Finau (Migration) - [2023] AATA 3915

Finau (Migration) [2023] AATA 3915 (15 November 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Palatoni Pladnium Finau
CASE NUMBER:  2316284
HOME AFFAIRS REFERENCE(S):          BCC2023/2633802
MEMBER:Kira Raif
DATE:15 November 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)(d)(ii) of Schedule 2 to the Regulations
·cl. 820.211(2)(a) of Schedule 2 to the Regulations
·cl 820.221 of Schedule 2 to the Regulations
·reg 2.03A

Statement made on 15 November 2023 at 2:45pm
CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner (Temporary)) – genuine and continuing relationship – duration of relationship – limited but acceptable evidence of financial, household and social aspects of relationship and nature of commitment – application made more than 28 days after last substantive visa ceased – discretion to waive criterion – sponsor’s and child’s physical health – applicant father figure to sponsor’s child – immigration detention – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5CB, 65
Migration Regulations 1994 (Cth), r 2.03A, Schedule 2, cls 820.211(2)(a), (d)(ii), 820.221, Schedule 3, item 3001
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
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 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 visa applicant is a national of Tonga, born in November 1988. He applied for the visa on 2 May 2023 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 was not met because the applicant did not meet the requirements of Item 3001 of Schedule 3 to the Migration Regulations and the delegate found there were no reasons to waive this requirement. The delegate was also not satisfied the applicant was the de facto spouse of the sponsor. The applicant seeks review of the delegate’s decision.
The applicant appeared before the Tribunal on 15 November 2023 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s partner. 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 UK contained only one subclass: Subclass 820 (Partner (Temporary)). The criteria for the grant of this visa are set out in Part 820 of Schedule 2 to the Migration Regulations 1994 (the Regulations).
Clause 820.211(2)(a) and 820.221 require that at the time the visa application was made, and at the time of this decision, the applicant is…

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: Finau (Migration) [2023] AATA 3915
Case: [2023] AATA 3915
Decision Date: 15 November 2023

CaseChat Overview and Summary

This matter concerned an application for a Partner (Temporary) (Class UK) visa, Subclass 820, brought before the Tribunal by the applicant. The core of the dispute revolved around whether the applicant had demonstrated a genuine and continuing relationship with their sponsor, and whether the Tribunal had the discretion to waive a criterion relating to the timing of the visa application. The applicant's application was made more than 28 days after their last substantive visa ceased.

The Tribunal was required to determine whether the applicant had provided sufficient evidence to satisfy the criteria for a genuine and continuing relationship, despite the limited evidence presented regarding the financial, household, and social aspects of the relationship, and the nature of the commitment. Furthermore, the Tribunal had to consider whether to exercise its discretion to waive the requirement that the application be made within 28 days of the cessation of the applicant's last substantive visa. The Tribunal also had to consider the sponsor’s and child’s physical health, and the applicant’s role as a father figure to the sponsor’s child, in the context of immigration detention.

The Tribunal found that while the evidence of the relationship's duration was limited, it was nonetheless acceptable. The Tribunal also considered the applicant's role as a father figure to the sponsor's child and the circumstances of immigration detention. Ultimately, the Tribunal determined that the appropriate course was to remit the application for the visa to the Minister for consideration of the remaining criteria. The Tribunal directed that the applicant met specific criteria, including cl. 820.211(2)(d)(ii), cl. 820.211(2)(a), cl 820.221 of Schedule 2 to the Regulations, and reg. 2.03A.

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)(d)(ii) of Schedule 2 to the Regulations·cl. 820.211(2)(a) of Schedule 2 to the Regulations ·cl 820.221 of Schedule 2 to the Regulations·reg 2.03AKira RaifSenior Member

Ratio Decidendi

Legal Principle Established

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