Deng (Migration) - [2025] ARTA 432

DENG (MIGRATION) [2025] ARTA 432 (4 MARCH 2025)
DECISION AND
REASONS FOR DECISION
Applicant:Mrs Akuol Atem Ajhok Deng
Respondent:  Minister for Immigration and Multicultural Affairs
Tribunal Number:  2201818
Tribunal:General Member B Maiden
Date:4 March 2025
Decision:The Tribunal sets aside the decision under review and remits the application for a Partner (Migrant) (Class BC) visa for reconsideration, with the order that the applicant meets the following criteria for a Subclass 100 (Partner) visa:
·cl 100.221(2)(b) of Schedule 2 to the Regulations.

Statement made on 04 March 2025 at 10:52am
CATCHWORDS
MIGRATION – Partner (Migrant) (Class BC) visa – Subclass 100 (Partner) – genuine and continuing relationship – joint bank account – four children of the relationship – shared housework – limited evidence of joint social activities – emotional support during bereavements – decision under review remitted
LEGISLATION
Administrative Review Tribunal Act 2024, s 348
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024
Migration Act 1958, ss 5, 65
Migration Regulations 1994, Schedule 2, cl 100.221; r 1.15
CASES
He v MIBP [2017] FCAFC 206
Statement of Reasons
APPLICATION FOR REVIEW

On 14 October 2024, the Administrative Appeals Tribunal (“AAT”) became the Administrative Review Tribunal (“the Tribunal”). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (“the Transitional Act”), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 19 January 2022 to refuse to grant the applicant a Partner (Migrant) (Class BC) visa under s 65 of the Migration Act 1958 (Cth) (“the Act”).
The applicant, a South Sudanese national, applied for the visa on 28 June 2018 on the basis of her relationship with Mr Zacchaeus Kongor Deng (her “sponsor”). At that time, Class BC contained one subclass: Subclass 100 (Partner).
The criteria for the grant of a Subclass 100 visa are set out in Part 100 of Schedule 2 to the Migration Regulations 1994 (Cth) (“the Regulations”). The primary criteria must be satisfied by at least one applicant.
The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy cl 100.221(2) of Schedule 2 to the Regulations, because the delegate had no information which demonstrated that the applicant continued to be the spouse or de facto partner of her sponsor. The delegate mentioned that the Partner (Provisional) (Class UF) (Subclass 309) visa was granted on 7 June 2019 and that five document requests letters were sent to the applicant, but were not responded to and the information requested was not provided by the applicant. The Tribunal…

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 Deng (Migration)

Details

AGLC: Deng (Migration) [2025] ARTA 432
Case: [2025] ARTA 432
Decision Date: 4 March 2025

CaseChat Overview and Summary

In the case of Deng, the applicant sought review of a decision to refuse a Partner (Migrant) (Class BC) visa under subclass 100. The primary dispute was whether the applicant met the definition of being a spouse of the sponsor as required by the Migration Act and Regulations. The Tribunal found that the applicant and the sponsor were validly married and met the criteria for a married relationship. However, the Tribunal also found that the evidence provided was insufficient to meet all the requirements for a de facto relationship. The Tribunal concluded that the matter should be remitted for reconsideration.

The key legal issue before the Tribunal was whether the applicant met the criteria for a Subclass 100 visa as the spouse of the sponsor. Specifically, the Tribunal had to determine if the applicant and sponsor were in a genuine and continuing relationship as spouses, as defined under section 5F of the Act. This required examining the financial, social, and household aspects of the relationship as outlined in regulation 1.15A. The Tribunal had to decide if the evidence demonstrated a mutual commitment to a shared life as a married couple, excluding all others.

The Tribunal found that while the applicant and sponsor were validly married, the evidence did not sufficiently demonstrate that their relationship met all the requirements for a spouse relationship. The Tribunal noted that while there was evidence of joint ownership of assets and shared household expenses, there was limited evidence of joint social activities and emotional support during bereavements. The Tribunal concluded that the evidence provided was insufficient to satisfy all the requirements for a spouse relationship. Accordingly, the Tribunal remitted the matter for reconsideration by the Minister.

The Tribunal set aside the decision under review and remitted the application for a Partner (Migrant) (Class BC) visa for reconsideration. The Tribunal found that the applicant met the criteria for being a spouse under section 5F of the Act, but that the evidence was insufficient to meet all the requirements for a spouse relationship under regulation 1.15A. The Tribunal ordered that the application be remitted to the Minister to consider the remaining criteria for a Subclass 100 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 matter should be remitted for reconsideration. CONSIDERATION OF CLAIMS AND EVIDENCE The issue in the present case is whether the parties are spouses as defined under s 5F of the Act. Are the parties in a spouse or de facto relationship? Clause 100.221 of Schedule 2 to the Regulations requires that the applicant meet one of five alternative requirements. These include cl 100.221(2) and (2A) which require, among other things, that at the time of this decision, the applicant is the spouse or de facto partner of the ‘sponsoring partner’. Unless the applicant was granted a Subclass 309 visa by Ministerial intervention, the ‘sponsoring partner’ is the person who was specified as the applicant’s spouse or de facto partner or intended spouse or de facto partner in the related Subclass 309 application, being an Australian citizen, permanent resident or eligible New Zealand citizen. In the present case the applicant claims to be the spouse of the sponsor, a ‘sponsoring partner’ within the meaning of that term. A copy of the bio pages of the sponsor’s Australian passport appears on the Department file. ‘Spouse’ is defined in s 5F of the Act and 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 a married couple 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 about these matters, regard must be had to all of the circumstances of the relationship. This includes evidence of the financial and social aspects and the nature of the parties’ household and their 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 reg 1.15A(3) are effectively questions which must be answered: He v MIBP [2017] FCAFC 206.Are the parties validly married? If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. A copy of the parties certificate of marriage from the Republic of Kenya shows that the parties were married on 10 January 2017. On the evidence, the parties were married to each other under a marriage that is valid for the purposes of the Act as required by s 5F(2)(a). Are the other requirements for a spouse relationship met?Financial aspects of the relationship The Tribunal has considered the financial aspects of the relationship, including any joint ownership of real estate or other major assets; joint liabilities; extent of any pooling of financial resources; whether one person in the relationship owes any legal obligations in respect of the other and the basis of any sharing of day-to-day household expenses.

Decision

Reasons for decision

Given the findings above and in relation to the reg 1.15A matters, the Tribunal is satisfied that the parties are spouses as defined in s 5F of the Act. Therefore the applicant meets cl 100.221(2)(b) of Schedule 2 to the Regulations. Accordingly, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 100 visa.DECISION The Tribunal sets aside the decision under review and remits the application for a Partner (Migrant) (Class BC) visa for reconsideration, in accordance with the order that the applicant meets the following criteria for a Subclass 100 (Partner) visa:·cl 100.221(2)(b) of Schedule 2 to the Regulations

Ratio Decidendi

Legal Principle Established

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