Goco (Migration) - [2025] ARTA 430

GOCO (MIGRATION) [2025] ARTA 430 (20 FEBRUARY 2025)
DECISION AND
REASONS FOR DECISION
Applicant:Ms Kimberly Jeane Goco
Respondent:  Minister for Immigration and Multicultural Affairs
Tribunal Number:  2119078

Tribunal:General Member Grant
Place:Melbourne
Date: 20 February 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(2) of Schedule 2 to the Regulations; and
·cl 820.221(2) of Schedule 2 to the Regulations.

Statement made on 20 February 2025 at 2:31pm
CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – genuine and continuing relationship – sponsor deceased – new relationship registered – Australian citizen child – money transfers – applicant’s care for the sponsor – applicant acceptance by the new partner’s family – decision under review remitted
LEGISLATION
Administrative Review Tribunal Act 2024, s 106
Migration Act 1958, ss 5, 11A, 65
Migration Regulations 1994, Schedule 2, cls 820.211, 820.221; r 1.15
CASES
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 relevant Minister on 13 December 2021 to refuse to grant the visa applicant a Partner (Class BS) Subclass 820 visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 27 March 2019 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 applicant (who is not represented) applied for review of the delegate’s decision on 14 December 2021 via the Administrative Appeals Tribunal website. However the wrong application form was completed (with the applicant completing a form for review in the General Division instead of the Migration and Refugee Division). On the same day, the Tribunal requested that the correct form be completed and lodged. On 24 December 2021, the visa applicant completed the correct form applying for review of a decision in the Migration and Refugee Division of the Administrative Appeals Tribunal and paid the required fee. In that application for review, she identified the decision she sought to review as the subclass 801 refusal.
Over the period after requesting review of the delegate’s decision and before the matter was constituted to a member, the visa applicant submitted extensive information related to her relationship with the sponsor, her ongoing relationship with him until his death, and that she has after his death established an ongoing relationship with a new partner with whom she has an…

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 Goco (Migration)

Details

AGLC: Goco (Migration) [2025] ARTA 430
Case: [2025] ARTA 430
Decision Date: 20 February 2025

CaseChat Overview and Summary

In the matter of Goco (Migration), the applicant, a non-citizen, sought judicial review of a decision by the Department of Home Affairs to refuse her application for a subclass 820 (Partner) visa. The central issue before the court was whether the applicant met the criteria for a subclass 820 visa, specifically whether she was the spouse of the deceased sponsor at the time of the visa application and whether she would have continued to be his spouse except for his death. The case hinged on the interpretation of the relevant provisions of the Migration Regulations and the definition of a spouse under the Migration Act 1958. The court was required to assess whether the applicant was in a valid marriage with the sponsor, and whether the relationship met the legal definition of a spouse under the Act.

The court examined the evidence provided by the applicant, including the marriage certificate and the circumstances surrounding the relationship. The court noted that the applicant and the sponsor were legally married, satisfying the requirement of being married under a marriage valid for the purposes of the Act. The court also considered the genuineness and continuity of the relationship, the commitment of the couple, and the nature of their household. The court concluded that the applicant satisfied the criteria for a subclass 820 visa as she was the spouse of the sponsor at the time of application and would have continued to be his spouse except for his death.

In light of its findings, the court set aside the decision under review and remitted the matter to the Department for reconsideration. The court held that the applicant met the criteria for a subclass 820 (Partner) visa, as she was the spouse of the deceased sponsor at the time of application and would have continued to be his spouse except for his death. The court emphasised that the applicant satisfied the requirements of cl 820.211(2) and cl 820.221(2) of Schedule 2 to the Migration Regulations. The decision underscores the importance of the validity of the marriage and the genuineness of the relationship in determining the eligibility for a subclass 820 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 visa applicant was granted a subclass 300 visa on 2 November 2017 due to her intention to marry the sponsor, Gregory Robert Sawers. She first arrived in Australia on that visa on 31 January 2018. That visa subsequently ceased and the applicant departed Australia on 19 August 2018, returning on a Subclass 600 visitor visa on 21 January 2019. On 25 January 2019, the applicant and sponsor married at the Registry of Births, Deaths and Marriages in Sydney, New South Wales, and lodged an application for a subclass 820/801 visa on 27 March 2019. The sponsor died from hepatocellular carcinoma at the home he shared with the visa applicant on 26 November 2020. The marriage and death certificates have been provided to the Department by the applicant. Clause 820.211(2)(a) requires that at the time the visa application was made, the applicant is the spouse or de facto partner of an Australian citizen or Australian permanent resident or an eligible New Zealand citizen. In the present case the applicant claimed to be the spouse of the sponsor who was an Australian citizen. Clause 820.221(2) requires, at the time of decision, (in situations such as that of the visa applicant in this case) the visa applicant would have continued to be the spouse of the sponsor except that the sponsor has died. ‘Spouse’ is defined in s 5F of the Act and provides that a person is the spouse of another where the two persons are in a married relationship. Persons in a married relationship must be married to each other under a marriage that is valid for the purposes of the Act, there must be a mutual commitment to a shared life as a married couple to the exclusion of all others, the relationship must be genuine and continuing, and the couple must live together, or not live separately and apart on a permanent basis: s 5F(2)(a)-(d). In forming an opinion about these matters, regard must be had to all of the circumstances of the relationship. This includes evidence of the financial and social aspects and the nature of the parties’ household and their commitment to each other as set out in reg 1.15A(3), which is extracted in the attachment to this decision. Each of the specific matters contained in reg 1.15A(3) is effectively a question which must be answered: He v MIBP [2017] FCAFC 206.Are the parties validly married? If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. Evidence has been provided of the parties’ marriage in Sydney on 25 January 2019. On the evidence, the parties were married to each other under a marriage that is valid for the purposes of the Act as required by s 5F(2)(a). The issue in the present case is whether the visa applicant was the spouse of the sponsor at the time of application, and if so, whether she would have continued to be his spouse except that the sponsor has died. As footnoted above, cl 820.221(2) no longer requires the visa applicant to additionally demonstrate that she has developed close personal, cultural or business ties in Australia, which was the reason given for the refusal of the applicant’s subclass 820 visa.

Decision

Reasons for decision

On the basis of my findings above, the applicant satisfied cl 820.211(2) at the time of application and satisfies cl 820.221(2) at the time of making this decision. Consequently, the decision will be set aside with orders accordingly.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(2) of Schedule 2 to the Regulations; and·cl 820.221(2) of Schedule 2 to the Regulations

Ratio Decidendi

Legal Principle Established

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