Koech (Migration) - [2020] AATA 5594

Koech (Migration) [2020] AATA 5594 (18 November 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Edison Kiplagat Koech
CASE NUMBER:  1903697
HOME AFFAIRS REFERENCE(S):          BCC2017/4308308
MEMBER:Joseph Francis
DATE:18 November 2020
PLACE OF DECISION:  Perth
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) of Schedule 2 to the Regulations at the time of application;
and;
·cl.820.221(3)(b) of Schedule 2 to the Regulations at the time of this decision.

Statement made on 18 November 2020 at 12:52pm

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – genuine and continuing spouse relationship – relationship ceased – sponsorship withdrawn – compelling or compassionate reasons – child of the relationship – declared partners in Tax Returns – shared household and parenting responsibilities – seeking access to their child – social recognition of the relationship – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5, 65
Migration Regulations 1994, Schedule 2, cls 820.211, 820.221; r 1.09, 2.03
CASES
Guven v MIMA [2006] FMCA 311
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 to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s.65 of the Migration Act 1958 (the Act).
The applicant applied for the visa on 16 November 2017 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 (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.820.211(2) because the delegate was not satisfied the parties provided each other with companionship and emotional support, or that they had a joint commitment to a shared life from the time of application.
The applicant appeared before the Tribunal on 14 August 2020 to give evidence and present arguments.
The applicant was represented in relation to the review by his registered migration agent, Mr Clive Greeves. The representative attended the Tribunal hearing.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
The issue in the present case is whether the visa applicant and sponsor were in a genuine de facto relationship as required by section 5CB at the time of application.
Further, as the sponsorship was withdrawn, the Tribunal considered whether compelling or compassionate reasons were sufficient for a waiver of time of decision criteria as required by regulation r.2.03A(3).
Whether the parties are in a spouse…

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 Koech (Migration)

Details

AGLC: Koech (Migration) [2020] AATA 5594
Case: [2020] AATA 5594
Decision Date

CaseChat Overview and Summary

This matter concerned an application for a Partner (Temporary) (Class UK) visa by the applicant, Koech. The dispute arose from the assessment of whether the applicant was in a de facto relationship with the sponsor at the time of the visa application, a key criterion for the visa. The decision was made by a Tribunal, which considered evidence that had not been presented to the original delegate.

The legal issues before the Tribunal were whether the applicant met the criteria for a Subclass 820 (Partner) visa, specifically concerning the existence of a de facto relationship. This required the Tribunal to consider all circumstances of the relationship, including the financial and social aspects, the nature of the household, and the commitment to each other, as stipulated by regulation 1.09A(3) of the Migration Regulations 1994. The Tribunal also had to determine the weight to be given to various pieces of documentary evidence submitted by the applicant, and to assess information contained in a section 376 certificate.

The Tribunal reasoned that, in assessing a de facto relationship, it must consider all the circumstances as outlined in regulation 1.09A(3). It noted that the delegate had not considered all the evidence now before the Tribunal. The Tribunal also found that information within a section 376 certificate, which suggested false statements had been made, related to a previous visa application by the sponsor and not the current applicant, and therefore placed no weight on it. Having considered the evidence and the relevant regulations, the Tribunal determined that the application should be remitted.

The Tribunal remitted the application for a Partner (Temporary) (Class UK) visa with a direction that the applicant meets the criteria for a Subclass 820 (Partner) visa, specifically clauses 820.211(2) and 820.221(3)(b) of Schedule 2 to the Regulations, at the relevant times.

