Brown (Migration) - [2019] AATA 3130

Brown (Migration) [2019] AATA 3130 (17 June 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Enesi Brown
CASE NUMBER:  1838193
DIBP REFERENCE(S):  OSF2008006151
MEMBER:Frances Simmons
DATE:17 June 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the application for a Partner (Migrant) (Class BC) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 100 (Spouse) visa:
·cl.100.211(2)(b) and (c) of Schedule 2 to the Regulations

Statement made on 17 June 2019 at 6:29pm
CATCHWORDS
MIGRATION – Federal Circuit Court Remittal – Partner (Migrant) (Class BC) – Subclass 100 (Spouse) – application was not received within prescribed timeframe – notification was defective – Tribunal erred in finding that the review application was lodged out of time –applicant and sponsor have a mutual commitment – genuine spousal relationship – decision under review remitted

LEGISLATION
Administrative Appeals Tribunal Act (Cth), s 29
Migration Act 1958 (Cth), ss 5F, 65, 66, 360(2)(a)
Migration Regulations 1994 (Cth), Schedule 2 cl 100.211, r 1.15A
CASES

Beni v MIBP [2018] FCAFC 228
Brown v Minister for Immigration and Border Protection [2018] FCA 1643
Brown v MHA (No.2) [2018] FCA 1787
DFQ17 v Minister for Immigration and Border Protection [2019] FCAFC 64
Grey v MIBP [2018] FCCA 1564
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 Immigration on 14 December 2016 to refuse to grant the visa applicant a Partner (Migrant) (Class BC) visa under s.65 of the Migration Act 1958 (the Act).
The applicant applied for the visa on 2 October 2008 on the basis of his relationship with his sponsor. At that time, Class BC contained two subclasses: Subclass 100 (Spouse) and 110 (Interdependency). The applicant has made claims only for the Subclass 100 visa and does not claim to be in an interdependent relationship as required by Subclass 110.
The criteria for the grant of a Subclass 100 visa are set out in Part 100 of Schedule 2 to the Migration Regulations 1994 (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. Relevantly to this matter, the primary criteria include cl.100.221.
For the following reasons, the Tribunal has concluded that the Tribunal has jurisdiction to consider this matter and that the matter should be remitted for reconsideration. In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of Mr Brown on the basis of the material before it, pursuant to s.360(2)(a) of the Act.
THE JURISDICTIONAL ISSUE
This case has a long and unfortunate history.
The applicant applied for the Partner (Provisional) (UF 309) visa and Partner (Migrant) (BC 100) visa on 2 October 2008, nominating Mrs Roselyn Upu Brown as the sponsor. This application for Partner (Provisional) (UF 309) visa…

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.

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Details

Case: [2019] AATA 3130
Decision Date: 17 June 2019

CaseChat Overview and Summary

This matter concerned an application for review by Mr Brown regarding a Partner (Migrant) (Class BC) visa, specifically a Subclass 100 (Spouse) visa. The primary dispute revolved around whether the applicant and his sponsor were in a genuine and ongoing spousal relationship, as required by the Migration Regulations 1994. The decision was made by Frances Simmons, a Member of the Tribunal.

The legal issues before the Tribunal were whether the applicant and his sponsor continued to be in an ongoing and genuine spousal relationship, and whether they met the requirements for a married relationship under clause 100.221 of Schedule 2 to the Regulations. This involved assessing whether the parties were validly married and whether they demonstrated a mutual commitment to a shared life as husband and wife, to the exclusion of all others, that the relationship was genuine and continuing, and that they lived together or did not live separately and apart on a permanent basis.

The Tribunal found that the parties were validly married in Brisbane on 18 August 2008. Despite initial difficulties in obtaining supporting evidence, the Tribunal considered additional evidence provided by the applicant and his sponsor. This evidence included the birth certificate of their child, Alexander Brown, tenancy agreements, correspondence from government departments and schools listing them at the same address, and photographs. The Tribunal also noted that the delegate had made a "no evidence" decision, highlighting attempts to contact the applicant's former migration agent. The Tribunal concluded that the parties had a mutual commitment and a genuine spousal relationship.

