Kuang (Migration) - [2024] AATA 3840

Kuang (Migration) [2024] AATA 3840 (2 October 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ms Hongxia Kuang
REPRESENTATIVE:  Mr Alan Dino Duri (MARN: 1684393)
CASE NUMBER:  2320278
DIBP REFERENCE(S):  BCC2023/2671284
MEMBER:Margie Bourke
DATE:2 October 2024
PLACE OF DECISION:  Melbourne
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 and cl.309.221 of Schedule 2 to the Regulations.

Statement made on 02 October 2024 at 12:21pm
CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – genuine and continuing spousal relationship – financial, household and social aspects of relationship and nature of commitment – validly married – detailed and credible evidence – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5F(2), 65
Migration Regulations 1994 (Cth), r 1.15A(3), Schedule 2, cl 309.211(2), 309.221
CASES
Bretag v MILGEA [1991] FCA 755
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 23 November 2023 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 4 May 2023 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, in this case the visa applicant.
The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.309.211 because the delegate was not satisfied the evidence and information provided by the applicant was sufficient to demonstrate she was the spouse of the sponsoring partner as defined by s.5F of the Act.
Prior to the hearing, the Tribunal wrote to the applicant to advise that the same member had been constituted this review who had presided over a previous review, in which the applicant was the review applicant. The Tribunal had affirmed the decision of the Department in that decision by the Tribunal. The review applicant confirmed that she had no concerns about the same member conducting both reviews, and consented to the same member presiding over this review.
The applicant appeared before the Tribunal on 18 September 2024 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor, who also attended the hearing. The hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. The interpreter attended the hearing, but as the hearing went over time, the interpreter had to leave, and a second interpreter was engaged by the Tribunal who…

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.

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Details

AGLC: Kuang (Migration) [2024] AATA 3840
Case: [2024] AATA 3840
Decision Date: 2 October 2024

CaseChat Overview and Summary

This matter concerned an application for a Partner (Provisional) (Class UF) visa, subclass 309. The applicant sought review of a decision that had found insufficient evidence to demonstrate a genuine and continuing spousal relationship. The Tribunal was required to determine whether the applicant and the sponsor were in a genuine and continuing spousal relationship, considering the financial, household, and social aspects, as well as the nature of their commitment to each other.

The Tribunal considered the evidence provided, including a registered marriage certificate confirming the parties were validly married. While the Department had initially found insufficient evidence, the Tribunal noted that the applicant and sponsor provided detailed and credible oral evidence at the hearing, which disclosed a breadth of knowledge and understanding indicative of a genuine spousal relationship. The Tribunal also noted that the applicant had been invited to provide further evidence, including statements from family and friends, and detailed information regarding the financial, household, and social aspects of their relationship, as well as their commitment and long-term plans.

The Tribunal found that the oral evidence given by the applicant and sponsor at the hearing was detailed and credible, and demonstrated a genuine spousal relationship. Despite the initial assessment of insufficient evidence, the Tribunal concluded that the applicant met the criteria for a genuine spousal relationship. Consequently, the Tribunal remitted the application for the visa to the Minister for reconsideration, with a direction that the applicant meets the criteria specified in cl.309.211 and cl.309.221 of Schedule 2 to the Migration Regulations 1994.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. Based on the registered Victorian marriage certificate, the Tribunal is satisfied that the applicant and the sponsor were married at East Melbourne on 4 December 2022, and the marriage was registered on 5 January 2023. On the evidence, 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).Information and evidence provided to the Tribunal The Tribunal has considered the information and evidence provided to the Department, and the assessment in the Department’s decision record dated 23 November 2023, that there was insufficient evidence provided with the application for the visa to demonstrate the applicant was the spouse of the sponsoring partner. The Tribunal accepts this assessment at the time of the Department’s decision record as a correct assessment of the evidence and information provided to the Department. In a letter dated 12 August 2024, the Tribunal invited the applicant to provide further information prior to the hearing. The Tribunal specified that it invited the applicant to provide evidence including signed statements from members of the applicant’s and the sponsor’s family, and from friends and members of the community. The Tribunal specified that it invited the applicant and the sponsor to provide a recent detailed statement about the current circumstances of their relationship. The Tribunal advised that further evidence should include documents and information about the financial aspects of their relationship, about where the applicant and the sponsor reside, about their household including the living arrangements and responsibilities, about the social aspects of their relationship and about the commitment they have to each other and the support they give to each other and their long-term plans. Prior to the hearing the applicant provided submissions to the Tribunal which included a statement from the applicant about the relationship, a substantial number of photographs and a four-page joint bank statement dated 14 August 2024 which did not record regular household expenses. At the hearing the applicant and sponsor were the only persons who attended to give evidence. The evidence given by the applicant and the sponsor at the hearing was detailed and credible, and disclosed a breadth of knowledge and understanding that indicated the relationship between the applicant and the sponsor was a genuine spousal relationship. The Tribunal discussed with the applicant and the sponsor that the information and evidence provided in support of the application was insufficient. The applicant and the sponsor had referred, in their oral evidence, to the existence of documents, and the time they had spent as a married couple with family and friends, including travelling to China to meet their respective families. The Tribunal advised it would provide the applicant a further opportunity to provide information and evidence to support the application for review.

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 for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 309 (Partner (Provisional)) visa:·cl.309.211 and cl.309.221 of Schedule 2 to the Regulations.Margie BourkeSenior MemberATTACHMENT - 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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