Cuyos (Migration) - [2024] AATA 675

Cuyos (Migration) [2024] AATA 675 (26 March 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mrs Dudeth Cuyos
Mr John Michael Suyat
REPRESENTATIVE:  Mrs Marimi Tanag (MARN: 1386887)
CASE NUMBER:  1929288
HOME AFFAIRS REFERENCE(S):          BCC2018/2283433
MEMBER:SM Michael Cooke
DATE:26 March 2024
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the applications for Partner (Temporary) (Class UK) visas, with the direction that the first named applicant meets the following criteria for a Subclass 820 (Partner) visa:
·cl 820.211 of Schedule 2 to the Regulations
·cl 820.221(3) of Schedule 2 to the Regulations
·reg 2.03A

Statement made on 26 March 2024 at 12:54pm
CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – compelling reasons to waive Schedule 3 criteria – relationship ceased – no substantive visa at visa application – 12-month de facto relationship – judicial claim of family violence – Apprehended Domestic Violence Final Order – compelling reasons – decision under review remitted
LEGISLATION
Family Law Act 1975
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 820.211, 820.221; Schedule 3, Criterion 3001; rr 1.09, 1.21, 1.23, 2.03
CASES
Babicci v MIMIA (2005) 141 FCR 285
MZYPZ v MIAC [2012] FCA 478
Plaintiff M64/2015 v MIBP [2015] HCA 50
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 applicants Partner (Temporary) (Class UK) visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The first named applicant (the applicant) applied for the visa on 27 May 2018 on the basis of her relationship with her 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)(d) because the applicant did not meet the Schedule 3 criteria.
The applicant (through her representative) has provided a quantity of additional information to the Tribunal concerning the case.
The applicants appeared before the Tribunal on 29 February 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Tagalog and English languages.
The applicants were represented in relation to the review. The representative attended the Tribunal hearing.
At the hearing the applicant was requested (with the assistance of her representative) to provide a submission addressing the Schedule 3 criteria, the 12 month rule for de facto partners and the family violence exception.
Following the hearing additional information was tendered to the Tribunal.
For the following reasons, the Tribunal has…

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 Cuyos (Migration)

Details

AGLC: Cuyos (Migration) [2024] AATA 675
Case: [2024] AATA 675
Decision Date: 26 March 2024

CaseChat Overview and Summary

This matter concerned an application for a Partner (Temporary) (Class UK) visa, Subclass 820. The applicant sought a waiver of Schedule 3 criteria, asserting compelling reasons due to the cessation of her relationship with the visa sponsor and allegations of family violence. The Tribunal was required to determine whether the applicant had established compelling reasons for the waiver, whether a de facto relationship of 12 months existed prior to the application, and whether she had suffered family violence perpetrated by her sponsoring partner.

The Tribunal considered the evidence presented, including a court order related to family violence. It was satisfied that a de facto relationship existed at the time of the visa application and that this relationship had ceased. The Tribunal also found that the applicant was sponsored by her de facto partner at the time of application. However, the applicant did not hold a substantive visa at the time of application, meaning she did not meet the Schedule 3 requirements. The Tribunal noted that the 12-month de facto relationship requirement would not apply if compelling and compassionate circumstances were established, or in certain humanitarian visa scenarios, neither of which were evidenced here.

The Tribunal concluded that the applicant had met certain criteria for the Subclass 820 visa, specifically those relating to the existence and cessation of the de facto relationship and sponsorship. However, due to the applicant not holding a substantive visa and the need to fully consider the "compelling reasons" for waiving Schedule 3 criteria in light of the family violence claim, the matter was remitted for reconsideration. The Tribunal directed that the applicant met specific criteria, including those under cl 820.211 and reg 2.03A, but the remaining criteria for the visa were to be considered by the Minister.

