Forbes (Migration) - [2025] ARTA 1193

FORBES (MIGRATION) [2025] ARTA 1193 (11 JULY 2025)
DECISION AND
REASONS FOR DECISION
Applicant:Mrs Sophie Melanie Forbes
Respondent:  Minister for Immigration and Citizenship
Tribunal Number:  2202714

Tribunal:Senior Member M Sripathy
Place:Sydney
Date: 11 July 2025
Decision:The Tribunal sets aside the decision under review and remits the application for a Partner (Temporary) (Class UK) visa for reconsideration in accordance with the order that the applicant meets the following criteria for a Subclass 820 (Partner) visa:
·cl 820.211 of Schedule 2 to the Regulations.
·cl 820.221 of Schedule 2 to the Regulations.

Statement made on 11 July 2025 at 1:55pm
CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – genuine and continuing relationship – validly married – financial, household and social aspects of relationship and nature of commitment – length of relationship – support during injury and surgery, travel and meeting applicant’s family – statutory declarations, documentation and supporting statements – decision made without hearing necessary – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5F(2), 65
Administrative Review Tribunal Act 2024 (Cth), s 106(3)
Migration Regulations 1994 (Cth),1.15A(3), Schedule 2, cls 820.211(2), 820.221
CASE
He v MIBP [2017] FCAFC 206
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister 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 21 April 2020 on the basis of her relationship with her 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 10 February 2022 on the basis that the visa applicant did not satisfy cl 820.211 and 820.221 because the delegate was not satisfied the evidence and information provided was sufficient to demonstrate that she is the spouse or de facto partner of the sponsor, as defined under section 5F and 5CB of the Migration Act.
The applicant applied for review of the decision to the Administrative Appeals Tribunal on 28 February 2022.
On 14 October 2024, the Administrative Appeals Tribunal (AAT) became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), proceedings in the AAT that were not finalised before 14 October 2024 are to be continued and finalised by the Tribunal. Anything done in relation to the proceeding before 14 October 2024 is taken to have been done by the Tribunal.
In July 2023 the applicant submitted various emails attaching photographs and…

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 Forbes (Migration)

Details

AGLC: Forbes (Migration) [2025] ARTA 1193
Case: [2025] ARTA 1193
Decision Date: 11 July 2025

CaseChat Overview and Summary

The case of Forbes (Migration) involved an applicant from the UK seeking a Partner (Temporary) (Class UK) visa, subclass 820, under the sponsorship of Shane Dowe, an Australian citizen. The primary issue before the court was whether the applicant could establish a genuine and continuing spousal relationship with the sponsor. The application was initially refused due to insufficient evidence of a genuine spousal relationship. The applicant and sponsor submitted additional evidence, including statutory declarations and photographs, to support their claim. The Tribunal found that the decision to refuse the visa was flawed as it did not properly consider the evidence provided and the relevant criteria under the Migration Regulations 1994.

The court was required to determine whether the Minister had appropriately considered the evidence and the criteria set out in the Migration Regulations 1994 for assessing the genuineness of a spousal relationship. The criteria included financial, household, social aspects, and the nature of the commitment between the parties. The court had to assess whether the decision-maker had made an error in law or in procedure, particularly whether the decision was made without a hearing when one might have been necessary. Furthermore, the court had to consider whether the decision was unreasonable or whether it was based on an incorrect application of the law.

The Tribunal concluded that the decision to refuse the visa was flawed because it did not adequately consider the evidence provided by the applicant and sponsor. The evidence, including statutory declarations from family and friends, photographs, and documentation, supported the applicant’s claim of a genuine spousal relationship. The Tribunal set aside the decision and remitted the application to the Minister for reconsideration, directing that the Minister should consider the remaining criteria for a Subclass 820 visa in light of the additional evidence provided.

