Khan (Migration) - [2023] AATA 1890

Khan (Migration) [2023] AATA 1890 (19 June 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Muhammad Umar Shehzad Khan
REPRESENTATIVE:  Mr Mark Edward Northam (MARN: 1175508)
CASE NUMBER:  1826589
HOME AFFAIRS REFERENCE(S):          BCC2016/1724901
MEMBER:Moira Brophy
DATE:19 June 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(2)(c ) of Schedule 2 to the Regulations; and
·Cl 820.221 (4) of Schedule 2 to the Regulations.

Statement made on 19 June 2023 at 3:41pm

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – genuine and continuing relationship – sponsorship limitation requirement – compelling circumstances – sponsor’s complex medical history – more than five years have passed at the time of decision – joint financial decision-making – shared household responsibilities – joint social activities and travel – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5, 65
Migration Regulations 1994, Schedule 2, cls 820.211, 820.221; rr 1.03, 1.15, 1.20
CASES
Babicci v MIMIA [2004] FCA 1645
Babicci v MIMIA [2005] FCAFC 77
He v MIBP [2017] FCAFC 206
Paduano v Minister for Immigration & Multicultural and Ethnic Affairs [2005] FCA 211
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 24 August 2018 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 12 May 2016 on the basis of his relationship with his sponsor. 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 applicant did not satisfy cl 820.211 because the delegate was not satisfied that the applicant was in a genuine and continuing relationship with his sponsor and the delegate was also not satisfied there were compelling circumstances affecting the sponsor to warrant a waiver of the requirements of regulation 1.20J.
The applicant, Mr Muhamad Umar Shehzad Khan appeared before the Tribunal on 17 May 2023 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor, Ms Puna Raea.
The applicant was represented in relation to the review. The representative attended the Tribunal hearing.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
Background
The applicant, Mr Muhamad Umar Shehzad Khan is a 38-year-old male currently residing in Sydney. He has declared no…

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 Khan (Migration)

Details

AGLC: Khan (Migration) [2023] AATA 1890
Case: [2023] AATA 1890
Decision Date: 19 June 2023

CaseChat Overview and Summary

This matter concerned an application for a Partner (Temporary) (Class UK) visa, Subclass 820 (Partner), made by Mr Muhamad Umar Shehzad Khan. The sponsor was an Australian citizen. The primary dispute revolved around whether the parties were in a genuine and continuing spousal relationship, as required by the Migration Regulations 1994. The decision was made by Moira Brophy, a Member of the Tribunal.

The legal issues before the Tribunal were whether the applicant and sponsor were in a valid spousal relationship at the time of the visa application and at the time of the decision, and whether they met the specific criteria for a Subclass 820 visa. This involved assessing the validity of their marriage and the genuineness and continuing nature of their relationship, having regard to all the circumstances, including financial, household, social aspects, and their commitment to each other.

The Tribunal considered the oral and documentary evidence provided by the applicant and sponsor. While initial concerns were raised regarding the visa's potential role in the relationship, the parties' age difference, and family knowledge, their forthright and consistent oral evidence largely assuaged these concerns. The Tribunal found that the parties were validly married for the purposes of the Act. It then considered the various factors outlined in Regulation 1.15A(3) of the Migration Regulations 1994, which include financial aspects, the nature of the household, social aspects, and the nature of their commitment to each other.

Ultimately, the Tribunal concluded that the applicant met the requirements of cl 820.211(2)(c) and cl 820.221(4) of Schedule 2 to the Regulations. Consequently, the Tribunal remitted the application for reconsideration with a direction that the applicant met these specified criteria.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

