Chanpen (Migration) - [2024] AATA 2837

Chanpen (Migration) [2024] AATA 2837 (5 July 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Atiporn Chanpen
CASE NUMBER:  2415979
HOME AFFAIRS REFERENCE(S):          BCC2016/3116092
MEMBER:Alison Mercer
DATE:5 July 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant an Employer Nomination (Permanent) visa.

Statement made on 5 July 2024 at 2:54pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Federal and Family Circuit Court remittal – ‘higher education institution’ – secondary applicant – separated with the primary applicant – member of a family unit – no response to s.359A letter – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5CB, 65, 359C, 360
Migration Regulations 1994 (Cth), rr 1.09A, 1.12; Schedule 2, cl 186.311
CASES
Yang v MIAC [2010] FMCA 890
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 Employer Nomination (Permanent) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 20 September 2016. The primary visa applicant was the applicant’s de facto spouse, Alisa Sampantarat. The delegate refused to grant the visas on 9 October 2018 on the basis that the primary visa applicant did not have the required level of English proficiency and was not exempt from having to have this, and that the applicant did not satisfy the requirements of cl 186.311 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) requiring him to be a member of the family unit of a person who held a subclass 186 visa. Clause 186.311 of Schedule 2 relevantly requires the applicant to be a member of the family unit of the primary visa applicant at the time of the application and at the time of the decision.
The applicants lodged an application for review of these decisions with the Tribunal (differently constituted) on 17 November 2018. They attended a Tribunal hearing on 29 October 2019. On 4 November 2019, the Tribunal made a decision to refuse to grant the applicants subclass 186 visas on the same basis as the delegate (that the primary visa applicant did not satisfy the English requirements and that the applicant was not a member of the family unit of a person who held a subclass 186 visa).
The applicants sought judicial review of the Tribunal’s decision on 28 November 2019. On 25 August 2023, the Federal and Family Circuit Court of Australia remitted the Tribunal’s decision by consent to be heard according to law by a new Tribunal Member. The notes provided indicated that:
The Minister accepts that the decision of the Tribunal is affected by jurisdictional error. The Tribunal applied the wrong Ministerial instrument: it should have applied IMMI 17/058, rather than IMMI 15/083, for the purpose of assessing whether the applicant was a person…

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

AGLC: Chanpen (Migration) [2024] AATA 2837
Case: [2024] AATA 2837
Decision Date: 5 July 2024

CaseChat Overview and Summary

This matter concerned an appeal by an applicant for an Employer Nomination (Permanent) visa (Subclass 186) to the Administrative Appeals Tribunal. The applicant sought to be recognised as a member of the family unit of the primary visa applicant, Alisa Sampantarat. The Tribunal was required to determine whether the applicant satisfied the criteria for being a member of the family unit, specifically whether he was the de facto partner of the primary applicant.

The central legal issue before the Tribunal was the interpretation and application of the definition of "member of the family unit" as provided in regulation 1.12 of the Migration Regulations 1994, and the definition of "de facto partner" under section 5CB of the Migration Act 1958. The Tribunal had to consider whether the applicant and the primary visa applicant were in a genuine and continuing de facto relationship, taking into account the circumstances outlined in regulation 1.09A, which include financial aspects, the nature of the household, social aspects, and the nature of their commitment to each other.

