Koppens (Migration) - [2023] AATA 904

Koppens (Migration) [2023] AATA 904 (12 April 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division
APPLICANT:  Ms Sharon Ann Koppens
REPRESENTATIVE:  Mrs Elizabeth Maddock (MARN: 1570207)
CASE NUMBER:  1925956
HOME AFFAIRS REFERENCE(S):          BCC2018/1510985
MEMBER:Tegen Downes
DATE:12 April 2023
PLACE OF DECISION:  Brisbane
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
·cl 820.221(1)(a) of Schedule 2 to the Regulations

Statement made on 12 April 2023 at 9:52am

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – genuine and continuing relationship – quick timeline of initial relationship and application – extensive current evidence and submissions provided to tribunal – valid marriage and length of relationship – financial, household and social aspects of relationship and nature of commitment – decision made without hearing necessary – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5CB, 5F(2)(a), 65, 360
Migration Regulations 1994 (Cth), rr 1.15A(3), 2.03A, Schedule 2, cl 820.211(2)(a), 820.221

CASES
Ally v MIAC [2008] FCAFC 49
He v MIBP [2017] FCAFC 206
Jayasinghe v MIMA [2006] FCA 1700

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

Formalities

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 section 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 3 April 2018 on the basis of her relationship with her 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 delegate refused to grant the visa on the basis that the visa applicant did not satisfy clause 820.211(2)(a) of Schedule 2 of the Regulations because the delegate considered that the evidence and information provided was not sufficient to demonstrate that the applicant was the spouse or de facto partner of the sponsor, as defined under s 5F and s 5CB of the Act.
The applicant was represented in relation to the review.
The application was initially listed for hearing on 17 January 2023. Before the hearing, the applicant submitted approximately 350 pages of written submissions and written and documentary evidence. The applicant had also submitted additional written and documentary evidence to the Tribunal before the matter was constituted to me.
The initial hearing date was vacated to enable me to consider the submission that ‘due to the overwhelming evidence supplied… this is a case that the Tribunal can decide the review in the applicant's favour on the basis of this submission and supporting documents… without hearing’.
I considered the submissions and evidence that was submitted but I was not satisfied that I could decide the matter in the…

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 Koppens (Migration)

Details

AGLC: Koppens (Migration) [2023] AATA 904
Case: [2023] AATA 904
Decision Date: 12 April 2023

CaseChat Overview and Summary

The applicant, Mr. Koppens, sought judicial review of a decision by the Administrative Appeals Tribunal (AAT) to affirm the refusal of his Partner (Temporary) (Class UK) visa, subclass 820. The AAT had affirmed the delegate's decision that Mr. Koppens had not satisfied the criteria for a genuine and continuing relationship with his partner, as required for the visa.

The primary legal issue before the Federal Circuit and Family Court of Australia was whether the AAT had erred in law by failing to afford Mr. Koppens procedural fairness. Specifically, the court considered whether the AAT had made its decision without adequately considering the extensive evidence and submissions provided by Mr. Koppens, particularly in light of the relatively short initial timeline of his relationship and visa application.

Justice Downes found that the AAT had failed to provide procedural fairness. While acknowledging the initial quick timeline of the relationship and application, the court noted the substantial evidence of a valid marriage, the length of the relationship, and the financial, household, and social aspects of their commitment that were presented to the Tribunal. The court concluded that the AAT's decision was made without a proper and thorough consideration of all the material before it, which was necessary to determine the genuine and continuing nature of the relationship.

Consequently, the court remitted the matter to the Administrative Appeals Tribunal for reconsideration according to law.

Orders