Lai (Migration)

[2019] AATA 5651

Lai (Migration) [2019] AATA 5651 (19 December 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Yi-Ting Lai

CASE NUMBER:  1836803

DIBP REFERENCE(S):  BCC2017/4229951

MEMBER:Nicholas McGowan

DATE:19 December 2019

PLACE OF DECISION:  Melbourne

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 (Temporary)) visa:

·  cl.820.211(2) of Schedule 2 to the Regulations;

·  r.2.03A

Statement made 6:48am 19 December 2019

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner (Temporary)) –de facto relationship of at least 12 months – registered relationship under Victorian state law – decision under review remitted

LEGISLATION

Migration Act 1959 (Cth), s 65

Migration Regulations 1994 (Cth), r 2.03A, Schedule 2, cl 820.211(2)

REVIEW

1. On 12 November 2017 the applicant applied for a Partner (Temporary) (Class UK) visa
under s.65 of the Migration Act 1958 (the Act).

2. On 28 November 2018 a delegate for the immigration minister refused to grant the visa.

3. The delegate refused to grant the applicant the temporary partner visa because the applicant failed to satisfy the requirement (at Regulation 2.03A).

4. Regulation 2.03A requires the applicant and her sponsor to have been in a de facto
relationship 12 months prior to their visa lodgement. That is, 12 months prior to 12
November 2017.

5. The delegate went on to considered the alternative to the criterion, and determined that none of the circumstances necessary to meet the alternatives to 2.03A(3), those contained in 2.03A(4) or 2.03A(5), were applicable in the applicant’s application.

6. The applicant appealed the Minister’s refusal decision to this independent tribunal for a
merits review on 14 December 2018.

EVIDENCE AND FINDINGS

7. In this case the applicant has provided this tribunal with a relationship certificate (dated 15 April 2019) at folio 32 of this tribunal’s file number 1836803.

8. In light of the new evidence, this tribunal is satisfied that the requirements of Regulation
(2.03A) have now been met because the provision of the ‘relationship certificate’ means the
stipulations under 2.03A no longer prevent the applicant from meeting the criteria for the
grant of the visa, because it gives rise to Regulation 2.03A(5) - given the applicant’s
circumstances are now such that the parties’ de facto relationship has been recognised
under an Australian State law as prescribed in the Acts Interpretation (Registered
Relationship) Regulations 2008.

9. As this tribunal has found the applicant now satisfies Regulation 2.03A (5) for the purposes of Regulation 2.03A(3); and, the parties were both over 18 years of age at the time of application on 12 November 2017; the applicant has satisfied this tribunal she now meets
the requirements specified in Regulation 2.03A for the purposes of clause 820.211(2).

10. Further, this tribunal is satisfied, having considered the circumstances as set out under the Act and Regulations, that the applicant was at the time of the temporary partner visa
application, the de facto partner of her sponsor who is an Australian born citizen (as
evidenced by the details in his birth certificate contained at folio 148 of the department’s file).

11. It follows that this tribunal is satisfied that at the time of application the applicant met the
requirements of clause 820.221(2) for the purposes of her partner visa application.

13. The additional documentary evidence the applicant has provided this tribunal (which are in addition to those documents given to the Department of Immigration previously) will be provided to the department as it no considers the visa application further.

16. Given the above, the applicant satisfies cl.820.211 at the time of application. It is therefore appropriate to remit the application for the visa to the Minister to consider the remaining criteria for a subclass 820 visa.