Chen (Migration) - [2023] AATA 3914

Chen (Migration) [2023] AATA 3914 (14 November 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Weiqing Chen
CASE NUMBER:  2101913
HOME AFFAIRS REFERENCE(S):          BCC2019/1031576
MEMBER:Alison Mercer
DATE:14 November 2023
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Business Skills (Permanent) visa.

Statement made on 14 November 2023 at 12:06pm

CATCHWORDS
MIGRATION – Business Skills (Permanent) (Class EC) visa – Subclass 888 (Business Innovation) – member of the family unit – relationship ceased – parties divorced – limited evidence of employment details – skilled meat worker shortage – decision under review affirmed
LEGISLATION
Family Law Act 1975
Migration Act 1958, ss 5, 65, 359, 360
Migration Regulations 1994, Schedule 2, cl 888.311; rr 1.03, 1.12, 1.15
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 on 16 February 2021 to refuse to grant the applicant a Business Skills (Permanent) subclass 888 (Business Innovation) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 1 March 2019. He was included as a member of the family unit (the spouse) of the primary visa applicant, Ms Junya Xu. The delegate refused to grant the applicant a visa on 16 February 2021 on the basis that he did not satisfy the requirements of cl 888.311 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). Clause 888.311 of Schedule 2 relevantly requires the applicant to be a member of the family unit of the primary visa applicant (Ms Xu) at the time of decision.
The delegate noted that Ms Xu’s representative provided evidence to the Department on 21 July 2020 that there were 2 apprehended violence orders made against the applicant in respect of Ms Xu, and that she had filed for divorce on 20 July 2020. The delegate further noted that natural justice letters were sent to the applicant regarding this information on 29 July 2020 and 29 October 2020, following which the representative provided evidence to the Department that Ms Xu’s divorce from the applicant was finalised on 27 December 2020.
Given the above, the delegate found the applicant was no longer the spouse of Ms Xu, the primary visa applicant, and did not satisfy r.1.12(2)(a), and thus also could not satisfy cl.888.311. The delegate found that the applicant had not made any claims to satisfy the primary visa criteria in his own right.
The Tribunal received a review application from the applicant on 19 February 2021.

6. On 30 October 2023, the Tribunal wrote to the applicant pursuant to s.359A of the Act to invite him to comment on or respond to information held by the Tribunal that was potentially adverse to his case. Specifically, the Tribunal noted that in the Department’s decision of 16 February 2021 to refuse him the visa, the delegate…

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 Chen (Migration)

Details

AGLC: Chen (Migration) [2023] AATA 3914
Case: [2023] AATA 3914
Decision Date: 14 November 2023

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered an application for a Business Skills (Permanent) visa, subclass 888 (Business Innovation). The applicant sought to be recognised as a member of the family unit of the primary visa applicant, Ms Junya Xu. The core of the dispute revolved around whether the applicant met the criteria for being a "member of the family unit" under the Migration Regulations 1994, specifically in relation to their marital status.

The Tribunal was required to determine if the applicant qualified as a "spouse" of the primary visa applicant, Ms Xu, for the purposes of the Business Skills (Permanent) visa application. This involved interpreting the definition of "spouse" under section 5F of the Migration Act 1958, which requires a valid marriage, a mutual commitment to a shared life as a married couple to the exclusion of all others, and that the relationship is genuine and continuing, with the couple living together or not living separately and apart on a permanent basis. The Tribunal also considered the circumstances outlined in regulation 1.15A, which include financial, household, social aspects, and the nature of the commitment to each other.

The Tribunal's reasoning focused on the documentary evidence presented, specifically a divorce order made under the Australian Family Law Act 1975 on 26 November 2020, which indicated the marriage was terminated on 27 December 2020. Based on this, the Tribunal concluded that the applicant and Ms Xu were no longer married and therefore no longer spouses under the Migration Act. Consequently, the Tribunal found that the applicant did not satisfy the requirements of clause 888.311 of the Migration Regulations. The Tribunal affirmed the decision not to grant the applicant a Business Skills (Permanent) 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 and satisfies cl 888.311. 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(2) 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 child or step-child of the family head or their spouse or de facto who is not engaged, or has a spouse or de facto partner and has not turned 18 or, if aged between 18 and 22 years of age is dependent on the family head (or partner), or if 23 years of age or older is wholly or substantially reliant on the family head (or partner) because they are incapacitated for work due to loss of bodily or mental functions;·a dependent child of a dependent child of the family head or of their spouse or de facto partner (grandchild). In this instance, the applicant is claiming to be the spouse of the family head and primary visa applicant, Ms Junya Xu. A person is a ‘spouse’ if they are in a ‘married relationship’ with the family head. ‘Spouse’ is defined by s 5F of the Act, which provides that: the couple must be married to each other in a marriage that is valid under the Migration Act; the couple must have a mutual commitment to a shared life as a married couple 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. The definition applies to same sex and different sex couples. When considering whether the above requirements in s 5F are satisfied and the applicant is the spouse of the family head, the Tribunal may consider any of the circumstances outlined in reg 1.15A 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. The Tribunal finds that Ms Xu provided to the Department a copy of a divorce order made under the Australian Family Law Act 1975 on 26 November 2020 which indicated that the parties were validly married but the grounds for divorce have been proven and an order for the marriage to be terminated was to take effect on 27 December 2020. The Tribunal therefore finds that the applicant and Ms Xu are no longer spouses as they are no longer married to each other in a marriage that is valid under the Migration Act; there is no evidence that they still have a mutual commitment to a shared life as a married couple to the exclusion of all others, or their relationship is genuine and continuing, or that they live together (or do not live separately and apart on a permanent basis).

Decision

Reasons for decision

Given this, it follows that the applicant is not the spouse of the family head and cl 888.311 is not met.DECISION The Tribunal affirms the decision not to grant the applicant a Business Skills (Permanent) visa.Alison MercerMember1.12 Member of the family unit(1)This regulation has effect for the purposes of the definition of member of the family unit in subsection 5(1) of the Act.General rule(2)A person is a member of the family unit of another person (the family head) if the person is:(a) a spouse or de facto partner of the family head; or(b) a child or step-child of the family head or of a spouse or de facto partner of the family head (other than a child or step-child who is engaged to be married or has a spouse or de factor partner) and:(i)has not turned 18; or(ii)has turned 18, but has not turned 23 and is dependent on the family head or on the spouse or de facto partner of the family head; or(iii)has turned 23 and is under paragraph 1.05A(1)(b) dependent on the family head or on the spouse or de facto partner of the family head; or(c) is a dependent child of a person who meets the conditions in (b).This subregulation has effect subject to the later subregulations of this regulation.…

Ratio Decidendi

Legal Principle Established

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