Belevski (Migration) - [2025] ARTA 394

BELEVSKI (MIGRATION) [2025] ARTA 394 (26 MARCH 2025)
DECISION AND
REASONS FOR DECISION
Applicant:Mr Borce Belevski
Visa Applicant:  Mrs An Hong Ngoc Nguyen
Respondent:  Minister for Immigration and Multicultural Affairs
Tribunal Number:  2212472

Tribunal:Senior Member M Bourke
Place:Melbourne
Date: 26 March 2025
Decision:The Tribunal sets aside the decision under review and remits the application for a Partner (Provisional) (Class UF) visa for reconsideration, in accordance with the order that the visa applicant meets the following criteria for a Subclass 309 (Partner (Provisional)) visa:
- cl.309.211 and cl.309.221 of Schedule 2 to the Regulations.

Statement made on 26 March 2025 at 4:48pm
CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) –application with previous partner refused and relationship ceased – genuine and continuing relationship – validly married – applicant returned to home country and visitor visa applications refused – review applicant’s family commitments and fear of flying – limited evidence of financial, household and social aspects of relationship while living in different countries – nature of commitment – statutory declarations from relatives and friend, and documentation – decision made without hearing necessary – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5F(2), 65
Migration Regulations 1994 (Cth), r 1.15A(3), Schedule 2, cls 309.211(2), 309.221
Administrative Review Tribunal Act 2024 (Cth), s 106(3)
CASE
He v MIBP [2017] FCAFC 206
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 14 July 2022 to refuse to grant the visa applicant a Partner (Provisional) (Class UF) Subclass 309 visa under s.65 of the Migration Act 1958 (Cth) (the Act).
The visa applicant applied for the visa on 2 August 2021 on the basis of her relationship with the sponsor, the review applicant. At that time, Class UF contained only one subclass, the Subclass 309 (Partner (Provisional)). The criteria for the grant of this visa are set out in Part 309 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The primary criteria must be satisfied by at least one applicant, in this review that is the visa applicant.
The delegate refused to grant the visa on the basis that the delegate was not satisfied that the evidence and information provided demonstrated that the visa applicant was the spouse of the sponsoring partner as defined in s.5F of the Act.
The review applicant appeared before the Tribunal on 27 February 2025 by video connection to give evidence and present arguments. The visa applicant was unable to join the hearing by video. The Tribunal granted a postponement of the hearing, to give the visa applicant the opportunity to attend the hearing by video connection. The Tribunal discussed with the review applicant and his representative that it would be of assistance if the review applicant provided current submissions and information in relation to the review.
The Tribunal has considered the information and evidence provided by the applicant 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 Belevski (Migration)

Details

AGLC: Belevski (Migration) [2025] ARTA 394
Case: [2025] ARTA 394
Decision Date: 26 March 2025

CaseChat Overview and Summary

The case of Belevski involved an applicant seeking a Partner (Provisional) (Class UF) visa under subclass 309. The applicant's previous relationship had ended in divorce, and a prior visa application was refused. The relationship in question had commenced after both parties were divorced, and the applicant returned to her home country. The Tribunal was tasked with reviewing the decision by the Department of Home Affairs that the applicant did not meet the criteria for the visa due to insufficient evidence of a genuine and continuing relationship.

The legal issues before the Tribunal involved determining whether the relationship between the applicant and the review applicant was genuine and ongoing, and whether the decision to refuse the visa was justified. This required an assessment of the provided evidence, including statutory declarations, financial documents, and communication records. The Tribunal also had to consider whether the decision-maker properly exercised their discretion and whether a hearing was necessary.

In reviewing the evidence, the Tribunal noted the limited financial, household, and social evidence of the relationship while the parties lived in different countries. However, the Tribunal found that the statutory declarations, documentation, and other evidence presented were sufficient to demonstrate a genuine relationship. The Tribunal was also mindful of the applicant's family commitments and her fear of flying, which contributed to the limited evidence. The Tribunal concluded that the decision to refuse the visa was not supported by the evidence and that the decision-maker should have considered a hearing before making the decision. Consequently, the Tribunal set aside the decision and remitted the application for reconsideration.

The Tribunal's final order was to set aside the decision under review and remit the application for a Subclass 309 visa to the Minister for reconsideration, with the condition that the applicant meets the criteria outlined in cl.309.211 and cl.309.221 of Schedule 2 to the Regulations.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The applicant provided the Tribunal with a copy of the Department’s decision record, dated 14 July 2022. The Tribunal has considered the information in the Department’s decision record, which refers to the limited evidence of the relationship, and also the visa applicant’s visa history. The delegate recorded his concern that the relationship may be contrived to facilitate the visa applicant gaining residence in Australia. The Tribunal is satisfied the visa applicant had made a previous partner visa application in relation to a marriage with an Australian citizen or Australian permanent resident, and that visa application was refused and the marriage ended in divorce. This is an issue that the Tribunal has also considered prior to making its decision in this review. The review applicant’s representative provided submissions to the Tribunal addressing the concerns of the visa applicant’s previous visa history, and provided submissions, information and evidence to demonstrate the relationship between the visa applicant and the review applicant is genuine and continuing.Consideration of the evidence before the Tribunal The visa applicant had provided documents to the Department which included the application for the visa which was lodged online on 2 August 2021, the sponsorship form which was lodged online on 20 August 2021, registered Victorian marriage certificate confirming the parties married on 25 December 2020, a relationship statement of the visa applicant, a handwritten statement of the review applicant, a copy of the review applicant’s divorce in his previous relationship made 28 June 2018, a copy of the visa applicant’s divorce in her previous relationship made 2 July 2020, statutory declaration from the review applicant’s cousin dated 13 May 2020, statutory declaration from the visa applicant’s niece dated 4 July 2021, statutory declaration from a friend of the visa applicant dated 28 December 2021, statutory declaration from the review applicant’s sister-in-law dated 22 December 2021, confirmation of a joint bank account opened 11 November 2021 (no transactions), collection of photos, and collection of financial documents including the review applicant’s utility bills, rates notice, and owners corporation invoice, a booking confirmation for a week in joint names dated January 2021, and some screenshots of video calls and call records and messages for the period October to November 2021. The review applicant provided the Tribunal with information including a medical report in relation to the review applicant dated 11 September 2022, a counsellor report in relation to the review applicant dated 17 October 2023, confirmation of child support payments to the review applicant’s previous wife, and a request for priority processing. In response to an invitation to provide further information in August 2024, the review applicant provided the Tribunal with a statement from the review applicant, a statutory declaration from the review applicant’s sister dated 13 August 2024, a statutory declaration from the partner of the visa applicant’s niece dated 17 August 2024, a further statutory declaration from the review applicant’s cousin dated 13 August 2024, evidence of 13 money transfers to the visa applicant over the period 4 September 2021 to 12 June 2024 all in the amount of $506 or close to this amount, except for one money transfer in the amount of $1005.10 (the money transfers do not record who the money was transferred from), communication records (some of which are not translated), series of text messages (some of which are very brief e.g. “good morning”).

Decision

Reasons for decision

Given the findings above, the appropriate course is to set aside the decision under review and remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 309 visa.DECISION The Tribunal sets aside the decision under review and remits the application for a Partner (Provisional) (Class UF) visa for reconsideration, in accordance with the order that the visa applicant meets the following criteria for a Subclass 309 (Partner (Provisional)) visa:– cl.309.211 and cl.309.221 of Schedule 2 to the Regulations.Date(s) of hearing: N/A Representative for the Applicant: Miss Belinda Christie (MARN: 1682855)

Ratio Decidendi

Legal Principle Established

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