Bui (Migration) - [2021] AATA 4894

Bui (Migration) [2021] AATA 4894 (22 December 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ms Thi Bach Ngoc Bui
REPRESENTATIVE:  Mr Gareth John Lewis
CASE NUMBER:  1821994
HOME AFFAIRS REFERENCE(S):          BCC2017/1638502
MEMBER:Russell Matheson
DATE:22 December 2021
PLACE OF DECISION:  Sydney
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(c) of Schedule 2 to the Regulations and;
·cl 820.221(4) of Schedule 2 to the Regulations.

Statement made on 22 December 2021 at 11:12am
CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) – Subclass 820 (Partner) – sponsorship limitation – two previous sponsorships – compelling reasons to waive limitation – valid marriage and genuine long-term relationship – relationship with minor child from previous marriage – business, community and cultural ties – hardship if visa cancelled – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.20J, Schedule 2, cls 820.211(c), 820.212(2)(c), 820.221(4)
CASE
Babicci v MIMIA [2004] FCA 1645; [2005] FCAFC 77
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 is a female national of Vietnam born in September 1980. She applied for the visa on 8 May 2017 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. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria.
The applicant provided the Tribunal with a copy of the primary decision showing that the delegate refused to grant the visa on the basis that the applicant did not satisfy cl 820 212(2)(c) which requires the applicant to be sponsored by the sponsor at the time of application, and cl 820.221(4) which requires the sponsorship to continue; to have been approved by the Minister and be still in force.
The delegate refused to grant the visa because the sponsor did not satisfy the sponsorship requirements.
Due to the COVID-19 pandemic, the Tribunal did not hold an in-person hearing. Rather, on 21 December 2021, the applicant and sponsor appeared, by video, before the Tribunal to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages. The interpreter attended by video. The representative Mr Lewis an Australian Legal Practitioner (No:5510887) also attended the hearing by video.
For the following reasons, the Tribunal has concluded that the matter should…

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 Bui (Migration)

Details

AGLC: Bui (Migration) [2021] AATA 4894
Case: [2021] AATA 4894
Decision Date: 22 December 2021

CaseChat Overview and Summary

This matter concerned an application for a Partner (Temporary) (Class UK) visa, Subclass 820. The applicant sought review of a delegate's decision to refuse the visa application. The refusal was based on the sponsor having previously successfully sponsored two spousal partners to Australia, rendering them ineligible to sponsor again unless compelling reasons existed to waive this limitation. The Tribunal found the applicant's and sponsor's evidence to be genuine and credible, establishing a valid marriage and a genuine long-term relationship.

The primary legal issue before the Tribunal was whether there were compelling reasons to waive the sponsorship limitation imposed on the sponsor, who had previously sponsored two partners. The Tribunal was required to determine if the current relationship met the criteria for sponsorship approval, specifically considering the sponsor's history and the nature of the present relationship. The Tribunal also had to assess whether the applicant met the sponsorship requirements under clause 820.211(2)(c) and clause 820.221(4) of Schedule 2 to the Regulations.

The Tribunal reasoned that while the sponsor had a history of two previous successful sponsorships, the evidence presented regarding the current relationship, including its genuine and long-term nature, the parties' knowledge of each other's families, their financial and business arrangements, and community ties, demonstrated compelling reasons to waive the sponsorship limitation. The Tribunal found that the applicant met the sponsorship requirements under the relevant clauses of the Regulations.

