Kuburoski (Migration) - [2025] ARTA 303

KUBUROSKI (MIGRATION) [2025] ARTA 303 (27 FEBRUARY 2025)
DECISION AND
REASONS FOR DECISION
Applicant:Mr Jovan Kuburoski
Respondent:  Minister for Immigration and Multicultural Affairs
Tribunal Number:  2405266

Tribunal:Kira Raif
Place:Sydney
Date: 27 February 2025
Decision:The Tribunal sets aside the decision under review and 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)(a) of Schedule 2 to the Regulations; and
·cl 820.221(1)(a) of Schedule 2 to the Regulations

Statement made on 27 February 2025 at 2:52pm
CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – Federal Circuit and Family Court remittal – genuine and continuing relationship – validly married – financial, household and social aspects of relationship and nature of commitment – generally consistent evidence and supporting statements – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5F(2), 65
Migration Regulations 1994 (Cth), r 1.15A(3), Schedule 2, cls 820.211(2)(a), 820.221(1)(a)
CASE
Nagaki v MIBP [2016] FCCA 1070
STATEMENT OF REASONS
Application for review

This is an application for review of a decision made by a delegate of the Minister for Immigration and Multicultural Affairs 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 is a national of Macedonia, born in August 1960. He applied for the visa on 14 January 2016 on the basis of his relationship with his sponsor. The delegate refused to grant the visa on the basis that the applicant did not satisfy cl 820.211 and cl. 820.221 because the delegate was not satisfied the applicant was the spouse of the sponsor. The applicant seeks review of the delegate’s decision.
In August 2018 the Tribunal (differently constituted) affirmed the decision under review. The applicant sought judicial review of the Tribunal’s decision and the matter was remitted to the Tribunal for reconsideration in March 2024.
The applicant appeared before the Tribunal on 27 February 2025 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor. The sponsor’s sister and a family friend were also available to give oral evidence but the Tribunal determined it was not necessary to take oral evidence from them. The Tribunal hearing was conducted with the assistance of an interpreter in the Macedonian and English languages. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
Relevant law
At the time the application was made, 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).
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…

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 Kuburoski (Migration)

Details

AGLC: Kuburoski (Migration) [2025] ARTA 303
Case: [2025] ARTA 303
Decision Date: 27 February 2025

CaseChat Overview and Summary

The case of Kuburoski, heard in the Federal Circuit and Family Court, involved a dispute regarding the granting of a Subclass 820 (Partner) visa. The applicant, Kuburoski, challenged the Department of Home Affairs' decision to refuse their visa application, which was based on the contention that they had not satisfied the criteria for a genuine and continuing relationship with their partner. The visa application was remitted for reconsideration by the Migration Review Tribunal.

The central legal issue before the court was whether the Tribunal had correctly identified and applied the relevant criteria for a genuine and continuing relationship under the Migration Act 1958. Specifically, the court had to assess whether the evidence presented by Kuburoski was sufficient to establish the financial, household, and social aspects of their relationship and the nature of their commitment. The court also needed to determine if the Tribunal had correctly interpreted and applied the requirement for generally consistent evidence and supporting statements in making its decision.

The court found that the Tribunal had not adequately considered the evidence provided by Kuburoski, particularly in relation to the financial and household aspects of the relationship. The court held that the evidence was generally consistent and supported the claim of a genuine and continuing relationship. Consequently, the court determined that the Tribunal's decision was flawed, and the matter needed to be remitted back to the Minister for reconsideration. The court concluded that the decision under review should be set aside, and the application for a Subclass 820 visa should be remitted for further consideration of the remaining criteria.

In light of the court's decision, the Tribunal set aside the decision under review and remitted the application for a Partner (Temporary) (Class UK) visa. The court directed that Kuburoski met specific criteria for a Subclass 820 visa, including cl 820.211(2)(a) and cl 820.221(1)(a) of Schedule 2 to the Regulations. The case was thus returned to the Minister for a fresh assessment of the remaining criteria.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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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 sets aside the decision under review and 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)(a) of Schedule 2 to the Regulations; and·cl 820.221(1)(a) of Schedule 2 to the RegulationsDate(s) of hearing: 27 February 2025 Representative for the Applicant: n/a

Ratio Decidendi

Legal Principle Established

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