The Tribunal's reasoning was based on the uncontradicted evidence provided by the primary applicant, Alisa Sampantarat. This evidence indicated that the applicant and Ms. Sampantarat had permanently separated in 2022, no longer lived together, and had ceased to have a mutual commitment to a shared life to the exclusion of all others. Consequently, the Tribunal found that their relationship was no longer continuing and that the applicant did not meet the definition of a de facto partner under section 5CB of the Act and regulation 1.09A. As there was no other basis for the applicant to be considered a member of the family unit under regulation 1.12, the Tribunal affirmed the decision not to grant the visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.CONSIDERATION OF LAW, CLAIMS AND EVIDENCE The issue in this review is whether the applicant is a member of the family unit of the primary visa applicant, Alisa Sampantarat, and satisfies cl 186.311. Section 5(1) of the Act provides that ‘member of the family unit’ of a person has the meaning given by the Migration Regulations 1994 (the Regulations). Regulation 1.03 provides ‘member of the family unit’ has the meaning set out in reg 1.12. The definition in reg 1.12 applies for the purposes of both the Act and the Regulations. Regulation 1.12(1) provides that a person is a member of the family unit of another person (the family head) if the person is:·the spouse or de facto partner of the family head;·a dependent child of the family head or of their spouse or de facto partner;·a dependent child of a dependent child of the family head or of their spouse or de facto partner (grandchild); or·a relative of the family head or their spouse or de facto partner who does not have a partner, is usually resident in the family head’s household and is dependent on the family head. In this instance, the applicant is claiming to be the de facto spouse of the family head/primary visa applicant, Alisa Sampantarat. A person is a ‘de facto partner’ if they are in a ‘de facto relationship’ with the family head. ‘De facto partner’ is defined in s 5CB the Act, which provides that: the couple must not be married to each other or related by family; the couple must have a mutual commitment to a shared life to the exclusion of all others; their relationship is genuine and continuing, and that the couple live together or do not live separately and apart on a permanent basis. When considering whether the above requirements in s 5CB are satisfied and the applicant is the de facto partner of the family head, the Tribunal may consider any of the circumstances outlined in reg 1.09A of the Regulations. These circumstances are the financial aspects of the relationship, the nature of the household, the social aspects of the relationship, and the nature of the persons’ commitment to each other. Based on the uncontradicted oral and written evidence of Alisa Sampantarat in 2024 that the applicant and he permanently separated in 2022, no longer lived together, no longer had a mutual commitment to a shared life to the exclusion of all others and that their relationship was no longer continuing, the Tribunal finds that the applicant is not the de facto partner of Alisa Sampantarat as per s 5CB of the Act and r.1.09A of the Regulations. Accordingly, the Tribunal finds that the applicant is not the de facto partner of the family head and cl 186.311 is not met as there is no other basis on which he is a member of the family unit of the primary visa applicant, Alisa Sampantarat, under r.1.12.DECISION The Tribunal affirms the decision not to grant the applicant an Employer Nomination (Permanent).Alison MercerSenior Member1.12 Member of the family unit(1)For the definition of member of the family unit in subsection 5(1) of the Act, and subject to subregulations (2), (2A), (6) and (7), a person is a member of the family unit of another person (in this subregulation called the family head) if the person is:(a) a spouse or de facto partner of the family head; or(b) a dependent child of the family head or of a spouse or de facto partner of the family head; or(c) a dependent child of a dependent child of the family head or of a spouse or de facto partner of the family head; or(d) (Omitted 02/04/2005)(e) a relative of the family head or of a spouse or de facto partner of the family head who:(i)does not have a spouse or de facto partner; and(ii)is usually resident in the family head’s household; and(iii)is dependent on the family head.…1.05A Dependent(1) Subject to subregulation (2), a person (the first person) is dependent on another person if: (a) at the time when it is necessary to establish whether the first person is dependent on the other person: (i) the first person is, and has been for a substantial period immediately before that time, wholly or substantially reliant on the other person for financial support to meet the first person’s basic needs for food, clothing and shelter; and(ii) the first person’s reliance on the other person is greater than any reliance by the first person on any other person, or source of support, for financial support to meet the first person’s basic needs for food, clothing and shelter; or(b) the first person is wholly or substantially reliant on the other person for financial support because the first person is incapacitated for work due to the total or partial loss of the first person’s bodily or mental functions.(2) …

Decision

Reasons for decision

Accordingly, the Tribunal finds that the applicant is not the de facto partner of the family head and cl 186.311 is not met as there is no other basis on which he is a member of the family unit of the primary visa applicant, Alisa Sampantarat, under r.1.12.DECISION The Tribunal affirms the decision not to grant the applicant an Employer Nomination (Permanent).Alison MercerSenior Member1.12 Member of the family unit(1)For the definition of member of the family unit in subsection 5(1) of the Act, and subject to subregulations (2), (2A), (6) and (7), a person is a member of the family unit of another person (in this subregulation called the family head) if the person is:(a) a spouse or de facto partner of the family head; or(b) a dependent child of the family head or of a spouse or de facto partner of the family head; or(c) a dependent child of a dependent child of the family head or of a spouse or de facto partner of the family head; or(d) (Omitted 02/04/2005)(e) a relative of the family head or of a spouse or de facto partner of the family head who:(i)does not have a spouse or de facto partner; and(ii)is usually resident in the family head’s household; and(iii)is dependent on the family head.…1.05A Dependent(1) Subject to subregulation (2), a person (the first person) is dependent on another person if: (a) at the time when it is necessary to establish whether the first person is dependent on the other person: (i) the first person is, and has been for a substantial period immediately before that time, wholly or substantially reliant on the other person for financial support to meet the first person’s basic needs for food, clothing and shelter; and(ii) the first person’s reliance on the other person is greater than any reliance by the first person on any other person, or source of support, for financial support to meet the first person’s basic needs for food, clothing and shelter; or(b) the first person is wholly or substantially reliant on the other person for financial support because the first person is incapacitated for work due to the total or partial loss of the first person’s bodily or mental functions.(2) …

Ratio Decidendi

Legal Principle Established

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