Katonitabua (Migration)

[2024] AATA 2105

Katonitabua (Migration) [2024] AATA 2105 (2 May 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ratunaisa Katonitabua

REPRESENTATIVE:  Ms Maryann Young

CASE NUMBER:  2304058

HOME AFFAIRS REFERENCE(S):          BCC2015/2851163

MEMBER:Mila Foster

DATE:2 May 2024

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to refuse the applicant a Partner (Temporary) (Class UK) Subclass 820 visa

Statement made on 02 May 2024 at 8:07am

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Spouse) – previous application remitted on review – relationship ceased and sponsorship withdrawn – claim of family violence – previous remittal directed that applicant must be taken to have satisfied specified criterion – permissible direction binding on ministerial delegate even if subsequent information suggests criterion not met – opinion of independent expert that applicant had not suffered family violence – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 65, 338, 349(2)(c), 376
Migration Regulations 1994 (Cth), r 4.15(1), Schedule 2, cls 820.211(2)(a), (d)(i), 820.221(3)(a), (b)(i)

CASE
Plaintiff M174/2016 v MIBP (2018) 264 CLR 217

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 1 March 2023 to refuse to grant the applicant a Partner (Temporary) (Class UK) Subclass 820 visa under s 65 of the Migration Act 1958 (Cth) (the Act). The decision is reviewable by the Tribunal under Part 5 of the Act (a Part-5 reviewable decision).[1]

   [1] s 338 of Migration Act 1958 (Cth) (the Act).

2. The applicant is a Fijian citizen who has been in Australia since arriving on a visitor visa in February 2014. He applied for the visa on 30 September 2015 on the basis that he was in a spouse relationship with Kylie-Anne Katonitabua,[2] an Australian citizen who sponsored him for the visa.

   [2] Also known as Kylie-Anne Lewis and Kylie-Anne Lewis-Minogue.

3. This review application relates to a second decision to refuse the applicant a Partner (Temporary) (Class UK) Subclass 820 visa. The applicant was previously refused the visa by another delegate on 4 October 2017. He applied to the Tribunal for review of that decision and on 27 April 2020 the Tribunal, differently constituted, remitted his visa application for reconsideration. After his application was remitted for reconsideration, the applicant claimed his spouse relationship with the sponsor ceased in December 2020 and that he suffered family violence committed by the sponsor.

4. At the time of the visa application was made, Class UK contained the Subclass 820 visa the criteria for which are set out in Part 820 of Schedule 2 to the Migration Regulations 1994 (the Regulations). Relevantly, the primary criteria for this visa include a time of application criterion that the applicant is the spouse or de facto partner of an Australian citizen, Australian permanent resident or eligible New Zealand citizen and is sponsored for the visa: cl 820.211(2), and a time of decision criterion that the applicant continues to meet the requirements in cl 820.211 unless certain circumstances exist: cl 820.221. The circumstances include that the applicant (or a member of the family unit) has suffered family violence committed by the sponsor: cl 820.221(3)(a) and (3)(b)(i).

5. The decision of the delegate which is the subject of the review currently before the Tribunal was made on the basis that the applicant did not satisfy cl 820.221 because he had not established that he had suffered family violence committed by the sponsor or the other requirements of that clause.  

6. For the following reasons, the Tribunal has concluded that the delegate’s decision should be set aside and a new decision substituted.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The evidence before the Tribunal includes the Department of Home Affairs file relating to the applicant’s visa application.[3] The Department file includes the decision made by the previous delegate on 4 October 2017 and the Tribunal decision made on 27 April 2020.

   [3] The Department file contains a non-disclosure certificate issued pursuant to s 376 of the Act. The information to which the certificate relates has either already been disclosed to the applicant by the Department or is not relevant to the Tribunal’s decision.

8. The previous delegate found the applicant did not satisfy cl 820.211(2) on two grounds: firstly, he did not meet the requirements of cl 820.211(2)(a) because there was insufficient evidence to demonstrate he was the spouse or de facto partner of the sponsor, and secondly, he did not meet the requirements of cl 820.211(2)(d)(i) which relates to applicants who, like the applicant, did not hold a substantive visa at the time of application. Upon review, the matter was remitted by the Tribunal on 27 April 2020 with the direction that the applicant met the criteria in cl 820.211(2)(d)(i), cl 820.211(2)(a) and cl 820.221.

9. In reviewing a Part-5 reviewable decision, the Tribunal may remit the matter for reconsideration in accordance with such directions or recommendations as are permitted by the Regulations: s 349(2)(c) of the Act. The permissible directions and recommendations for the purposes of the remittal power are set out in reg 4.15 of the Regulations. In relation to an application for a visa, the only permissible direction is that the applicant must be taken to have satisfied a specified criterion for the visa or entry permit: reg 4.15(1). Thus, the direction the Tribunal made on 27 April 2020 was a permissible direction.

10. A permissible remittal direction made by the Tribunal is binding on the Minister to comply with the direction. In Plaintiff M174/2016 v MIBP,[4] the High Court held that the power conferred on the Immigration Assessment Authority (IAA) to remit or refuse to grant the visa places a duty on the Minister to not only consider the remitted decision but to comply with any permissible direction when undertaking that reconsideration. This case applies to the Tribunal as the permissible direction power for the IAA under reg 4.43(1) is consistent with the wording under the Act for Part 5 reviews. The Department’s policy also makes this clear:

    If the AAT remits a visa application to the dept directing that the applicant meets one or more visa criteria, departmental decision makers are bound by and must follow those directions.

    … A delegate is bound by the AAT decision that a criterion is met even if information comes to the decision maker’s attention after the AAT decision has been made which suggests the criterion is not met.[5]

    [4] Plaintiff M174/2016 v MIBP (2018) 264 CLR 217 at [19].

    [5] Policy – Migration Act – Merits review instructions – AAT review of Part 5-reviewable decisions – Guide for primary decision makers, The role and powers of the AAT in regard to Part-5 reviewable xdecisions – Deciding the case (made 29 March 2017).

11. On 23 March 2021, while the applicant’s visa application was under reconsideration, the sponsor informed the Department that she wished to withdraw her sponsorship as her relationship with the applicant had broken down. The Department informed the applicant of this by letter dated 1 June 2021. On 6 July 2021 the applicant emailed the Department requesting that he be granted the visa despite the breakdown of the relationship on the basis that he had suffered family violence by the sponsor. The delegate referred the matter to an Independent Expert who formed the opinion that the applicant had not suffered relevant family violence. On the basis of that opinion the delegate found the applicant had not suffered family violence and thus did not satisfy cl 820.221. However, it was not open to the delegate to refuse the applicant’s visa application on that basis. In finding that the applicant did not satisfy cl 820.221 and refusing him the visa on that basis the delegate failed to comply with the permissible direction the Tribunal made on 27 April 2020 that the applicant satisfied cl 820.221. Hence, the decision made by the delegate on 1 March 2023 to refuse the applicant a Partner (Temporary) (Class UK) Subclass 820 visa must be set aside and a decision substituted that the visa is not refused.

    DECISION

12. The Tribunal sets aside the decision under review and substitutes a decision not to refuse the applicant a Partner (Temporary) (Class UK) Subclass 820 visa.

    Mila Foster
    Member