Consequently, the Tribunal remitted the application for reconsideration by the Minister, with a direction that the applicant met the criteria under cl 820.211(2)(c) and cl 820.221(4) of Schedule 2 to the Regulations. This meant the Minister was to consider the remaining criteria for the Subclass 820 visa.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.Background The sponsor arrived in Australia in 1990 for a family reunion. The sponsor obtained permanent residency in 1992. The sponsor sponsored his first wife in 1992 and she was granted a partner visa and obtained permanent residence. The sponsor had a child (daughter) with his first wife in 1997. In 2005 the sponsor’s relationship with his fist wife broke down and they divorced. In January 2006 the sponsor married his second wife, he sponsored her partner visa, and she was granted permanent residency in Australia. The sponsor had a child (son) with his second wife in 2008. The sponsor separated from his second wife in 2011 and divorced her in 2013. The sponsor claims to have met the applicant in June/July 2016 and formed a romantic relationship and they married in May 2017 and the applicant was granted a Bridging Visa.CONSIDERATION OF CLAIMS AND EVIDENCE The Tribunal had before it a copy of the Department’s file containing the visa application, sponsorship form, and evidence provided to the Department and Tribunal in relation to the application. The applicant provided the Tribunal with a copy of the delegate’s decision. The delegate refused the application because it says the sponsor has previously successfully sponsored two spousal partners to Australia and so is ineligible to be a sponsor. The delegate found there were no compelling reasons to waive the sponsorship limitation. The applicant and sponsor gave their oral evidence separately and jointly. The parties provided written and oral evidence about the formation of their relationship, their knowledge of each other’s family background and relationship histories, finances, assets, business arrangements, friends, and household arrangements. The Tribunal found their evidence to be genuine and credible. The Tribunal accepts their oral evidence on that basis. The Tribunal has considered their oral evidence together with the documentary evidence to reach the findings below. The delegate has not made an assessment of the evidence in respect of the requirement that the applicant is required to be the spouse or de facto partner of the sponsor. Having regard to the President’s Direction Conducting Migration and Refugee Reviews the Tribunal will restrict its review to the matters decided by the delegate. The issue in the present case is whether the sponsorship of the applicant’s visa should be approved because there are compelling reasons affecting the sponsor. Is the applicant sponsored? Clause 820.211 requires at the time of application the applicant meets one of several alternative sub criteria. These include cl 820.211(2)(c) which requires that the applicant was, at the time of application, sponsored by the sponsor, where such person has turned 18; or where they have not, by the sponsor’s parent or guardian who has turned 18 and is either an Australian citizen, permanent resident, or eligible New Zealand citizen (as defined in reg 1.03 of the Regulations).

Evidence

Evidence Before The Court

The sponsor claims to have met the applicant in June/July 2016 and formed a romantic relationship and they married in May 2017 and the applicant was granted a Bridging Visa.CONSIDERATION OF CLAIMS AND EVIDENCE The Tribunal had before it a copy of the Department’s file containing the visa application, sponsorship form, and evidence provided to the Department and Tribunal in relation to the application. The applicant provided the Tribunal with a copy of the delegate’s decision. The delegate refused the application because it says the sponsor has previously successfully sponsored two spousal partners to Australia and so is ineligible to be a sponsor. The delegate found there were no compelling reasons to waive the sponsorship limitation. The applicant and sponsor gave their oral evidence separately and jointly. The parties provided written and oral evidence about the formation of their relationship, their knowledge of each other’s family background and relationship histories, finances, assets, business arrangements, friends, and household arrangements. The Tribunal found their evidence to be genuine and credible. The Tribunal accepts their oral evidence on that basis. The Tribunal has considered their oral evidence together with the documentary evidence to reach the findings below. The delegate has not made an assessment of the evidence in respect of the requirement that the applicant is required to be the spouse or de facto partner of the sponsor. Having regard to the President’s Direction Conducting Migration and Refugee Reviews the Tribunal will restrict its review to the matters decided by the delegate. The issue in the present case is whether the sponsorship of the applicant’s visa should be approved because there are compelling reasons affecting the sponsor. Is the applicant sponsored? Clause 820.211 requires at the time of application the applicant meets one of several alternative sub criteria. These include cl 820.211(2)(c) which requires that the applicant was, at the time of application, sponsored by the sponsor, where such person has turned 18; or where they have not, by the sponsor’s parent or guardian who has turned 18 and is either an Australian citizen, permanent resident, or eligible New Zealand citizen (as defined in reg 1.03 of the Regulations). A copy of the applicant’s passport is on the Department’s file. The Tribunal finds the applicant has turned 18. A copy of the sponsor’s passport is on the Department’s file. The Tribunal finds the sponsor is an Australian citizen. The Department’s file contains the sponsorship Form 40SP lodged with the application and signed by the sponsor. The Tribunal finds that she completed the requisite sponsorship form and the applicant was, at the time of application, sponsored by the sponsor. Therefore, at the time of application sponsorship the requirement in, cl 820.211(2)(c) is met.Should the sponsorship be approved? At the time of the decision, cl 820.221(4) requires that the sponsorship mentioned in cl 820.211(2)(c) continues and has been approved by the Minister and is still in force.

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, with the direction that the applicant meets the following criteria for a Subclass 820 (Partner) visa:·cl 820.211(2)(c) of Schedule 2 to the Regulations; and·cl 820.221(4) of Schedule 2 to the Regulations.Russell MathesonMember

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.