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

In forming an opinion whether they were in a de facto relationship at the time of the visa application, consideration must be given to all of the circumstances of the relationship. This includes evidence of the financial and social aspects and the nature of the parties’ household and their commitment to each other as set out in r.1.09A(3) which is attached to this decision. Each of the specific matters contained in r.1.09A(3) are effectively questions which must be answered: He v MIBP [2017] FCAFC 206. Consideration of evidence The Tribunal was in receipt of documentary evidence that was not submitted for consideration prior to the delegate’s decision. The following evidence was provided to the Tribunal:· Westpac bank statements in the name of the visa applicant, addressed to the shared address with the sponsor,· Anglicare Family Dispute Resolution correspondence dated 27 February 2020,· Child support statements paid by the visa applicant,· Social media photographs and post by the visa sponsor as evidence that the parties were engaged to be married, and that the visa applicant and sponsor were in a genuine de facto relationship,· Photographs showing the visa applicant at the birth of the parties’ child, and in various settings with his family and the parties’ mutual child,· Statement from Jude Kipkosgei in support of the relationship, signed and dated 18 March 2020,· Statement of attendance from Anglicare Family Relationship Centre dated 18 June 2020,· Certificate by family dispute resolution practitioner dated 6 July 2020,· Family Court of Australia case information affidavit for visa applicant seeking access to his child,· Statement by Damaris Kipkoech, sibling of the visa applicant, in support of the relationship,· Statement by Perisi Cherutich, mother of the visa applicant, in support of the relationship,· Form 888 statement by John Piya in support of the relationship,· 2016-17 Australian tax return for visa applicant indicating the former sponsor was his spouse for the entire financial year,· 2017-18 Australian tax return for visa applicant indicating the former sponsor was his spouse for the entire financial year; and,· Form 888 from Margaret Munroe, former landlord of the visa applicant, in support of the relationship. The Tribunal notes that the department file contained section 376 certificate relating to confidential information provided to the department. The information suggested that false statements had been submitted in support of the visa application. In consideration of the date and information that was included under the s376 certificate, The Tribunal is satisfied that the allegation was in fact in relation to the visa application of the sponsor with her previous relationship and was not related the current visa application or applicant. The Tribunal therefore placed no weight on the information. The Tribunal considered each matter in r.1.09A(3)(a), (b), (c) and (d), and any other circumstances of the relationship under r.1.09A(2).

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 820 visa.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) of Schedule 2 to the Regulations at the time of application;and,·cl.820.221(3)(b) of Schedule 2 to the Regulations at the time of this decision.Joseph FrancisMemberATTACHMENT - Extract from Migration Regulations 19941.09A De facto partner and de facto relationship(1)For subsection 5CB (3) of the Act, this regulation sets out arrangements for the purpose of determining whether 1 or more of the conditions in paragraphs 5CB (2) (a), (b), (c) and (d) of the Act exist.Note 1 See regulation 2.03A for the prescribed criteria applicable to de facto partners.Note 2 The effect of subsection 5CB (1) of the Act is that a person is the de facto partner of another person (whether of the same sex or a different sex) if the person is in a de facto relationship with the other person. Subsection 5CB (2) sets out conditions about whether a de facto relationship exists, and subsection 5CB (3) permits the regulations to make arrangements in relation to the determination of whether 1 or more of those conditions 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 in a de facto relationship with 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

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) of Schedule 2 to the Regulations at the time of application;and,·cl.820.221(3)(b) of Schedule 2 to the Regulations at the time of this decision.Joseph FrancisMemberATTACHMENT - Extract from Migration Regulations 19941.09A De facto partner and de facto relationship(1)For subsection 5CB (3) of the Act, this regulation sets out arrangements for the purpose of determining whether 1 or more of the conditions in paragraphs 5CB (2) (a), (b), (c) and (d) of the Act exist.Note 1 See regulation 2.03A for the prescribed criteria applicable to de facto partners.Note 2 The effect of subsection 5CB (1) of the Act is that a person is the de facto partner of another person (whether of the same sex or a different sex) if the person is in a de facto relationship with the other person. Subsection 5CB (2) sets out conditions about whether a de facto relationship exists, and subsection 5CB (3) permits the regulations to make arrangements in relation to the determination of whether 1 or more of those conditions 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 in a de facto relationship with 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).