Chong (Migration) - [2025] ARTA 397

CHONG (MIGRATION) [2025] ARTA 397 (27 FEBRUARY 2025)
DECISION AND
REASONS FOR DECISION
Applicant:Ms Suk Liong Chong
Respondent:  Minister for Immigration and Multicultural Affairs
Tribunal Number:  2316928

Tribunal:General Member P Maishman
Place:Perth
Date: 27 February 2025

Decision:The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.

Statement made on 27 February 2025 at 2:54pm
CATCHWORDS
MIGRATION –Partner (Temporary) (Class UK) visa – Subclass 820 – sponsor died – no documentary evidence the applicant and sponsor pooled their financial resources, or of how the covered their day to day expenses – financial aspects of the parties’ relationship do not support the parties being in a de facto relationship – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5CB, 65
Migration Regulations 1994, rr 1.09, 1.20J, Schedule 2, cls 820.211, 820.221
CASES
He v MIBP [2017] FCAFC 206
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister 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 applied for the visa on 31 May 2022 on the basis of her relationship with her sponsor, Mr Peter Howells (the 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 visa applicant did not satisfy cl 820.211(2)(a) because the delegate was not satisfied the applicant was the de facto partner of the sponsor.
The applicant appeared before the Tribunal by MS Teams video on 20 February 2025 to give evidence and present arguments.
The Tribunal hearing was conducted with the assistance of an interpreter in the Malay and English languages.
The applicant was represented in relation to the review.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The Tribunal had before it a copy of the Department’s file containing, relevantly, the visa application, sponsorship form and documents provided in support of the application. The applicant is a man nation national. She claims to have first met the sponsor, committed to a shared life together to the exclusion of all others and commenced a de facto relationship with the sponsor on 27 September 2015. The applicant was previously married in March 1982 and claims that relationship ceased in January 2015 and finalised by divorce in March 2022.
The applicant gave the Tribunal a copy of the delegate’s decision record with her application for review. The delegate’s decision record outlines it…

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 Chong (Migration)

Details

AGLC: Chong (Migration) [2025] ARTA 397
Case: [2025] ARTA 397
Decision Date: 27 February 2025

CaseChat Overview and Summary

The case involved a man from another country who applied for a Partner (Temporary) (Class UK) visa subclass 820. He claimed to have been in a de facto relationship with a sponsor who had since died. The matter was before the Administrative Appeals Tribunal to review a decision by the delegate that the application should be refused. The Tribunal was required to determine whether the applicant met the criteria for the grant of the visa, specifically whether he was in a de facto relationship with the sponsor at the time of the application. The Tribunal considered the financial aspects of the relationship, including whether the applicant and sponsor pooled their financial resources and how they covered their day-to-day expenses. The Tribunal found that there was no documentary evidence to support that the applicant and the sponsor shared financial resources or covered their day-to-day expenses together. The Tribunal concluded that the financial aspects of the relationship did not support the parties being in a de facto relationship. The Tribunal also considered the nature of the household, the social aspects of the relationship, and the nature of the parties' commitment to each other. However, the Tribunal found that the evidence did not support the applicant meeting the criteria for the grant of the visa. The Tribunal affirmed the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.

The Tribunal considered the provisions of the Migration Regulations and found that they did not apply to the circumstances of the case. The Tribunal also considered the provisions of regulation 1.20J, which imposes limitations on sponsorships, and found that it had no relevant application to the case. The Tribunal noted that the applicant had been given ample opportunity to provide evidence to support their claim and had not complied with the Tribunal's direction to provide additional evidence. The Tribunal declined the applicant's representative's request for extra time to provide additional documents on the basis that the applicant claimed to be unable to provide any evidence as outlined in the direction and had ample prior opportunity to do so. The Tribunal concluded that the applicant did not satisfy the criteria for the grant of the visa and 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 CLAIMS AND EVIDENCE The Tribunal had before it a copy of the Department’s file containing, relevantly, the visa application, sponsorship form and documents provided in support of the application. The applicant is a man nation national. She claims to have first met the sponsor, committed to a shared life together to the exclusion of all others and commenced a de facto relationship with the sponsor on 27 September 2015. The applicant was previously married in March 1982 and claims that relationship ceased in January 2015 and finalised by divorce in March 2022. The applicant gave the Tribunal a copy of the delegate’s decision record with her application for review. The delegate’s decision record outlines it was not satisfied the evidence provided supported the finding that the applicant and the sponsor shared a genuine de facto relationship. On 30 October 2024 the applicant provided a written submission along with a number of statutory declarations from friends and associates, and a copy of the sponsors Last Will and Testament. On 19 December 2024 the Tribunal directed the applicant to provide a statement addressing the nature of her relationship and invited her to provide supporting documentary evidence. The invitation included examples of the type of evidence the applicant might consider providing including, but not limited to, evidence of recognition of the relationship by family members, documents evidencing partner and/or next-of-kin declarations, and confirmation from the Executor of the sponsors Will of the distribution of the sponsors Estate according to the terms of the Will. On 10 January 2025 the Tribunal received a response to the Direction comprising a submission from the applicant’s representative and copies of the statutory declarations previously provided on 30 October 2024. The Tribunal observes evidence before the Tribunal confirms the sponsor died in March 2024, before the delegate made its decision refusing the application. The applicant has submitted the Tribunal should proceed with the partner visa application taking into account reg 1.20J. The Tribunal has considered the provisions of reg 1.20J which imposes limitations on sponsorships and in the Tribunal’s view has no relevant application. The Tribunal is of the view that cl 820.221(2)(a) provides for an applicant who meets cl 820.211(2) at the time of application to be taken to continue to meet those requirements if their sponsoring partner has died. At hearing the Tribunal noted the applicant’s rudimentary compliance with its Direction. The applicant’s representative said it was very hard to get evidence as suggested in the Direction. The applicant was not living in Australia. The applicant’s age and cultural differences meant she and the sponsor did not accrue documents. The Direction was complied with as best as could be. The Tribunal declined the representatives request for extra time to provide additional documents on the basis the applicant claimed to be unable to provide any evidence as outlined in the direction and had ample prior opportunity to do so. The delegate requested relationship information, and provided examples of information that might assist, on 6 February 2023. The delegate’s decision record indicated there was insufficient evidence of the financial and social aspects of the relationship, and the nature of the household and the parties commitment to each other. The Tribunal also provided a detailed list of examples of evidence that might assist the Tribunal with its Direction on 19 December 2024.

Decision

Reasons for decision

For the reasons above, the applicant does not satisfy the criteria for the grant of the visa.DECISION The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.Dates of hearing(s): 20 February 2025Representative for the Applicant: Mr Muhammad Ali SukheraATTACHMENT - 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

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