Huynh (Migration) - [2023] AATA 92

Huynh (Migration) [2023] AATA 92 (7 February 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Van Tri Huynh
REPRESENTATIVE:  Mr Huu Loc Nguyen (MARN: 1801018)
CASE NUMBER:  1818383
HOME AFFAIRS REFERENCE(S):          BCC2017/2269707
MEMBER:Deputy President J.L Redfern PSM
DATE:7 February 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 of Schedule 2 to the Regulations; and
·cl 820.221(3) of Schedule 2 to the Regulations.

Statement made on 07 February 2023 at 3:00pm

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Spouse) – delegate not satisfied about genuine relationship – sponsor in previous relationship – Tribunal satisfied about genuine relationship at time of application – claims corroborated by oral evidence of witnesses at hearing – relationship breakdown – family violence claim – DNA testing – ongoing legal obligations in respect of a child – child exception established – no substantive visa at of the time of application – Schedule 3 – compelling circumstances established – decision under review remitted
PROCEDURE – whether application valid – requirements should be construed broadly – application valid
LEGISLATION
Migration Act 1958 (Cth), ss 5F, 65
Migration Regulations 1994 (Cth), rr 1.15A, 1.21, 1.23, 1.23(10)(c), 1.25, Schedule 1 – Item 1124B(3)(e), Schedule 2 – cls 820.211(1), 820.211(2)(a), 820.211(2)(d), 820.211(2)(d)(ii), 820.221(1), 820.221(2), 820.221(3), 820.221(3)(b)(i), 820.221(3)(b)(ii) Schedule 3, criterion 3001, 3003, 3004
CASES
Babicci v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 141 FCR 285
Fitch v Migration Review Tribunal [2004] FCA 1673
He v Minister for Immigration and Border Protection [2017] FCAFC 206
MZYPZ v Minister for Immigration and Citizenship [2012] FCA 478
Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50
Waensila vMinister for Immigration and Border Protection [2016] FCAFC 32
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.
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 27 June 2017 on the basis of his relationship with his sponsor, [name]. 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.
Relevant to this matter the primary criteria include cl 820.211 and 820.221, which require that at the time of…

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 Huynh (Migration)

Details

AGLC: Huynh (Migration) [2023] AATA 92
Case: [2023] AATA 92
Decision Date: 7 February 2023

CaseChat Overview and Summary

The case concerned an application for a Partner (Temporary) (Class UK) visa, Subclass 820. The applicant sought review of a decision by the Migration Review Tribunal (MRT) which had affirmed the delegate's refusal of the visa. The primary dispute revolved around whether the applicant and his sponsor were in a genuine and continuing spousal relationship, and whether certain Schedule 3 criteria were met.

The court was required to determine whether the applicant had established a genuine and continuing spousal relationship with his sponsor, particularly in light of the sponsor's previous marriage and the applicant's claims of family violence and relationship breakdown. Additionally, the court had to consider whether the applicant met the criteria for the child exception under Schedule 3, and whether compelling circumstances existed to waive the usual Schedule 3 requirements due to the applicant not holding a substantive visa at the time of application.

The court reasoned that the Tribunal had erred in its assessment of the genuine relationship, particularly by not adequately considering the corroborating oral evidence presented by witnesses at the hearing. The court also found that the applicant had established the child exception under Schedule 3, noting that the child did not need to be a biological offspring of the couple and that ongoing legal obligations in respect of the child were sufficient. Furthermore, the court determined that compelling circumstances were established for the waiver of Schedule 3 requirements.

Consequently, the court remitted the application for the visa to the Minister with a direction that the applicant met the criteria for a Subclass 820 visa under cl 820.211 and cl 820.221(3) of Schedule 2 to the Regulations.

Orders

Orders of the court

Full text does not contain this section.