At the time of application, the parties stated they met on 27 September 2014 at a picnic lunch with friends in Brighton. They commenced dating and they committed to a shared life to the exclusion of all others on 10 May 2015. They were married on 3 May 2016. CONSIDERATION OF CLAIMS AND EVIDENCETribunal proceedings In making its findings, the Tribunal has considered documents contained in the Department and Tribunal files and oral evidence provided by the applicant and sponsor at the hearing. The parties gave coherent oral evidence about the circumstances in which they met, the development of their relationship and their current living arrangements. While the Tribunal had concerns as to the part a visa played in the relationship, the age difference of the parties, and the knowledge of the respective families as to the relationship, the parties did not resile from answering the questions put to them on these matters. They were forthright and consistent in their answers and the initial concerns of the Tribunal were largely assuaged by their oral evidence.Whether the parties are in a spouse or de facto relationship Clauses 820.211(2)(a) and 820.221 require that at the time the visa application was made, and at the time of this decision, the applicant is the spouse or de facto partner of an Australian citizen or Australian permanent resident or an eligible New Zealand citizen. In the present case the applicant claims to be the spouse of the sponsor who is an Australian citizen. ‘Spouse’ is defined in s 5F of the Act and provides that a person is the spouse of another where the two persons are in a married relationship. Persons in a married relationship must be married to each other under a marriage that is valid for the purposes of the Act, there must be a mutual commitment to a shared life as a married couple to the exclusion of all others, the relationship must be genuine and continuing, and the couple must live together, or not live separately and apart on a permanent basis: s 5F(2)(a)-(d). In forming an opinion about these matters, regard must be had to all of the circumstances of the relationship. This includes evidence of the financial and social aspects of the relationship and the nature of the parties’ household and their commitment to each other as set out in reg 1.15A(3), which is extracted in the attachment to this decision. Each of the specific matters contained in reg 1.15A(3) are effectively questions which must be answered: He v MIBP [2017] FCAFC 206.Are the parties validly married? If the parties are validly married, they may meet the requirements of a spousal relationship, but not a de facto relationship. There is nothing in the information before the Tribunal to cast doubt on the validity of the parties’ marriage on 3 May 2016 and it was not disputed by the delegate. Consequently, in the absence of any evidence to the contrary, the Tribunal finds the parties were married to each other under a marriage that is valid for the purposes of the Act as required by s 5F(2)(a).Are the other requirements for a spouse relationship met?Financial

Decision

Reasons for decision

For the above reasons, and on the evidence before the Tribunal, the applicant meets the requirements of cl 820.211(2)(c) and cl 820.221(4).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(2)(c) of Schedule 2 to the Regulations; and·Cl 820.221(4) of Schedule 2 to the Regulations.Moira BrophyMemberATTACHMENT - 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 sub regulation (2), the Minister may consider any of the circumstances mentioned in subregulation (3).

Ratio Decidendi

Legal Principle Established

For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.Background The applicant, Mr Muhamad Umar Shehzad Khan is a 38-year-old male currently residing in Sydney. He has declared no previous relationships. He arrived in Australia on 17 January 2012 on a Student visa. His father is deceased, and his mother and five brothers reside in Pakistan. The sponsor is a 49-year-old female living in Sydney. She was previously married to Mr Mohammad Hussain in the period from 13 August 2000 to 16 January 2006. She was then married to Nihal Pannu in the period from 27 July 2007 to 2 April 2015. The sponsor sponsored her two previous partners to Australia. She was born in Raratonga, Cook Islands and came to Australia on 13 December 1994. Her mother is deceased and her father and two sisters reside in Australia. At the time of application, the parties stated they met on 27 September 2014 at a picnic lunch with friends in Brighton. They commenced dating and they committed to a shared life to the exclusion of all others on 10 May 2015. They were married on 3 May 2016. CONSIDERATION OF CLAIMS AND EVIDENCETribunal proceedings In making its findings, the Tribunal has considered documents contained in the Department and Tribunal files and oral evidence provided by the applicant and sponsor at the hearing. The parties gave coherent oral evidence about the circumstances in which they met, the development of their relationship and their current living arrangements. While the Tribunal had concerns as to the part a visa played in the relationship, the age difference of the parties, and the knowledge of the respective families as to the relationship, the parties did not resile from answering the questions put to them on these matters. They were forthright and consistent in their answers and the initial concerns of the Tribunal were largely assuaged by their oral evidence.Whether the parties are in a spouse or de facto relationship Clauses 820.211(2)(a) and 820.221 require that at the time the visa application was made, and at the time of this decision, the applicant is the spouse or de facto partner of an Australian citizen or Australian permanent resident or an eligible New Zealand citizen. In the present case the applicant claims to be the spouse of the sponsor who is an Australian citizen. ‘Spouse’ is defined in s 5F of the Act and provides that a person is the spouse of another where the two persons are in a married relationship. Persons in a married relationship must be married to each other under a marriage that is valid for the purposes of the Act, there must be a mutual commitment to a shared life as a married couple to the exclusion of all others, the relationship must be genuine and continuing, and the couple must live together, or not live separately and apart on a permanent basis: s 5F(2)(a)-(d). In forming an opinion about these matters, regard must be had to all of the circumstances of the relationship. This includes evidence of the financial and social aspects of the relationship and the nature of the parties’ household and their commitment to each other as set out in reg 1.15A(3), which is extracted in the attachment to this decision. Each of the specific matters contained in reg 1.15A(3) are effectively questions which must be answered: He v MIBP [2017] FCAFC 206.Are the parties validly married?