Ali (Migration) - [2022] AATA 3856

Ali (Migration) [2022] AATA 3856 (1 November 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Muhammad Haider Ali
REPRESENTATIVE:  Mr Hendrik de Korte
CASE NUMBER:  1905381
HOME AFFAIRS REFERENCE(S):          BCC2018/2731887
MEMBER:Edward Howard
DATE:1 November 2022
PLACE OF DECISION:  Brisbane
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(2) of Schedule 2 to the Regulations
·cl 820.221 of Schedule 2 to the Regulations
·reg 2.03A

Statement made on 01 November 2022 at 11:20am

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) – Subclass 820 (Partner) – genuine continuing relationship – registered civil partnership – financial, household and social aspects of relationship and nature of commitment – living separately while sponsor’s mother visiting and unaware of relationship – COVID travel restrictions prevent her departure – mother’s prejudice and parties’ plan to inform her when visa granted – applicant’s contribution to sponsor’s mortgage – evidence from applicant’s colleague/friend – length of relationship – 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, cl 820.211(2)(a), 820.221
CASES
Ally v MIAC [2008] FCAFC 49
Bretag v IRT [1991] FCA 582
He v MIBP [2017] FCAFC 206
Jayasinghe v MIMA [2006] FCA 1700
MIEA v Poche (1980) 4 ALD 139
statement of decision and reasons
application for review

This is an application for review of a decision made 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).
The applicant applied for the visa on 21 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.
The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl 820.211.
The applicant appeared before the Tribunal on 7 October 2022 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Hoa Ngoc Tram Nguyen and Mr Robert Thomas. The applicant was represented in relation to the review.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
BACKGROUND
The visa applicant is Muhammad Haider Ali, 34 years of age, a citizen of Pakistan. The sponsor is Hoa Ngoc Tram Nguyen, 35 years of age, an Australian citizen. The parties claim to have met in October 2014 when the visa applicant commenced living in shared accommodation where the sponsor was resident. The parties claim…

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 Ali (Migration)

Details

AGLC: Ali (Migration) [2022] AATA 3856
Case: [2022] AATA 3856
Decision Date: 1 November 2022

CaseChat Overview and Summary

This matter concerned an application for a Partner (Temporary) (Class UK) visa by Muhammad Haider Ali, a citizen of Pakistan, sponsored by Hoa Ngoc Tram Nguyen, an Australian citizen. The core dispute revolved around whether the parties were in a genuine and continuing de facto relationship at the time of the visa application and at the time of the Tribunal's decision, as required by the Migration Regulations 1994. The Tribunal was tasked with assessing the financial, household, social aspects of the relationship, and the nature of the parties' commitment to each other.

The legal issues before the Tribunal were whether the applicant and sponsor met the criteria for being in a de facto relationship under clauses 820.211(2)(a) and 820.221 of Schedule 2 to the Regulations, and regulation 2.03A. Specifically, the Tribunal had to determine if the parties had a mutual commitment to a shared life to the exclusion of all others, if their relationship was genuine and continuing, and if they lived together, or if they did not live separately and apart on a permanent basis, at both the time of the visa application and the time of the decision. The Tribunal also considered the relevance of events occurring after the visa application date in assessing the relationship at the time of application.

The Tribunal reasoned that while the parties had lived separately for a period due to the sponsor's mother residing with her, and this separation was influenced by familial prejudice and COVID-19 travel restrictions, the evidence supported a finding of a genuine and continuing relationship. The Tribunal noted the parties had been in a relationship for over seven years and had registered their relationship as a civil partnership. It found that the parties had demonstrated a strong commitment to each other, supported each other through difficult times, and clearly viewed their relationship as long-term. The Tribunal concluded that the parties met the requirements of section 5CB of the Act at the time of the visa application and continued to meet these requirements at the time of the decision, including the criterion that they did not live separately and apart on a permanent basis.

Consequently, the Tribunal found that the visa applicant met the requirements of clauses 820.211(2) and 820.221 of the Regulations. The Tribunal remitted the application for reconsideration with a direction that the applicant meets these specified criteria.

