CHEN (Migration) - [2020] AATA 5470

CHEN (Migration) [2020] AATA 5470 (3 September 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Mrs CATHY CHEN
VISA APPLICANTS:  Mr LONGCAI HUANG
Miss YIYING HUANG
CASE NUMBER:  1800564
DIBP REFERENCE(S):  BCC2016/2225000
MEMBER:Kira Raif
DATE:3 September 2020
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decisions not to grant the visa applicants Partner (Provisional) (Class UF) visas.

Statement made on 03 September 2020 at 9:23pm
CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – sponsorship limitation – ‘compelling circumstances’ – review applicant’s and her daughter’s health condition – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5F, 65
Migration Regulations 1994 (Cth), r 1.20J; Schedule 2, cl 309.222
CASES
Babicci v MIMIA [2004] FCA 1645
Babicci v MIMIA [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 Immigration on 30 October 2017 to refuse to grant the visa applicants Partner (Provisional) (Class UF) visas under s.65 of the Migration Act 1958 (the Act).
The first named visa applicant (the visa applicant) is a national of China, born in November 1962. He applied for the visa on 30 June 2016 on the basis of his relationship with his sponsor. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.309.222 because the sponsorship has not been approved. The sponsor (‘the review applicant’) seeks review of the delegate’s decision.
The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.
The review applicant appeared before the Tribunal on 3 September 2020 to give evidence and present arguments. The Tribunal also received oral evidence from the review applicant’s daughter. The review applicant was represented in relation to the review by her registered migration agent. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Relevant law
At the time the application was made, Class UF contained only one subclass: Subclass 309 (Partner (Provisional). The criteria for the grant of this visa are set out in Part 309 of Schedule 2 to the Migration Regulations 1994 (the Regulations).
Clause 309.213 requires that the visa applicant is sponsored by the review applicant, where such person has turned 18; or where they have not, by the review applicant’s parent or guardian who has turned 18 and is either an Australian citizen,…

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: CHEN (Migration) [2020] AATA 5470
Case: [2020] AATA 5470
Decision Date: 3 September 2020

CaseChat Overview and Summary

The Administrative Appeals Tribunal affirmed the decision of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs not to grant Partner (Provisional) (Class UF) visas to the applicant and her daughter. The applicant sought review of this decision.

The primary legal issue before the Tribunal was whether there were "compelling circumstances" that would justify waiving the sponsorship limitation for the visa application, given the health conditions of the applicant and her daughter.

The Tribunal considered the medical evidence presented regarding the health conditions of the applicant and her daughter. However, it found that these circumstances did not meet the threshold of "compelling" as required by the relevant migration regulations to overcome the sponsorship limitation. Consequently, the Tribunal concluded that the applicant did not satisfy the criteria for the grant of the visa.

The Tribunal affirmed the decision not to grant the Partner (Provisional) (Class UF) visas to the applicant and her daughter.

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

For the reasons above, the visa applicant does not satisfy the criteria for the grant of the visa.DECISION The Tribunal affirms the decisions not to grant the visa applicants Partner (Provisional) (Class UF) visas.Kira RaifSenior Member

Ratio Decidendi

Legal Principle Established

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