FAHME (Migration) - [2023] AATA 3079

FAHME (Migration) [2023] AATA 3079 (20 September 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr ADNAN FAHME
REPRESENTATIVE:  Ms Amina Youssef
CASE NUMBER:  1601442
HOME AFFAIRS REFERENCE(S):          CLF2013/257640
MEMBER:Kira Raif
DATE:20 September 2023
PLACE OF DECISION:  Sydney
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 820.211(2)(d)(ii) of Schedule 2 to the Regulations
·cl 820.221 of Schedule 2 to the Regulations

Statement made on 20 September 2023 at 12:11pm
CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – genuine and continuing relationship – primary notification affected by error – relationship ceased – no substantive visa at the time of application – compelling reasons – sole parental responsibility of an Australian citizen child – joint residential tenancy agreement and utility bills – joint bank statements – previous mutual commitment to a shared life – decision under review remitted
LEGISLATION
Child Support (Assessment) Act 1989
Family Law Act 1975
Migration Act 1958, ss 5, 65, 66
Migration Regulations 1994, Schedule 2, cls 820.211, 820.221; Schedule 3, Criterion 3001; r 1.15
CASES
Babicci v MIMIA (2005) 141 FCR 285
He v MIBP [2017] FCAFC 206
MZYPZ v MIAC [2012] FCA 478
Plaintiff M64/2015 v MIBP [2015] HCA 50
Sandor v MICMA [2023] FCA 434
Srour v MIMIA (2006) 155 FCR 441
Waensila v MIBP [2016] FCAFC 32
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 and Border Protection 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 is a national of Lebanon, born in February 1984. He applied for the visa on 18 October 2013 on the basis of his relationship with his sponsor. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl 820.211 because the delegate was not satisfied the applicant was the spouse of the sponsor and also because the delegate was not satisfied the applicant met the requirements in Item 3001 of Schedule 3.
The applicant sought review of the Tribunal’s decision. In March 2016 the Tribunal had found that it had no jurisdiction to consider the matter as the application for review was lodged out of time. In November 2016 the Court dismissed the application’s application for judicial review of the Tribunal’s decision.
In April 2023 the applicant requested the Tribunal to reconsider whether it had jurisdiction to conduct the review, claiming that the primary notification was affected by several errors.
The Tribunal has formed the view that the primary notification was affected by the error identified in Sandor v MICMA [2023] FCA 434. In that case, the Court held that the notification letter in question did not…

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: FAHME (Migration) [2023] AATA 3079
Case: [2023] AATA 3079
Decision Date: 20 September 2023

CaseChat Overview and Summary

This matter concerned an application for a Partner (Temporary) (Class UK) visa, Subclass 820, brought before the Administrative Appeals Tribunal. The applicant sought review of a decision that had refused to grant the visa. The core of the dispute revolved around whether the applicant had established a genuine and continuing relationship with their partner, and whether certain errors in the primary notification and the cessation of the relationship were relevant to the assessment.

The Tribunal was required to determine whether the applicant met the criteria for a Subclass 820 visa, specifically concerning the genuineness and continuation of the relationship, and whether compelling reasons existed to grant the visa despite the relationship having ceased. The Tribunal also had to consider the applicant's sole parental responsibility for an Australian citizen child, and the evidence presented, including a joint residential tenancy agreement, utility bills, and joint bank statements, as indicators of a previous mutual commitment to a shared life.

In its reasoning, the Tribunal found that the applicant met specific criteria for the visa, namely cl 820.211(2)(a), cl 820.211(2)(d)(ii), and cl 820.221 of Schedule 2 to the Regulations. The Tribunal acknowledged the evidence of a joint tenancy, utility bills, and bank statements as demonstrating a shared life. Given these findings, the Tribunal determined that the appropriate course was to remit the application for the visa to the Minister for consideration of the remaining criteria.

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 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 820.211(2)(d)(ii) of Schedule 2 to the Regulations ·cl 820.221 of Schedule 2 to the RegulationsKira RaifSenior Member

Ratio Decidendi

Legal Principle Established

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