Armstrong (Migration) - [2024] AATA 4011

Armstrong (Migration) [2024] AATA 4011 (10 October 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mrs Rachel Ruth Rivera Armstrong
REPRESENTATIVE:  Mrs Marimi Tanag (MARN: 1386887)
CASE NUMBER:  2102347
HOME AFFAIRS REFERENCE(S):          BCC2019/3257701
MEMBER:Brygyda Maiden
DATE:10 October 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:
·Reg 1.20J for the purposes of cl 820.221(4) of Schedule 2 to the Regulations

Statement made on 10 October 2024 at 1:51pm

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – sponsorship limitation – two previous sponsorships resulting in grant of visa – compelling circumstances affecting sponsor – valid marriage, length of relationship and newborn child – child’s physical health and treatment – older step-children – support agreement for child with second wife – no assessment of genuine and continuing relationship – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.20J(1)(a), (2), Schedule 2 820.211(2)(a), (c), 820.221(4)
CASES
Babicci v MIMIA [2004] FCA 1645; Babicci v MIMIA [2005] FCAFC 77
Nagaki v Minister for Immigration [2016] FCCA 1070
Hneidi v MIAC 182 FCR 115

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 28 June 2019 on the basis of her relationship with her 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.
The delegate’s decision states the following: “[a]t the time you lodged your Partner visa application on 28 June 2019, Departmental records confirm that your sponsor had two previous sponsorships, which were commenced on 3 March 2005 and 2 February 2012 respectively. Both sponsorships had resulted in the grant of a Partner visa. Therefore, regulation 1.20J(1)(a) is not met.” The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl 820.221(4) of Schedule 2 to the Regulations because the delegate was not satisfied that there were compelling reasons to waive reg 1.20J(2). The delegate made clear, that the genuineness of the parties’ relationship under regulation 820.211(2) of Schedule 2 to the Regulations was not being assessed.
The applicant has sought review of the delegate’s on 26 February 2021 and in doing so submitted a copy of the notification and decision from the Department.
The applicant appeared before the Tribunal on 10 September 2024 to give evidence and present arguments. The Tribunal also received oral…

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 Armstrong (Migration)

Details

AGLC: Armstrong (Migration) [2024] AATA 4011
Case: [2024] AATA 4011
Decision Date: 10 October 2024

CaseChat Overview and Summary

This decision concerned an application for a Partner (Temporary) (Class UK) visa, Subclass 820, before the Administrative Appeals Tribunal. The applicant sought review of a decision that had not been detailed in the provided text, but the Tribunal was required to consider the sponsorship of the applicant by their partner. The central issue revolved around a sponsorship limitation, as the sponsor had previously been involved in two other sponsorships that resulted in visa grants.

The Tribunal was tasked with determining whether there were compelling circumstances affecting the sponsor that would justify overriding the sponsorship limitation. This required an assessment of the evidence presented regarding the sponsor's circumstances, including the nature of their current relationship, the existence of a newborn child, and the impact of these factors on the sponsor. The Tribunal also needed to consider the implications of previous sponsorships and any agreements in place concerning the sponsor's child from a prior relationship.

In its reasoning, the Tribunal found that the cumulative evidence, particularly the existence of a biological child named Kaia, constituted compelling circumstances affecting the sponsor. Consequently, the Tribunal was satisfied that the sponsorship could be approved under regulation 1.20J(2) of the Migration Regulations 1994, meaning the applicant met the requirements of clause 820.221(4). As a result, the Tribunal remitted the application to the Minister for consideration of the remaining criteria for the Subclass 820 visa, with the direction that the sponsorship requirements had been met.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

When all the evidence is considered cumulatively, the Tribunal accepts that there are compelling circumstances (the major one being the parties’ biological child Kaia), that may affect the sponsor. Because the Tribunal is satisfied that there are compelling circumstances affecting the sponsor, the Tribunal approves the sponsorship of the applicant in accordance with reg 1.20J(2). Therefore, the applicant meets the requirements of cl 820.221(4). 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, with the direction that the applicant meets the following criteria for a Subclass 820 (Partner) visa:·Reg 1.20J for the purposes of cl 820.221(4) of Schedule 2 to the Regulations.Brygyda MaidenMember

Ratio Decidendi

Legal Principle Established

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