Elizalde Ruiz (Migration) - [2023] AATA 1001

Elizalde Ruiz (Migration) [2023] AATA 1001 (12 April 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Carlos Eugenio Elizalde Ruiz
REPRESENTATIVE:  Mr Roman Deauna (MARN: 0634853)
CASE NUMBER:  1823908
HOME AFFAIRS REFERENCE(S):          BCC2017/998701
MEMBER:Edward Howard
DATE:12 April 2023
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 of Schedule 2 to the Regulations
·reg 2.03A

Statement made on 12 April 2023 at 9:41am

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – genuine and continuing relationship – financial, household and social aspects of relationship and nature of commitment – development and length of relationship and registration – extensive documentary evidence and supporting statements – decision made without hearing necessary – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5CB, 65
Migration Regulations 1994 (Cth), rr 1.09A, 2.03A; Schedule 2, cls 820.211, 820.221
CASES
Ally v MIAC [2008] FCAFC 49
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 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 14 March 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.
The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl 820.211.
The Tribunal has considered all of the evidence, which includes extensive documentary evidence provided to the Tribunal and is satisfied that a decision can be made without the need for a hearing.
The applicant was represented in relation to the review.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
BACKGROUND
The visa applicant is Carlos Eugenio Elizalde Ruiz, 35 years of age, a citizen of Mexico. The sponsor is Gregory George, 46 years of age, an Australian citizen. The parties claim to have met via a mobile dating application on 26 April 2014. The sponsor was visiting Auckland to attend the wedding of friends. The parties met in person for the first time on 26 June 2014. They met again in Auckland between the 20^th and 24^th of August 2014. The visa applicant then travelled to Sydney to spend…

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: Elizalde Ruiz (Migration) [2023] AATA 1001
Case: [2023] AATA 1001
Decision Date: 12 April 2023

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered an application by Carlos Eugenio Elizalde Ruiz, a citizen of Mexico, for a Partner (Temporary) (Class UK) visa, Subclass 820. Mr. Ruiz claimed to be in a genuine and continuing de facto relationship with Gregory George, an Australian citizen. The core of the dispute revolved around whether the parties had established a de facto relationship that met the criteria for the visa at the time of application and at the time of the decision.

The Tribunal was required to determine whether the parties were in a de facto relationship, assessing the financial, household, social aspects, and the nature of their commitment to each other, as outlined in regulation 1.09A of the Migration Regulations 1994. Specifically, the Tribunal needed to consider all the circumstances of the relationship, including evidence of events occurring after the visa application, if such evidence logically tended to show the existence or non-existence of the relationship at the time of application. The Tribunal also had to consider whether the parties met the additional criteria for a de facto relationship under regulation 2.03A, including the duration of the relationship and its registration.

The Tribunal reasoned that while the visa applicant initially provided limited documentary evidence to the Department of Home Affairs, further evidence was presented to the Tribunal that was not available to the primary decision-maker. Applying the principles established in cases such as *Ally v MIAC* and *Jayasinghe v MIMA*, the Tribunal considered evidence of subsequent events to illuminate the nature of the relationship at the time of application. The Tribunal found that the parties had a mutual commitment to a shared life, that their relationship was genuine and continuing, and that they lived together. The Tribunal was satisfied that the parties met the criteria for a de facto relationship, including the registration of their relationship, which exempted them from the usual 12-month cohabitation requirement.

Consequently, the Tribunal remitted the application for reconsideration with a direction that the applicant meets the specified criteria for a Subclass 820 (Partner) visa.