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 The visa applicant is Muhammad Haider Ali, 34 years of age, a citizen of Pakistan. The sponsor is Hoa Ngoc Tram Nguyen, 35 years of age, an Australian citizen. The parties claim to have met in October 2014 when the visa applicant commenced living in shared accommodation where the sponsor was resident. The parties claim that they commenced a serious relationship in July 2015 and then moved in together in February 2018. The parties registered their relationship pursuant to the Civil Partnerships Act 2011 (Qld) on 15 June 2018.The visa applicant moved out of the residence in February 2020 when the sponsor’s mother moved in. The parties claim that they have continued to be in a de facto relationship, living between their respective residences. Issues And Law There is a two stage process for onshore Partner visas. A visa applicant must first hold a provisional visa, enabling them to remain in Australia on a temporary basis, prior to the grant of a permanent visa. The grant of a permanent visa would generally depend on whether the relationship has continued for a period of at least two years. In this matter, the Tribunal is considering the first, temporary stage. Where the Tribunal is considering a criterion that requires the definition of spouse or de facto partner to be met at the time of the visa application, the information supplied in relation to the reg 1.09A(3) matters may relate to circumstances after the time of application. In forming a view of the relationship at the time of application, the Tribunal must consider all relevant evidence, which may include evidence of events after the date of application insofar as it assists in the task of determining whether the visa applicant and the sponsor were in a partner relationship at the time of the application. Evidence of events after 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.[1] The Tribunal observes this to be a matter where the visa applicant submitted limited documentary evidence in support of his visa application to the Department of Home Affairs and then furnished the Tribunal with further evidence that was unavailable to the primary decision maker.[1] Ally v MIAC [2008] FCAFC 49 at [32]–[35]; Jayasinghe v MIMA [2006] FCA 1700 at [35], citing MIEA v Poche (1980) 4 ALD 139 at [24] per Deane J which held that evidence of subsequent events may be taken into account if it ‘tends to logically show the existence or non-existence of’ the relationship at that particular time; and see also Bretag v IRT [1991] FCA 582 at [13]–[15]. The issue in the present case is whether at the time of the visa application and the time of this decision, the visa applicant is the spouse or de facto partner of the sponsor.Whether the parties are in a spouse or de facto relationship Clauses 820.211(2)(a) and 820.221 require that at the time the visa application was made, and at the time of this decision, the applicant is the spouse or de facto partner of an Australian citizen or Australian permanent resident or an eligible New Zealand citizen. In the present case the applicant claims to be the de facto partner of the sponsor who is an Australian citizen.Are the parties in a de facto relationship?

Evidence

Evidence Before The Court

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Decision

Reasons for decision

From the evidence provided, the Tribunal accepts that the parties have supported and cared for each other through difficult time, especially relating to the prejudices of their respective families and the impact of living in separate residences. The evidence supports a finding that the parties are in a genuine and continuing relationship, showing strong commitment to each other and clearly see the relationship as long-term. In particular, the Tribunal finds that the parties have now been in a relationship for more than seven years. The Tribunal weighs the nature of the commitment in favour of the visa applicant.Overall Conclusions Having considered the evidence and for the reasons above, the Tribunal is satisfied that at the time of application, the parties had a mutual commitment to a shared life to the exclusion of all others; that the relationship between them was genuine and continuing; and that they lived together. The Tribunal is therefore satisfied the requirements of section 5CB of the act were met the time of the visa application. The Tribunal is further satisfied that at the time of this decision the parties continue to have a mutual commitment to a shared life to the exclusion of all others and that the relationship between them has been and remains genuine and continuing. The Tribunal is also satisfied that whilst the parties do not live together, they do not live separately and apart on a permanent basis. The Tribunal is therefore satisfied the requirements of section 5CB(2) of the Act are met at the time of this decision. The Tribunal is therefore satisfied that the parties relationship fulfilled the criteria contained in clause 820.211(2)(a) of the regulations at the time the visa application was made and at the time of this decision. The Tribunal is satisfied that at the time of the application, the visa applicant was sponsored by the sponsor in accordance with cl.820.211(c), who lodged a sponsorship in support of the application. The Tribunal is satisfied that at the time of this decision the visa applicant continues to be sponsored by his sponsor. The Tribunal is further satisfied that at the time of this application, the visa applicant was the holder of a substantive visa in accordance with cl.820.211(d) and that he continues to meet that subclause at the time of this decision. Pursuant to clause 820.221(1), in order to be eligible for the grant of a subclass 820 (UK) visa, the visa applicant must also continue to meet the requirements of clause 8.820.211(2) at the time of this decision. Having regard to the evidence before the Tribunal, the Tribunal is satisfied that the visa applicant continues to meet the requirements of clause 820.211(2), hence satisfying the criteria in clause 820.221. Therefore, the Tribunal finds that the visa applicant meets the requirements of clauses 820.211(2) and 820.221.Are the additional criteria for a de facto relationship met? Persons claiming to be in a de facto relationship for a partner visa must also meet the additional criteria in reg 2.03A. Both members of the couple must be at least 18 years old: reg 2.03A(2). In this case, at the time of application, the visa applicant and the sponsor were at least 18 years old.

Ratio Decidendi

Legal Principle Established

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(2) of Schedule 2 to the Regulations·cl 820.221 of Schedule 2 to the Regulations·reg 2.03AEdward HowardMemberATTACHMENT - 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).