Duval (Migration) - [2024] AATA 3131

Duval (Migration) [2024] AATA 3131 (29 August 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Jean-Francois Leon Raymond Duval
REPRESENTATIVE:  Mr Matheus Da Silva (MARN: 1466919)
CASE NUMBER:  2003277
HOME AFFAIRS REFERENCE(S):          BCC2017/4459602
MEMBER:Edward Howard
DATE:29 August 2024
PLACE OF DECISION:  Brisbane
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) of Schedule 2 to the Regulations
·cl 820.221(1) of Schedule 2 to the Regulations
·reg 2.03A

Statement made on 29 August 2024 at 4:56pm

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – genuine and continuing relationship – confirmation of sponsorship form – joint responsibility for regular expenses – shared residence in two countries and travel – joint social activities – family recognition – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5, 65, 360
Migration Regulations 1994, Schedule 2, cls 820.211, 820.221; rr 1.09, 2.03
CASES
Ally v MIAC [2008] FCAFC 49
Bretag v IRT [1991] FCA 582
He v MIBP [2017] FCAFC 206
Jayasinghe v MIMA [2006] FCA 1700
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 review applicant a Partner (Temporary) (Class UK) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The review applicant applied for the visa on 25 November 2017 on the basis of his relationship with his 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.
In the decision record of 7 February 2020, the delegate noted that the department’s preferred method of confirmation of sponsorship is via the Sponsorship for a partner to migrate to Australia form. The delegate noted that this form was not submitted by the sponsor at the time of application. It was noted that in the absence of such form, the delegate must be satisfied that the legislative requirements have been met pursuant to cl 820.211.
The delegate refused to grant the visa on the basis that the review applicant did not satisfy cl 820.211(2) of Schedule 2 of the Regulations, in failing to prove that he was the spouse or de facto partner of the Australian citizen referred to in the application.
The Tribunal has had the benefit of receiving extensive evidence and submissions from the parties since the time of the delegate’s decision, which information was unavailable to the delegate. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

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 Duval (Migration)

Details

AGLC: Duval (Migration) [2024] AATA 3131
Case: [2024] AATA 3131
Decision Date: 29 August 2024

CaseChat Overview and Summary

The Administrative Appeals Tribunal reviewed a decision concerning an application for a Partner (Temporary) (Class UK) visa, Subclass 820. The applicant sought to establish a genuine and continuing relationship with their sponsor, which is a key criterion for the visa. The Tribunal considered various aspects of the relationship, including financial arrangements, household matters, social interactions, and the overall commitment between the parties.

The central legal issue before the Tribunal was whether the applicant had demonstrated a genuine and continuing de facto relationship as required by the Migration Regulations 1994. Specifically, the Tribunal had to determine if the applicant met the criteria outlined in clauses 820.211(2) and 820.221(1) of Schedule 2 to the Regulations, which pertain to the genuineness and continuation of the relationship. This involved assessing evidence relating to shared residence in two countries, travel, joint social activities, family recognition, and joint responsibility for regular expenses.

The Tribunal's reasoning focused on the comprehensive assessment of the relationship under regulation 1.09A of the Migration Regulations 1994. This regulation mandates consideration of financial, household, social, and commitment aspects of the relationship. While the provided text does not detail the specific findings on each of these aspects, it indicates that the Tribunal found it appropriate to remit the application. The Tribunal directed that the review applicant be considered to meet the specified criteria for the Subclass 820 visa.

Orders

Orders of the court

Full text does not contain this section.

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 application for a Partner (Temporary) (Class UK) visa, with the direction that the review applicant meets the following criteria for a Subclass 820 (Partner) visa:·cl 820.211(2) of Schedule 2 to the Regulations·cl 820.221(1) of Schedule 2 to the RegulationsEdward HowardMemberATTACHMENT - 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

The Tribunal remits the application for a Partner (Temporary) (Class UK) visa, with the direction that the review applicant meets the following criteria for a Subclass 820 (Partner) visa:·cl 820.211(2) of Schedule 2 to the Regulations·cl 820.221(1) of Schedule 2 to the RegulationsEdward HowardMemberATTACHMENT - 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).