Carman (Migration) - [2023] AATA 3822

Carman (Migration) [2023] AATA 3822 (3 November 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr William Carman
CASE NUMBER:  1913786
HOME AFFAIRS REFERENCE(S):          BCC2017/3295059
MEMBER:Edward Howard
DATE:3 November 2023
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(1) of Schedule 2 to the Regulations
·reg 2.03A

Statement made on 03 November 2023 at 4:01pm

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – Schedule 3 criteria – factors beyond applicant’s control – waiver of requirement – compelling reasons – imminent birth of child – long-standing relationship – genuine de facto relationship – financial aspects – nature of the household – social aspects – nature of the commitment – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5CB, 65, 360
Migration Regulations 1994 (Cth), rr 1.09A, 2.03; Schedule 2, cls 820.211, 820.221; Schedule 3, Criterion 3001, 3003, 3004
CASES
Babicci v MIMIA (2005) 141 FCR 285
He v MIBP [2017] FCAFC 206
MZYPZ v MIAC [2012] FCA 478
Waensila v MIBP [2016] FCAFC 32
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 review applicant a Partner (Temporary) (Class UK) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The review applicant applied for the visa on 8 September 2017 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 review applicant did not satisfy cl 820.211(2).
In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the review applicant on the basis of the material before it, pursuant to s 360(2)(a) of the Act.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
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…

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 Carman (Migration)

Details

AGLC: Carman (Migration) [2023] AATA 3822
Case: [2023] AATA 3822
Decision Date: 3 November 2023

CaseChat Overview and Summary

This matter concerned an application for a Partner (Temporary) (Class UK) visa, subclass 820, where the applicant sought a waiver of Schedule 3 criteria. The applicant contended that compelling reasons, specifically the imminent birth of their child and a long-standing relationship, justified the waiver. The Tribunal was required to determine whether these circumstances constituted "compelling reasons" for a waiver, and whether the applicant met the criteria for a genuine de facto relationship.

The Tribunal considered the Explanatory Statement to the Migration Regulations (Amendment) 1996 NO. 75, which indicated that reasons for a waiver should be of a "strongly compassionate nature." Clause 10.1 of Schedule 2 provided examples, including long-standing relationships of two years or more. The Tribunal found that the parties' relationship, which had existed for over seven years, coupled with the imminent birth of their child, presented highly compelling and compassionate circumstances affecting the interests of Australian citizens, thus justifying a waiver of the Schedule 3 requirements. Furthermore, the Tribunal assessed the evidence regarding the financial aspects of the relationship, the nature of the household, and the social aspects, finding that the parties pooled financial resources, shared household responsibilities, and had lived together continuously since 2017, demonstrating a genuine de facto relationship.

Consequently, the Tribunal remitted the application for the Partner (Temporary) (Class UK) visa to the Minister. The direction was that the review applicant met the criteria specified in cl 820.211(2), cl 820.221(1) of Schedule 2 to the Regulations, and reg 2.03A, allowing for consideration of the remaining visa criteria.

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

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 review applicant meets the following criteria for a subclass 820 (Partner) visa:·cl 820.211(2) of Schedule 2 to the Regulations·cl 820.221(1) 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).

Ratio Decidendi

Legal Principle Established

Additionally, in considering the issue of ‘compelling reasons’, the Tribunal has had regard to the Migration Regulations (Amendment) 1996 NO. 75 and in particular to the Explanatory Statement. Clause 10 of Schedule 2 gives examples of circumstances in which a waiver may be justified. Clause 10.1 states that the reasons must be of a “strongly compassionate nature” and refers to such reasons as including those ‘where the applicant and his or her nominator are already in a long-standing relationship which has been in existence for two years or longer’. In the present case, the parties are already in a long-standing relationship which has been in existence for a period of more than seven years. Having considered all the evidence, the Tribunal finds that there are highly compelling and compassionate circumstances that affect the interests of Australian citizens that justify the waiver of the requirements of PIC 3004. Are the other requirements for a de facto relationship met?Financial aspects of the relationship – including joint ownership of assets; joint liabilities; extent of pooling of financial resources; any legal obligations owed to the other party; any sharing of day-to-day household expenses. The parties have provided the Tribunal with extensive evidence relating to the financial aspects of their relationship. The Tribunal is in receipt of bank statements from their Commonwealth Bank joint account. The evidence also discloses the sharing of household and pooling of their resources for the payment of regular expenses from their accounts. The parties have lived at the same residence in Robina together since 2017. The parties have provided documentation attesting to the joint tenancy and their continued residence at the property is evidenced by correspondence from the managing agent. The Tribunal is satisfied on the evidence of the parties, that they pool their resources for day-to-day household expenses and other financial commitments and that they have the joint liability attached to the joint tenancy of their residence. The Tribunal is satisfied that both parties have contributed to the financial aspects of the relationship. The Tribunal weighs the financial aspects of relationship in favour of the review applicant.Nature of the household – including any joint responsibility for care and support of children; parties' living arrangements; and any sharing of housework. As noted above, the parties commenced living together at the residence of a family friend of the sponsor and then at the residence of the sponsor’s parents. The parties eventually commenced renting a property together in Robina, Queensland in 2017. The parties have lived together, continuously, at this address over a period of more than six years. The Tribunal is satisfied that the parties’ household and living arrangements are consistent with that of a de facto couple in a genuine relationship. The Tribunal weighs consideration of the household aspects of the relationship in favour of the review applicant.Social aspects of the relationship – including whether parties represent themselves to other people as being married to each other; the opinion of friends and acquaintances about the nature of the relationship; and any basis on which the persons plan and undertake joint social activities.