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 applications for Partner (Temporary) (Class UK) visas, with the direction that the first named applicant meets the following criteria for a Subclass 820 (Partner) visa:·cl 820.211 of Schedule 2 to the Regulations·cl 820.221(3) of Schedule 2 to the Regulations·reg 2.03AMichael CookeSenior MemberATTACHMENT - 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).Schedule 33001(1)The application is validly made within 28 days after the relevant day (within the meaning of subclause (2)).(2)For the purposes of subclause (1) and of clause 3002, the relevant day, in relation to an applicant, is:(a)if the applicant held an entry permit that was valid up to and including 31 August 1994 but has not subsequently been the holder of a substantive visa — 1 September 1994; or(b)if the applicant became an illegal entrant before 1 September 1994 (whether or not clause 6002 in Schedule 6 of the Migration (1993) Regulations applied or section 195 of the Act applies) and has not, at any time on or after 1 September 1994, been the holder of a substantive visa — the day when the applicant last became an illegal entrant; or(c)if the applicant:(i) ceased to hold a substantive or criminal justice visa on or after 1 September 1994; or(ii) entered Australia unlawfully on or after 1 September 1994;whichever is the later of:(iii) the last day when the applicant held a substantive or criminal justice visa; or(iv) the day when the applicant last entered Australia unlawfully; or(d)if the last substantive visa held by the applicant was cancelled, and the Tribunal has made a decision to set aside and substitute the cancellation decision or the Minister's decision not to revoke the cancellation — the later of:(i) the day when that last substantive visa ceased to be in effect; and(ii) the day when the applicant is taken, under sections 368C, 368D and 379C of the Act, to have been notified of the Tribunal's decision.3003If:(a)the applicant has not, on or after 1 September 1994, been the holder of a substantive visa; and(b)on 31 August 1994, the applicant was either:(i) an illegal entrant; or(ii) the holder of an entry permit that was not valid beyond 31 August 1994;the Minister is satisfied that:(c)the applicant last became an illegal entrant, or, in the case of a person referred to in subparagraph (b)(ii), last became a person in Australia without a substantive visa, because of factors beyond the applicant's control; and(d)there are compelling reasons for granting the visa; and(e)the applicant has complied substantially with the conditions that apply or applied to:(i) the last of any entry permits held by the applicant (other than a condition of which the applicant was in breach solely because of the expiry of the entry permit); and(ii) any subsequent bridging visa; and(f)the applicant would have been entitled to be granted an entry permit equivalent to a visa of the class applied for if the applicant had applied for the entry permit immediately before last becoming an illegal entrant or, in the case of a person referred to in subparagraph (b)(ii), if the applicant had applied for the entry permit on 31 August 1994; and(g)the applicant intends to comply with any conditions subject to which the visa is granted; and(h)the last entry permit (if any) held by the applicant was not granted subject to a condition that the holder would not, after entering Australia, be entitled to be granted an entry permit, or a further entry permit, while the holder remained in Australia.3004If the applicant:(a)ceased to hold a substantive or criminal justice visa on or after 1 September 1994; or(b)entered Australia unlawfully on or after 1 September 1994 and has not subsequently been granted a substantive visa;the Minister is satisfied that:(c)the applicant is not the holder of a substantive visa because of factors beyond the applicant's control; and(d)there are compelling reasons for granting the visa; and(e)the applicant has complied substantially with:(i) the conditions that apply or applied to:(A)the last of any entry permits held by the applicant (other than a condition of which the applicant was in breach solely because of the expiry of the entry permit); and(B)any subsequent bridging visa; or(ii) the conditions that apply or applied to:(A)the last of any substantive visas held by the applicant (other than a condition of which the applicant was in breach solely because the visa ceased to be in effect); and(B)any subsequent bridging visa; and(f)either:(i) in the case of an applicant referred to in paragraph (a) — the applicant would have been entitled to be granted a visa of the class applied for if the applicant had applied for the visa on the day when the applicant last held a substantive or criminal justice visa; or(ii) in the case of an applicant referred to in paragraph (b) — the applicant would have satisfied the criteria (other than any Schedule 3 criteria) for the grant of a visa of the class applied for on the day when the applicant last entered Australia unlawfully; and(g)the applicant intends to comply with any conditions subject to which the visa is granted; and(h)if the last visa (if any) held by the applicant was a transitional (temporary) visa, that visa was not subject to a condition that the holder would not, after entering Australia, be entitled to be granted an entry permit, or a further entry permit, while the holder remained in Australia.

Ratio Decidendi

Legal Principle Established

For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.CONSIDERATION OF CLAIMS AND EVIDENCE The issues in the present case include whether the applicant has ‘compelling reasons” for waiver of the Schedule 3 criteria. Also, was she in a de facto relationship for 12 months prior to the date of application and whether she suffered family violence perpetrated by her sponsoring partner and later spouse.The Hearing The Tribunal outlined to the applicant that in order to make a successful claim of family violence she required information to prove whether she could meet the family violence exception through either a Judicial claim via the Court or Non-Judicial claim via statements from herself and ‘competent persons’ with whom she had consulted. The applicant’s representative indicated that the applicant would be making a Judicial claim and had a Court Order to that effect. In the present case, the applicant claims the relationship with the visa sponsor has ceased, and she has been the victim of family violence. The Tribunal is satisfied on the evidence before it that a de facto relationship existed at the time of visa application and the relationship has ceased. Therefore, the applicant meets cl 820.211(2)(a). The Tribunal finds that at time of application the applicant was sponsored by her sponsoring de facto partner and meets cl 820.211(2)(c). She was not a substantive visa holder and did not meet the Schedule 3 requirements in cl 820.211(2)(d). Are the additional criteria for a de facto relationship met? Persons claiming to be in a de facto relationship for a partner visa must also meet the additional criteria in reg 2.03A. Both members of the couple must be at least 18 years old: reg 2.03A(2). In this case, at the time of application, the applicant and the sponsor were at least 18 years old. The applicant must have been in the de facto relationship for at least the 12 month period ending immediately before the date of the application: reg 2.03A(3). This requirement will not apply in limited circumstances, such as: where the de facto relationship has been registered under a relevant State or Territory law (for applications made on or after 9 November 2009); where the applicant can establish compelling and compassionate circumstances for the grant of the visa; or in certain circumstances where the sponsor held, holds or is applying for a permanent humanitarian visa. There is no evidence that the relationship is registered under a relevant State or Territory law or that the sponsor held, holds or is applying for a permanent humanitarian visa, so they must meet the 12 month requirement. The Tribunal has read the available written and oral evidence. The Tribunal notes that the applicant made a number of successful extensions to her Visitor visa applications prior to applying for the visa the subject of this review. This was due to the fact that during this time a de facto relationship was ongoing between the parties and for 12 months prior to the date of application.