Ji (Migration) - [2023] AATA 4623

Ji (Migration) [2023] AATA 4623 (11 December 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mrs Yuling Ji
Ms Liwen Ma
REPRESENTATIVE:  Ms Yifan Gao (MARN: 1684639)
CASE NUMBER:  1920048
HOME AFFAIRS REFERENCE(S):          CLF2014/67300 CLF2019/29910
MEMBER:Edward Howard
DATE:11 December 2023
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal remits the application for a Partner (Residence) (Class BS) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 801 (Partner) visa:
·cl 801.221(2) of Schedule 2 to the Regulations

Statement made on 11 December 2023 at 11:34am

CATCHWORDS
MIGRATION – Partner (Residence) (Class BS) visa – Subclass 801 (Spouse) – parties are validly married – pool their resources for day-to-day household expenses and other financial commitments – parties’ household and living arrangements are consistent with that of a married couple in a genuine relationship – parties are in a genuine and continuing relationship – the relationship has ceased – relationship did exist at some point – applicant and sponsor – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5F, 65
Migration Regulations 1994, r 1.15, Schedule 2, cl 801.221
CASES
He v MIBP [2017] FCAFC 206

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 on 16 July 2019 to refuse to grant the applicants Partner (Residence) (Class BS) visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The first named applicant (the review applicant) applied for the visa on 7 May 2014 on the basis of her relationship with her sponsor. At that time, Class BS contained only one subclass: Subclass 801 (Partner). The criteria for the grant of this visa are set out in Part 801 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 applicant did not satisfy cl 801.221.
The applicants appeared before the Tribunal on 29 November 2023 to give evidence and present arguments. The Tribunal also received oral evidence from the review applicant and the sponsor. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
The applicants were represented in relation to the review.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
BACKGROUND
The evidence of the parties is that they met in July 2013 when the sponsor travelled to China to meet the review applicant. During his visit there the sponsor spent time with the review applicant and her daughter. Following his return to Australia, the parties kept in contact by phone and email.
The sponsor again travelled to China to visit the review applicant and her daughter in November 2013. During this…

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: Ji (Migration) [2023] AATA 4623
Case: [2023] AATA 4623
Decision Date: 11 December 2023

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered an application for a Partner (Residence) (Class BS) visa, Subclass 801 (Spouse). The applicant sought review of a decision concerning their eligibility for the permanent stage of the visa. The Tribunal was tasked with determining whether the relationship between the applicant and their sponsor met the relevant criteria at the time of the visa application.

The primary legal issue before the Tribunal was whether the applicant and sponsor were in a genuine and continuing spousal relationship at the time the visa application was made. This involved assessing whether the relationship met the requirements of regulation 1.15A(3) of the Migration Regulations 1994, and considering evidence that may have arisen after the date of the application to shed light on the nature of the relationship at that earlier time.

The Tribunal reasoned that while the relationship had ceased by the time of the Tribunal hearing, evidence of subsequent events could be considered if it logically demonstrated the existence or non-existence of the relationship at the time of the application. The Tribunal noted that the applicant had provided limited documentary evidence to the Department of Home Affairs but furnished further evidence to the Tribunal that was not available to the primary decision maker. Applying the principles from cases such as *Ally v MIAC* and *Jayasinghe v MIMA*, the Tribunal found that the applicant met criterion cl 801.221(2) of Schedule 2 to the Regulations.

Consequently, the Tribunal remitted the application for a Partner (Residence) (Class BS) visa for reconsideration. The Tribunal directed that the applicant be considered to have met the criteria for a Subclass 801 (Partner) visa, specifically cl 801.221(2). The decision also indicated that the second-named applicant, presumably the sponsor, would also be reconsidered in light of this direction.

Orders

Orders of the court

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Background

Background to the litigation

For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.BACKGROUND The evidence of the parties is that they met in July 2013 when the sponsor travelled to China to meet the review applicant. During his visit there the sponsor spent time with the review applicant and her daughter. Following his return to Australia, the parties kept in contact by phone and email. The sponsor again travelled to China to visit the review applicant and her daughter in November 2013. During this visit the parties claim that the sponsor expressed his love to the review applicant and the parties committed to their relationship. The sponsor was introduced and spent time with the review applicant’s family during this visit. The parties remained in contact and the review applicant travel to Australia in February 2014 with the sponsor paying for her airfare. Whilst the review applicant was in Australia, the sponsor proposed marriage and the parties were married on 12 April 2014. The parties applied for a subclass 820 visa/subclass 801 visa on 7 May 2014. They were granted a subclass 820 visa on 20 April 2015.ISSUES AND LAW There is a two-stage process for onshore Partner visas. A visa applicant must first hold a provisional visa, enabling them to remain in Australia on a temporary basis, prior to the grant of a permanent visa. The parties were granted a temporary subclass 820 visa on 20 April 2015. The grant of a permanent visa would generally depend on whether the relationship has continued for a period of at least two years. In this matter, the Tribunal is considering the second, permanent stage. Where the Tribunal is considering a criterion that requires the definition of spouse or de facto partner to be met at the time of the visa application, the information supplied in relation to the reg 1.15A(3) matters may relate to circumstances after the time of application. In forming a view of the relationship at the time of application, the Tribunal must consider all relevant evidence, which may include evidence of events after the date of application insofar as it assists in the task of determining whether the visa applicant and the sponsor were in a spousal relationship at the time of the application. Evidence of events after the visa application is relevant if it tends logically to show the existence or non-existence of facts relevant to the issue to be determined.[1] The Tribunal observes this to be a matter where the visa applicant submitted limited documentary evidence in support of his visa application to the Department of Home Affairs and then furnished the Tribunal with further evidence that was unavailable to the primary decision maker.[1] Ally v MIAC [2008] FCAFC 49 at [32]–[35]; Jayasinghe v MIMA [2006] FCA 1700 at [35], citing MIEA v Poche (1980) 4 ALD 139 at [24] per Deane J which held that evidence of subsequent events may be taken into account if it ‘tends to logically show the existence or non-existence of’ the relationship at that particular time; and see also Bretag v IRT [1991] FCA 582 at [13]–[15].

Evidence

Evidence Before The Court

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Decision

Reasons for decision

The delegate refused the second-named applicant on the basis that the review applicant had been refused. As the Tribunal has found that the review applicant has met cl 801.221(2) the appropriate course is for the Tribunal to also remit the second-named applicant to be reconsidered in light of the direction for the review applicant.DECISION The Tribunal remits the application for a Partner (Residence) (Class BS) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 801 (Partner) visa:·cl 801.221(2) of Schedule 2 to the RegulationsEdward HowardMember

Ratio Decidendi

Legal Principle Established

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