Consequently, the Tribunal remitted the application for a Partner (Migrant) (Class BC) visa for reconsideration by the Minister. The Tribunal directed that the applicant met the criteria specified in clauses 100.221(2)(b) and (c) 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 Tribunal finds that Mr Brown has made a valid application for review and the Tribunal has jurisdiction in this case. CONSIDERATION OF CLAIMS AND EVIDENCE The issue in the present case is whether the applicant and his wife continue to be in an ongoing and genuine spousal relationship. Whether the parties are in a ‘spouse’ relationship Clause 100.221 requires that the applicant meet one of five alternative requirements. These include cl.100.221(2) and (2A) which require, amongst other things, that at the time of this decision, the applicant is the spouse of the ‘sponsoring spouse’. Unless the applicant was granted a Subclass 309 visa by Ministerial intervention, the ‘sponsoring spouse’ is the person who was specified as the applicant’s spouse or intended spouse in the related Subclass 309 application. In the present case the applicant claims to be the spouse of the sponsor, a ‘sponsoring spouse’ within the meaning of that term. ‘Spouse’ is defined in r.1.15A of the Regulations and provides that a person is the spouse of another where the two persons are either in a married or de facto relationship. Persons are in a de facto relationship if they are not validly married to each other. Persons in a married relationship must be married to each other under a marriage that is valid for the purposes of the Act, there must be a mutual commitment to a shared life as husband and wife to the exclusion of all others, the relationship must be genuine and continuing, and the couple must live together, or not live separately and apart on a permanent basis: r.1.15A(1A). In forming an opinion as to these matters, regard must be had to all of the circumstances of the relationship. This includes evidence of the financial and social aspects and the nature of the parties’ household and their commitment to each other as set out in r.1.15A(3), which is extracted in the attachment to this decision.Are the parties validly married? If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. The Tribunal finds that the parties married in Brisbane on 18 August 2008. The Tribunal has viewed the couple’s marriage certificate and finds they were married to each other under a marriage that is valid for the purposes of the Act as required by s.5F(2)(a) of the Act. On the evidence, the parties were married to each other under a marriage that is valid for the purposes of the Act as required by r.1.15A(1A)(a).Are the other requirements for a spousal relationship met? The delegate made, in essence, a ‘no evidence’ decision, documenting in the decision the attempts that were made to contact the applicant’s former migration agent in an ultimately futile attempt to obtain supporting evidence of the applicant’s relationship with his sponsor. On 4 June 2019 the Tribunal wrote to the applicant and requested information about the applicant’s spousal relationship. The Tribunal has considered the additional evidence provided by the applicant and his sponsor, including the birth certificates for their child, Alexander Brown, who was born in Logan Hospital, Meadowbrook in Queensland on 8 March 2011 and which records that his father is the applicant and his mother is the sponsoring partner. Further evidence submitted to the Tribunal includes: statements from the sponsor and visa applicant dated 22 April 2019; the birth certificate of Alexander Brown; Mrs Brown’s social security records; tenancy agreement signed by the sponsor and the applicant, dated 24 March 2016; a letter from Centerlink, dated 27 January 2017, explaining why the sponsor was paid at a single rate notwithstanding that she had a partner; extracts of Tribunal case 0904890; photographs of the applicant, Mrs Brown and their son Alexander along with other members of their family; a letter from Dakabin State School, dated 10 June 2019, stating that Alexander Brown is currently enrolled in this school and his parents are listed as Mr Enesi Brown and Mrs Roselyn Brown; copies of the applicant’s current drivers’ license and current drivers’ license of Mrs Brown recording that the parties reside at the same address in Dakabin; recent correspondence from a Queensland government department addressed to Mr Enesi and letters addressed to the sponsor showing the same address in Dakabin. Financial aspects of the relationship

Decision

Reasons for decision

Given the findings above, the appropriate course is to remit the application to the Minister to consider the remaining criteria for a Subclass 100 visa.DECISION The Tribunal remits the application for a Partner (Migrant) (Class BC) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 100 (Spouse) visa:·cl.100.221(2)(b) and (c) of Schedule 2 to the Regulations.Frances SimmonsMemberATTACHMENT - Extract from Migration Regulations 19941.15ASpouse…(3)In forming an opinion whether 2 persons are in a married relationship, or a de facto relationship, in relation to an application for:(ad)a Partner (Migrant) (Class BC) visa; or(ae)a Partner (Provisional) (Class UF) visa; or(af)a Partner (Residence) (Class BS) visa; or(ag)a Partner (Temporary) (Class UK) visa;the Minister must have regard to all of the circumstances of the relationship, including, in particular:(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 party to the relationship owes any legal obligation in respect of the other; and(v) the basis of any sharing of day‑to‑day household expenses;(b)the nature of the household, including:(i) any joint responsibility for care and support of children, if any; and(ii) the parties’ living arrangements; and(iii) any sharing of responsibility for housework;(c)the social aspects of the relationship, including:(i) whether the persons represent themselves to other people as being married or in a de facto relationship with each other;(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;(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)In forming an opinion whether 2 persons are in a married relationship, or a de facto relationship, in relation to an application for a visa of a class other than a class specified in paragraph (3) (ad), (ae), (af) or (ag), the Minister may have regard to any of the factors set out in subregulation (3).(5)If 2 persons have been living together at the same address for 6 months or longer, that fact is to be taken to be strong evidence that the relationship is genuine and continuing, but a relationship of shorter duration is not to be taken not to be genuine and continuing only for that reason.

Ratio Decidendi

Legal Principle Established

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