Joe (Migration) - [2024] AATA 3870

Joe (Migration) [2024] AATA 3870 (13 September 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Mr Ericson Joe
VISA APPLICANT:  Ms Lucy Nanun Joe
CASE NUMBER:  2115541
DIBP REFERENCE(S):  BCC2020/1641120
MEMBER:Edward Howard
DATE:13 September 2024
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal remits the application for a Partner (Provisional) (Class UF) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 309 (Partner (Provisional)) visa:
·cl 309.211(2) of Schedule 2 to the Regulations
·cl 309.221(1) of Schedule 2 to the Regulations

Statement made on 13 September 2024 at 2:52pm

CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa - subclass 309 – parties validly married– financial contributions made by the review applicant over a period of many years – have a child together – parties represent themselves to other people as being married to each other – parties are in a genuine spousal relationship – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5F, 65
Migration Regulations 1994, r 1.15, Schedule 2, cls 309.211, 309.221
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 17 September 2021 to refuse to grant the visa applicant a Partner (Provisional) (Class UF) visa under s 65 of the Migration Act 1958 (the Act).
The visa applicant applied for the visa on 28 May 2020 on the basis of her relationship with her sponsor, the review applicant. At that time, Class UF contained only one subclass: Subclass 309 (Partner (Provisional). The criteria for the grant of this visa are set out in Part 309 of Schedule 2 to the Migration Regulations 1994 (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 did not satisfy cl 309.211 of Schedule 2 to the Regulations.
The review applicant appeared before the Tribunal on 10 September 2024 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant, Ms Lucy Nanun Joe.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
BACKGROUND
The review applicant is Mr Ericson Joe, aged 39 years, a permanent resident of Australia and the visa applicant is Ms Lucy Nanun Joe, age 36 years, a citizen of Liberia.
The parties met in about July 2006 in a refugee camp in Guinea. They commenced dating shortly thereafter and began living together on 2 January 2007. The parties had a child together, a son, born on 13 November 2007. The relationship between the review applicant and the child has been confirmed by DNA testing.
The review applicant arrived in Australia on a Subclass 202 Humanitarian Visa on 17…

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 Joe (Migration)

Details

AGLC: Joe (Migration) [2024] AATA 3870
Case: [2024] AATA 3870
Decision Date: 13 September 2024

CaseChat Overview and Summary

This matter concerned an application for a Partner (Provisional) (Class UF) visa by Ms Lucy Nanun Joe, a citizen of Liberia, sponsored by her husband, Mr Ericson Joe, a permanent resident of Australia. The parties met in 2006, began living together in 2007, and had a child together in 2007. After a period of separation and other relationships by Mr Joe, they rekindled their relationship in 2015, married in 2017, and subsequently lodged the visa application in 2020. The Tribunal, constituted by Edward Howard, was asked to consider the validity of their spousal relationship for visa purposes.

The primary legal issue before the Tribunal was whether Ms Joe met the criteria for a Subclass 309 Partner visa, specifically concerning the genuineness and commitment of her relationship with Mr Joe at the time of the application. This involved assessing whether the parties were in a genuine spousal relationship, considering various aspects including financial contributions, household arrangements, social presentation, and the nature of their commitment to each other, as outlined in regulation 1.15A of the Migration Regulations 1994. The Tribunal also had to determine the relevance of events occurring after the visa application date in assessing the relationship at the time of application.

The Tribunal reasoned that while there had been a period of distance and difficulties in the relationship, the evidence, including financial contributions, the birth of a child, their marriage, and their representation of themselves as a married couple, indicated a genuine spousal relationship. The Tribunal applied the principles that evidence of events after the visa application date could be relevant if it logically assisted in determining the existence of facts relevant to the issue at the time of application. Given the findings regarding the relationship, the Tribunal remitted the application for reconsideration by the Minister, directing that the visa applicant met certain criteria for the Subclass 309 visa.

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 review applicant is Mr Ericson Joe, aged 39 years, a permanent resident of Australia and the visa applicant is Ms Lucy Nanun Joe, age 36 years, a citizen of Liberia. The parties met in about July 2006 in a refugee camp in Guinea. They commenced dating shortly thereafter and began living together on 2 January 2007. The parties had a child together, a son, born on 13 November 2007. The relationship between the review applicant and the child has been confirmed by DNA testing. The review applicant arrived in Australia on a Subclass 202 Humanitarian Visa on 17 December 2008. On 14 April 2009 he lodged a Subclass 202 Humanitarian Visa on behalf of the visa applicant, which was subsequently refused. The review applicant remained in Australia and in contact with the visa applicant. However, by his own admission he had two brief relationships from which three further children were born. The evidence is that he has supported these three children Australia as well as the visa applicant and his son. The review applicant conceded that his relationship with the visa applicant suffered greatly as a result of the distance between them. He expressed great remorse at the two short term relationships that he had and for the hurt that it caused the visa applicant. The review applicant’s evidence is that in about 2015, he rekindled his relationship with the visa applicant. His evidence was that he had matured and came to the conclusion that the visa applicant was the person with whom he wished to spend his life. Subsequently, the review applicant returned to visit the visa applicant in Guinea in May 2017 and the parties were married in the presence of family members on 19 May 2017. The review applicant also returned to Guinea to spend time with his wife and son, from 2 December 2019 until 16 January 2020. On 28 May 2020, the parties lodged an application for a Subclass 309 Partner Visa. The review applicant was unable to travel to Guinea during the pandemic. Since the reopening of the Australian borders in early 2022, he has planned to travel, however he and his wife have discussed the expense involved and their hope that a decision would be reached shortly in relation to her visa. As a result, he has not returned to Guinea since that time.ISSUES AND LAW There is a two-stage process for offshore 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 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 first, temporary 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 review applicant were in a partner 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]

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 309 visa.DECISION The Tribunal remits the application for a Partner (Provisional) (Class UF) visa, with the direction that the visa applicant meets the following criteria for a Subclass 309 (Partner) visa:·cl 309.211(2) of Schedule 2 to the Regulations·cl 309.221(1) of Schedule 2 to the RegulationsEdward HowardMemberATTACHMENT - Extract from Migration Regulations 19941.15ASpouse(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

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