Ilyas (Migration) - [2023] AATA 965

Ilyas (Migration) [2023] AATA 965 (2 April 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ms Urooj Ilyas
REPRESENTATIVE:  Mr Andrew Woo
CASE NUMBER:  1903986
HOME AFFAIRS REFERENCE(S):          BCC2017/3360242
MEMBER:Stephen Conwell
DATE:2 April 2023
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.

Statement made on 2 April 2023 at 10:44am
CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Spouse) – application made more than 28 days after last substantive visa ceased – relationship registered – limited evidence of financial, household and social aspects of relationship and nature of commitment – anti-social and aggressive behaviour by partner – relationship ceased and sponsorship withdrawn – family violence referred to but not formally claimed – new relationship, marriage and one child – request for referral for ministerial consideration not granted – applicant can request directly – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5CB(2), 65, 359(2), 359C(1), 360(3), 363A, 376
Migration Regulations 1994 (Cth), rr 1.09A(3), 1.23, 1.24, 1.25, 2.03A, Schedule 2, cl 820.211(2)(c), (d)(ii), Schedule 3, criterion 3001
CASES
Hasran v MIAC [2010] FCAFC 40
He v MIBP [2017] FCAFC 206
Singh v MIBP [2016] FCCA 114
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 14 September 2017 on the basis of her relationship with her then sponsor, Mr Mansoor Ali. 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 the basis that the visa applicant (the applicant) did not satisfy cl.820.211(2)(d)(ii) because she did not meet Schedule 3 criterion 3001 in that she ceased to hold a substantive visa more than 28 days prior to lodging the visa application. The delegate further found that there were no compelling reasons for not applying the Schedule 3 criteria.
The applicant was represented in relation to the review by her registered migration agent (representative). The applicant provided a copy of the delegate’s decision to the Tribunal for the purposes of the review.
By email of 1 December 2022 the representative wrote to the Tribunal, stating:
Thanks for your email. My client is agreeable to waiving her hearing rights.
I am in the process of collating all the relevant documents re her current relationships (sic) and should be able to provide those documents in the next 7…

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

Case: [2023] AATA 965
Decision Date: 2 April 2023

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered an application for a Partner (Temporary) (Class UK) visa, subclass 820 (Spouse). The applicant's application was made more than 28 days after their last substantive visa ceased. While the relationship was registered, the evidence provided regarding the financial, household, and social aspects of the relationship, as well as the nature of the commitment, was limited. The Tribunal also noted that the applicant's former partner exhibited anti-social and aggressive behaviour, leading to the cessation of the relationship and withdrawal of sponsorship. Family violence was referred to but not formally claimed. The applicant subsequently entered into a new relationship, married, and had a child.

The primary legal issue before the Tribunal was whether to exercise its discretion to refer the applicant's case for ministerial consideration under the guidelines set out in the Department's Procedures Advice Manual (PAM3). This consideration was in the context of the applicant's failure to meet the standard criteria for the visa, including the timing of the application and the limited evidence of the relationship's genuineness. The Tribunal was required to assess whether the circumstances warranted a referral for the Minister's discretionary power to grant a visa outside the usual criteria.

The Tribunal carefully considered the applicant's case against the relevant ministerial guidelines. It concluded that the circumstances did not warrant a referral for ministerial consideration. The Tribunal affirmed the delegate's decision not to grant the visa. However, the Tribunal noted that the applicant retained the ability to make a direct request to the Minister for consideration of their case. The Tribunal affirmed the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.

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

The Tribunal has carefully considered the applicant’s case against the ministerial guidelines relating to the discretionary power set out in the Department’s Procedures Advice Manual (PAM3) but has decided not to refer the matter. The Tribunal notes that the applicant can still make a request directly to the Minister. DECISION The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.Stephen ConwellMember

Ratio Decidendi

Legal Principle Established

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