El Jejieh (Migration) - [2021] AATA 4013

El Jejieh (Migration) [2021] AATA 4013 (24 September 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Samih Mostafa El Jejieh
CASE NUMBER:  2013066
DIBP REFERENCE(S):  OSF2013010580
MEMBER:Kira Raif
DATE:24 September 2021
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the application for a Partner (Migrant) (Class BC) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 100 visa:
·cl.100.221(4)(b) and (c) of Schedule 2 to the Regulations

Statement made on 24 September 2021 at 12:27pm
CATCHWORDS
MIGRATION –Partner (Migrant) (Class BC) visa – Subclass 100 – Federal Circuit Court remittal –applicant has suffered family violence committed by the sponsor – relationship with sponsor has ceased – evidence of family violence has been presented in accordance with r.1.24(1)(b) – independent expert’s opinion – violence occurred during the relationship –decision under review remitted
LEGISLATION
Migration Act 1958, ss 65, 375A
Migration Regulations 1994, rr 1.21, 1.22, 1.23,1.24, 1.25, 1.26, Schedule 2, cl 100.221
CASES
Muliyana v MIAC (2010) 183 FCR 170
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 Immigration on 3 March 2016 to refuse to grant the applicant a Partner (Migrant) (Class BC) visa under s.65 of the Migration Act 1958 (the Act).
The applicant applied for the visa on 23 October 2013 on the basis of his relationship with his sponsor. The delegate refused to grant the visa on the basis that the applicant did not meet cl.100.221 because the delegate was not satisfied the applicant was the spouse of the sponsor. The applicant seeks review of the delegate’s decision.
In June 2018 the Tribunal (differently constituted) affirmed the decision under review. The applicant sought judicial review and the Federal Court remitted the matter for reconsideration.
There are s. 375A certificates on the Departmental file and the applicant was informed of these. At the commencement of the hearing the applicant’s representative confirmed that this was no longer a live issue.
The applicant appeared before the Tribunal on 8 March 2021 to give evidence and present arguments. The applicant was represented in relation to the review by his registered migration agent. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
Relevant law
At the time the application was made, Class BC contained Subclass 100. The criteria for the grant of this visa are set out in Part 100 of Schedule 2 to the Migration Regulations 1994 (the Regulations).
The primary criteria must be satisfied by at least one applicant. Relevantly to this matter the primary criteria include cl.100.221 which requires the applicant to be the spouse or de facto partner of the sponsor, unless the relationship has ceased and certain circumstances exist. These include that the applicant, or a member of the family unit, has suffered family violence committed by the sponsor: cl.100.221(4)(b), (c)(i). The applicant claims this occurred in this case.
In the present…

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.

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Details

AGLC: El Jejieh (Migration) [2021] AATA 4013
Case: [2021] AATA 4013
Decision Date: 24 September 2021

CaseChat Overview and Summary

This matter concerned an application for a Partner (Migrant) (Class BC) visa, Subclass 100, before the Administrative Appeals Tribunal. The applicant had experienced family violence perpetrated by the sponsor, and their relationship had subsequently ended. The Tribunal was required to determine whether the applicant met the criteria for the visa in light of these circumstances.

The central legal issue was whether the applicant satisfied the requirements of cl.100.221(4)(b) and (c) of Schedule 2 to the Migration Regulations 1994. These provisions are relevant when a relationship has ceased due to family violence. The Tribunal had to consider the evidence presented by the applicant, including an independent expert's opinion, to establish that family violence had indeed occurred during the relationship.

The Tribunal found that the applicant had met the requirements of cl.100.221(4)(b) and (c) because the relationship with the sponsor had ceased and the applicant had suffered family violence committed by the sponsor. The evidence presented, including the independent expert's opinion, supported the finding that violence had occurred during the relationship. Consequently, the Tribunal remitted the visa application to the Minister for reconsideration, with a direction that the applicant met these specific 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

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Decision

Reasons for decision

As the relationship between the applicant and sponsor has ceased, and the applicant has suffered relevant family violence committed by the sponsor, the applicant meets the requirements of cl.100.221(4)(b) and (c). Given these findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa. DECISION The Tribunal remits the application for a Partner (Migrant) (Class BC) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 100 visa:·cl.100.221(4)(b) and (c) of Schedule 2 to the Regulations.Kira RaifSenior Member

Ratio Decidendi

Legal Principle Established

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