de facto partner of an Australian citizen or Australian permanent resident or an eligible New Zealand citizen.

Decision

Reasons for decision

Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 820 visa.DECISION The Tribunal 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 820.211 of Schedule 2 to the Regulations; ·cl 820.221(1) of Schedule 2 to the Regulations; and·reg 2.03A.Date(s) of hearing: 27 November 2024Representative for the Applicant: ATTACHMENT - Extract from Migration Regulations 19941.09A De facto partner and de facto relationship(1)For subsection 5CB (3) of the Act, this regulation sets out arrangements for the purpose of determining whether 1 or more of the conditions in paragraphs 5CB (2) (a), (b), (c) and (d) of the Act exist.Note 1 See regulation 2.03A for the prescribed criteria applicable to de facto partners.Note 2 The effect of subsection 5CB (1) of the Act is that a person is the de facto partner of another person (whether of the same sex or a different sex) if the person is in a de facto relationship with the other person.Subsection 5CB (2) sets out conditions about whether a de facto relationship exists, and subsection 5CB (3) permits the regulations to make arrangements in relation to the determination of whether 1 or more of those conditions 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 in a de facto relationship with 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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