Orders

Orders of the court

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Background

Background to the litigation

For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.BACKGROUND The visa applicant is Carlos Eugenio Elizalde Ruiz, 35 years of age, a citizen of Mexico. The sponsor is Gregory George, 46 years of age, an Australian citizen. The parties claim to have met via a mobile dating application on 26 April 2014. The sponsor was visiting Auckland to attend the wedding of friends. The parties met in person for the first time on 26 June 2014. They met again in Auckland between the 20th and 24th of August 2014. The visa applicant then travelled to Sydney to spend time with the sponsor on 19 September 2014. The parties then met in both Auckland and Sydney over the following few months and in January 2015 agreed to develop their relationship on a more long-term basis. The sponsor then committed to visiting Auckland more regularly as he had the flexibility to work from his employer’s office in Auckland. His employer gave approval for him to work one full week every month out of the Auckland office. During 2015 the visa applicant also visited the sponsor in Sydney. The visa applicant then made a decision to undertake a course of study, an accounting diploma, in Sydney and relocated there, living with the sponsor. Eventually, the relationship developed on a more permanent basis and they registered their relationship on 17 December 2015. Issues And Law There is a two stage process for onshore Partner visas. A visa applicant must first hold a provisional visa, enabling them to remain in Australia on a temporary basis, prior to the grant of a permanent visa. The grant of a permanent visa would generally depend on whether the relationship has continued for a period of at least two years. In this matter, the Tribunal is considering the first, temporary stage. Where the Tribunal is considering a criterion that requires the definition of spouse or de facto partner to be met at the time of the visa application, the information supplied in relation to the reg 1.09A(3) matters may relate to circumstances after the time of application. In forming a view of the relationship at the time of application, the Tribunal must consider all relevant evidence, which may include evidence of events after the date of application insofar as it assists in the task of determining whether the visa applicant and the sponsor were in a partner relationship at the time of the application. Evidence of events after the visa application is relevant if it tends logically to show the existence or non-existence of facts relevant to the issue to be determined.[1] The Tribunal observes this to be a matter where the visa applicant submitted limited documentary evidence in support of his visa application to the Department of Home Affairs and then furnished the Tribunal with further evidence that was unavailable to the primary decision maker.[1] Ally v MIAC [2008] FCAFC 49 at [32]–[35]; Jayasinghe v MIMA [2006] FCA 1700 at [35], citing MIEA v Poche (1980) 4 ALD 139 at [24] per Deane J which held that evidence of subsequent events may be taken into account if it ‘tends to logically show the existence or non-existence of’ the relationship at that particular time; and see also Bretag v IRT [1991] FCA 582 at [13]–[15].Whether the parties are in a spouse or de facto relationship

Evidence

Evidence Before The Court

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Decision

Reasons for decision

From the evidence provided, the Tribunal finds that the parties are in a genuine and continuing relationship, show a strong commitment to each other, provide significant emotional support to each other and clearly see the relationship as long-term. The Tribunal weighs the nature of the commitment in favour of the visa applicant.Overall Conclusions Having considered the evidence and for the reasons above, the Tribunal is satisfied that at the time of application, the parties had a mutual commitment to a shared life to the exclusion of all others; that the relationship between them was genuine and continuing; and that they lived together and not separately and apart on a permanent basis. The Tribunal is therefore satisfied the requirements of section 5CB of the Act were met the time of the visa application. The Tribunal is further satisfied that at the time of this decision the parties continue to have a mutual commitment to a shared life to the exclusion of all others and that the relationship between them has been and remains, genuine and continuing. The Tribunal is also satisfied that the parties live together and not live separately and apart on a permanent basis. The Tribunal is therefore satisfied the requirements of section 5CB(2) of the Act are met at the time of this decision. The Tribunal is therefore satisfied that the parties relationship fulfilled the criteria contained in clause 820.211(2)(a) of the regulations at the time the visa application was made and at the time of this decision. The Tribunal is satisfied that at the time of the application, the visa applicant was sponsored by the sponsor in accordance with cl.820.211(c), who lodged a sponsorship in support of the application. The Tribunal is satisfied that at the time of this decision the visa applicant continues to be sponsored by his sponsor. The Tribunal is further satisfied that at the time of this application, the visa applicant was the holder of a substantive visa in accordance with cl.820.211(d) and that he continues to meet that subclause at the time of this decision. Pursuant to clause 820.221(1), in order to be eligible for the grant of a subclass 820 (UK) visa, the visa applicant must also continue to meet the requirements of clause 820.211(2) at the time of this decision. Having regard to the evidence before the Tribunal, the Tribunal is satisfied that the visa applicant continues to meet the requirements of clause 820.211(2), hence satisfying the criteria in clause 820.221. Therefore, the Tribunal finds that the visa applicant meets the requirements of clauses 820.211(2) and 820.221.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 visa applicant and the sponsor were at least 18 years old. The visa 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.

Ratio Decidendi

Legal Principle Established

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 of Schedule 2 to the Regulations·reg 2.03AEdward 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).