Dau (Migration) - [2025] ARTA 921

Dau (Migration) [2025] ARTA 921 (9 May 2025)
DECISION AND
REASONS FOR DECISION
Applicant:Miss Thi Thu Huong Dau
Respondent:  Minister for Immigration and Multicultural Affairs
Tribunal Number:  2418078

Tribunal: General MemberC Kannis
Place:Perth
Date: 9 May 2025
Decision:The Tribunal sets aside the decision under review and remits the application for a Partner (Temporary) (Class UK) visa for reconsideration in accordance with the order that the applicant meets the following criteria for a Subclass 820 (Partner) visa:
·cl 820.211(2)(a) of Schedule 2 to the Regulations
·cl 820.221(3)(b)(ii) of Schedule 2 to the Regulations

Statement made on 09 May 2025 at 7:31am

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 – relationship with the sponsor had ceased – a child of the parties’ relationship was born – applicant and the sponsor had a mutual commitment to each other – they were in a genuine and continuing relationship – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5F, 65, 359, 376
Migration Regulations 1994(Cth), r 1.15, Schedule 2, cls 820.211,820.221
CASES
He v MIBP [2017] FCAFC 206
Tran v Minister for Immigration, Multicultural and Indigenous Affairs [2003] FCA 44
Srour v MIMIA [2006] FCA 1228
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 19 May 2017 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 visa was refused because the delegate was not satisfied that the applicant’s relationship with the sponsor met the definition of a spousal relationship under the Act and therefore she did not satisfy cl 820.211(2)(a).
The applicant lodged an application for review of the delegate’s decision with the former Administrative Appeals Tribunal (the AAT). On 9 August 2019, 23 October 2019 and 17 February 2020, the AAT conducted hearings after which it affirmed the Department’s decision.
The applicant sought review of the decision of the AAT and on 9 May 2024, the Federal Circuit and Family Court of Australia quashed the decision and remitted the matter to the AAT to reconsider and determine the matter according to law. The reason for remittal was that the AAT failed to comply with s 359A/s 359AA of the Act in relation to evidence given by the sponsor during the hearing.
On 14 October 2024, the AAT became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative…

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 Dau (Migration)

Details

AGLC: Dau (Migration) [2025] ARTA 921
Case: [2025] ARTA 921
Decision Date: 9 May 2025

CaseChat Overview and Summary

The case of Dau (Migration) involved the applicant, a Vietnamese national, seeking a Partner (Temporary) (Class UK) visa under subclass 820. The applicant had previously been married to the sponsor, an Australian citizen, but their relationship had ceased, and they had a child together. The Tribunal was tasked with determining whether the applicant could meet the criteria for the visa given the cessation of their relationship.

The primary legal issues for the court were whether the applicant's relationship with the sponsor met the criteria for a subclass 820 visa, particularly given that the relationship had ceased and they had a child. The court needed to consider whether the applicant could meet the time of decision criteria under clauses 820.211 and 820.221, and if the exceptions in clause 820.221(3)(b)(ii) applied due to the existence of a child from the relationship.

The Tribunal found that the relationship had indeed ceased, and thus the applicant could not continue to meet the requirements under clause 820.211(2). The sponsor had not died, so the exception in clause 820.221(2) did not apply. No family violence claims were made, so the exception in clause 820.221(3)(b)(i) was also not applicable. However, the existence of a child from the relationship did provide grounds for considering the exception in clause 820.221(3)(b)(ii). The Tribunal concluded that the matter should be remitted for reconsideration of the remaining criteria for a subclass 820 visa.

Given the findings, the Tribunal remitted the application for a Partner (Temporary) (Class UK) visa, directing that the applicant meets the criteria for a subclass 820 (Partner) visa under clauses 820.211(2)(a) and 820.221(3)(b)(ii) of Schedule 2 to the Regulations. The decision was made on 29 April 2025, with Ms Janly Quach representing the applicant. The Tribunal's decision was based on the need for further consideration of the relationship's circumstances, particularly in light of the child born from the relationship.

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 set aside the decision under review and remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 820 visa.DECISION The Tribunal remits the application for a Partner (Temporary) (Class UK) visa, with the direction that the applicant meets the following criteria for a Subclass 820 (Partner) visa:·cl 820.211(2)(a) of Schedule 2 to the Regulations·cl 820.221(3)(b)(ii) of Schedule 2 to the RegulationsDates of hearing(s): 29 April 2025Representative for the Applicant: Ms Janly QuachATTACHMENT - Extract from Migration Regulations 19941.15A Spouse(1)For subsection 5F (3) of the Act, this regulation sets out arrangements for the purpose of determining whether 1 or more of the conditions in paragraphs 5F (2) (a), (b), (c) and (d) of the Act 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 married to 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

For the following reasons, the Tribunal has concluded that the matter be remitted for reconsideration.CONSIDERATION OF CLAIMS AND EVIDENCE Clauses 820.211(2) and 820.221 require that at the time the visa application was made, and at the time of this decision, the applicant is the spouse or de facto partner of an Australian citizen or Australian permanent resident or an eligible New Zealand citizen. Section 5F of the Act provides that a person is the spouse of another where the two persons are in a married relationship. Persons in a married relationship must be married to each other under a marriage that is valid for the purposes of the Act, there must be a mutual commitment to a shared life as husband and wife to the exclusion of all others, the relationship must be genuine and continuing, and the couple must live together, or not live separately and apart on a permanent basis: s 5F(2)(a)-(d). In forming an opinion as to these matters, regard must be had to all of the circumstances of the relationship. This includes evidence of the financial and social aspects of the relationship, the nature of the household and the persons’ commitment to each other as set out in reg 1.15A(3), which is extracted in the attachment to this decision. Each of the specific matters contained in r.1.15A(3) are effectively questions which must be answered: He v MIBP [2017] FCAFC 206. On 4 December 2024, the representative advised the Tribunal that the applicant’s relationship with the sponsor had ceased and that they have a child together. There are limited circumstances in which an applicant can meet the time of decision criteria when a relationship has ceased. Clause 820.221(1) indicates that a genuine partner relationship within the meaning of the Act must have existed before the relationship ceased and the applicant would have otherwise met subclauses 820.211(2), (5), (6), (7), (8) or (9) or meets the requirements of subclause 820.221 (2) or (3). This means there is a threshold requirement that a genuine partner relationship must have existed and if the relevant spousal or de facto relationship never existed, the exceptions in subclauses 820.221 (2) or (3) cannot be made out. The applicant is a Vietnamese national. The sponsor is an Australian citizen. The applicant and the sponsor claim to have met in 2016 and they were married on 18 May 2017. The evidence before the Tribunal was that the applicant and the sponsor separated on 8 December 2023 A Divorce Order made by the Family Court of Western Australia was provided and stated that the divorce order will take effect and terminate the parties’ marriage on 8 April 2025. In a statutory declaration dated 11 March 2025 the applicant said although the sponsor ceased living with her in December 2023 she hoped for a reconciliation and therefore they remained in contact and he visited her and their newborn child. She said in April 2024 she ceased contact with the sponsor save for contact about their child. In the present case, the relationship has ceased and therefore the applicant cannot continue to meet cl 820.211(2). The sponsoring partner has not died and therefore cl 820.221(2) has no application. No family violence claims have been made and therefore cl 820.221(3)(b)(i) has no application. The applicant has made a claim based on the child exception in cl 820.221(3)(b)(ii)