The final orders of the Tribunal were that the decision under review be set aside and the matter be remitted to the Minister for reconsideration. The Tribunal specified that the Minister should consider the evidence in accordance with the criteria outlined in clauses 820.211 and 820.221 of Schedule 2 to the Migration Regulations 1994, which pertain to the genuineness of the spousal relationship. The applicant was thus granted an opportunity to resubmit her application with the additional evidence, ensuring a fair assessment of her eligibility for the visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the decision under review is set aside and the matter be remitted for reconsideration.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in the present case is whether the applicant is the spouse of the sponsoring partner. The applicant is a 32-year-old British born national. She is sponsored for the application by Shane Dowe, a 47-year-old Australian born citizen. The parties stated that they met in October 2019 in Warwick Farm NSW and married on 4 April 2020. The sponsor declares that he has three children born 1999, 2000 and 2018. He declares two previous relationships, a marriage to Bridget Dodd from January 2011 to March 2013, from which there was one child, and a de facto relationship with Renee Jackson between April 2016 to June 2018 from which there was one child. He states he has never sponsored a partner for a visa. In a subsequently lodged Form 1023 Notification of incorrect information submitted on 18 October 2021 correct information that the sponsor sponsored Bridget Dodds for a partner visa in 2009 was provided. The following evidence was submitted with the application in support: ceremonial certificate of marriage; birth and ID documents relating to applicant and sponsor; sponsor’s divorced certificate relating to divorce from Bridget Dodd, Statutory Declaration Form 888 from Steven McKay (step father of the sponsor) dated 13 April 2020; Bianca Brady (mutual friend of the parties) dated 4 April 2020; Kimorla Moroney (friend of the applicant through employment) dated 15 April 2020. In response to a request for further information, on 18 August 2021, the applicant and sponsor provided Statutory Declarations detailing their respective backgrounds, inception and development of the relationship and circumstances of the relationship. On 27 November 2021 the Department sent a further request for evidence of the relationship and identification for the Statutory Declarations from supporting witnesses previously provided. No further evidence was received, and the application was refused on 10 February 2022 on the basis of insufficient evidence to demonstrate a genuine spousal relationship. The Tribunal observes there is no other information on Department file documents provided to the Tribunal to indicate any specific concerns, other than insufficient evidence for the decision.Evidence before the Tribunal In July 2023 the applicant submitted further evidence in support of the application:·Various photographs of her and the sponsor at a friend’s wedding; during their visit to England in August 2022; the sponsor in hospital following an injury; photos of applicant and sponsor celebrating each other’s birthdays, and birthday of sponsor’s brother in 2022 and 2023. ·Statutory Declarations Form 888 from Thao McKay, wife of the brother of the sponsor, solicitor, dated 18 April 2023, and Ryan McKay, (half) brother of the sponsor, dated 12 April 2023, attesting to their knowledge of the relationship between the applicant and sponsor based on their personal observations of them together, socialising with them and visiting their home.

Decision

Reasons for decision

Given the findings above, the appropriate course is to set aside the decision under review and remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 820 visa.DECISION The Tribunal sets aside the decision under review and remits the application for a Partner (Temporary) (Class UK) visa for reconsideration in accordance with the order that the applicant meets the following criteria for a Subclass 820 (Partner) visa:·cl 820.211 of Schedule 2 to the Regulations·cl 820.221 of Schedule 2 to the Regulations.ATTACHMENT - Extract from Migration Regulations 19941.15A Spouse(1)For subsection 5F (3) of the Act, this regulation sets out arrangements for the purpose of determining whether 1 or more of the conditions in paragraphs 5F (2) (a), (b), (c) and (d) of the Act 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 married to 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 sets aside the decision under review and remits the application for a Partner (Temporary) (Class UK) visa for reconsideration in accordance with the order that the applicant meets the following criteria for a Subclass 820 (Partner) visa:·cl 820.211 of Schedule 2 to the Regulations·cl 820.221 of Schedule 2 to the Regulations.ATTACHMENT - Extract from Migration Regulations 19941.15A Spouse(1)For subsection 5F (3) of the Act, this regulation sets out arrangements for the purpose of determining whether 1 or more of the conditions in paragraphs 5F (2) (a), (b), (c) and (d) of the Act 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 married to 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).