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 of Schedule 2 to the Regulations; and·cl 820.221(3) of Schedule 2 to the Regulations.J.L Redfern PSMDeputy PresidentATTACHMENT - 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).Schedule 33001(1)The application is validly made within 28 days after the relevant day (within the meaning of subclause (2)).(2)For the purposes of subclause (1) and of clause 3002, the relevant day, in relation to an applicant, is:(a)if the applicant held an entry permit that was valid up to and including 31 August 1994 but has not subsequently been the holder of a substantive visa — 1 September 1994; or(b)if the applicant became an illegal entrant before 1 September 1994 (whether or not clause 6002 in Schedule 6 of the Migration (1993) Regulations applied or section 195 of the Act applies) and has not, at any time on or after 1 September 1994, been the holder of a substantive visa — the day when the applicant last became an illegal entrant; or(c)if the applicant:(i) ceased to hold a substantive or criminal justice visa on or after 1 September 1994; or(ii) entered Australia unlawfully on or after 1 September 1994;whichever is the later of:(iii) the last day when the applicant held a substantive or criminal justice visa; or(iv) the day when the applicant last entered Australia unlawfully; or(d)if the last substantive visa held by the applicant was cancelled, and the Tribunal has made a decision to set aside and substitute the cancellation decision or the Minister's decision not to revoke the cancellation — the later of:(i) the day when that last substantive visa ceased to be in effect; and(ii) the day when the applicant is taken, under sections 368C, 368D and 379C of the Act, to have been notified of the Tribunal's decision.3003If:(a)the applicant has not, on or after 1 September 1994, been the holder of a substantive visa; and(b)on 31 August 1994, the applicant was either:(i) an illegal entrant; or(ii) the holder of an entry permit that was not valid beyond 31 August 1994;the Minister is satisfied that:(c)the applicant last became an illegal entrant, or, in the case of a person referred to in subparagraph (b)(ii), last became a person in Australia without a substantive visa, because of factors beyond the applicant's control; and(d)there are compelling reasons for granting the visa; and(e)the applicant has complied substantially with the conditions that apply or applied to:(i) the last of any entry permits held by the applicant (other than a condition of which the applicant was in breach solely because of the expiry of the entry permit); and(ii) any subsequent bridging visa; and(f)the applicant would have been entitled to be granted an entry permit equivalent to a visa of the class applied for if the applicant had applied for the entry permit immediately before last becoming an illegal entrant or, in the case of a person referred to in subparagraph (b)(ii), if the applicant had applied for the entry permit on 31 August 1994; and(g)the applicant intends to comply with any conditions subject to which the visa is granted; and(h)the last entry permit (if any) held by the applicant was not granted subject to a condition that the holder would not, after entering Australia, be entitled to be granted an entry permit, or a further entry permit, while the holder remained in Australia.3004If the applicant:(a)ceased to hold a substantive or criminal justice visa on or after 1 September 1994; or(b)entered Australia unlawfully on or after 1 September 1994 and has not subsequently been granted a substantive visa;the Minister is satisfied that:(c)the applicant is not the holder of a substantive visa because of factors beyond the applicant's control; and(d)there are compelling reasons for granting the visa; and(e)the applicant has complied substantially with:(i) the conditions that apply or applied to:(A)the last of any entry permits held by the applicant (other than a condition of which the applicant was in breach solely because of the expiry of the entry permit); and(B)any subsequent bridging visa; or(ii) the conditions that apply or applied to:(A)the last of any substantive visas held by the applicant (other than a condition of which the applicant was in breach solely because the visa ceased to be in effect); and(B)any subsequent bridging visa; and(f)either:(i) in the case of an applicant referred to in paragraph (a) — the applicant would have been entitled to be granted a visa of the class applied for if the applicant had applied for the visa on the day when the applicant last held a substantive or criminal justice visa; or(ii) in the case of an applicant referred to in paragraph (b) — the applicant would have satisfied the criteria (other than any Schedule 3 criteria) for the grant of a visa of the class applied for on the day when the applicant last entered Australia unlawfully; and(g)the applicant intends to comply with any conditions subject to which the visa is granted; and(h)if the last visa (if any) held by the applicant was a transitional (temporary) visa, that visa was not subject to a condition that the holder would not, after entering Australia, be entitled to be granted an entry permit, or a further entry permit, while the holder remained in Australia.

Ratio Decidendi

Legal Principle Established

As observed by Dowsett J in Fitch v Migration Review Tribunal [2004] FCA 1673 at [4] in relation to a provision in cl 801 which is in the same terms, a visa applicant must satisfy items (A) and (B) and the sponsoring spouse must satisfy one of the items (C), (D) and (E) in relation to the same child. His Honour notes there is no requirement that the child in question be an offspring of the relationship between the visa applicant and the sponsoring spouse or that either of them be a biological parent of the child. CONSIDERATIONBackground and outline of evidence The applicant applied for a Student Subclass 573 visa in Vietnam and arrived in Australia, as the holder of this visa, on 26 July 2013. He applied for a Skilled Subclass 189 visa on 18 March 2014, which was granted the following day. This visa was cancelled by the Department on 22 May 2015 because there was incorrect information provided in the visa application. The applicant sought a review of this decision by the former Migration Review Tribunal (MRT) on 5 June 2015. Following amalgamation, the Tribunal affirmed the decision under review on 5 December 2015. On 21 January 2016 the applicant lodged an application for a protection visa, which was refused on 14 July 2017. The applicant applied for review of this decision to the Tribunal on 21 July 2017 and this application is currently on foot. The applicant’s sponsor married her former partner on 6 August 2012 and on 12 February 2015, she was granted a permanent partner visa based on this relationship. According to the current application, the applicant claims that he first met the sponsor in 2014, while she was still married. It is claimed that [sponsor’s] relationship with her husband broke down in July 2015 and that the applicant and [sponsor] entered into a committed shared life together to the exclusion of all others from January 2016. They moved in together and lived in a house in Canley Vale from December 2015. The sponsor became pregnant in November 2015 and on 12 August 2016 she gave birth to a baby boy. The applicant is the biological father of the child. The sponsor divorced her ex-husband as evidenced by the court order made on 31 January 2017, with the divorce to take effect on 1 March 2017, and on 30 April 2017, the applicant and sponsor married. It is claimed by the applicant that he and the sponsor were in a spousal relationship until July 2020, when he was kicked out of the family home by her. He claims that the relationship between him and [sponsor] deteriorated because of her increased drinking after the birth of their child and that he suffered both physical and psychological abuse from her after this time. He persevered but became increasingly anxious until the marriage broke down in July 2020. The applicant’s representative advised the Tribunal of this in correspondence dated 20 July 2020. The applicant provided detailed evidence in support of this claim prior to the first hearing, including a statutory declaration from him setting out the details of the conduct, statutory declarations corroborating his claims from close friends, reports from a registered psychologist and social worker, evidence of his application for victims support and details of the acceptance of his claim from Victims Services New South Wales by letter dated 10 July 2020. The applicant was approved for counselling, which he received over at least 19 sessions during 2020 and 2021.