Lamichhane (Migration) - [2021] AATA 390

Lamichhane (Migration) [2021] AATA 390 (19 January 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mrs Pramila Lamichhane
CASE NUMBER:  1934709
HOME AFFAIRS REFERENCE(S):          BCC2015/3049046
MEMBER:Kira Raif
DATE:19 January 2021
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.

Statement made on 19 January 2021 at 10:29am
CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – Federal Circuit Court remittal – holding a substantive visa at the time of application – compelling reasons to waive Schedule 3 criteria – previous genuine relationship with the sponsor – relationship ceased – financial hardship – parents’ whereabouts unknown – mixed religious marriage – divorce – decision under review affirmed
LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 820.211, 820.221; Schedule 3
CASES
Babicci v MIMIA (2005) 141 FCR 285
Chan v MIBP [2017] FCCA 2883
Elhendy v Minister for Immigration [2018] FFCA 1140
MZYPZ v MIAC [2012] FCA 478
Nazir v MIBP [2018] FCCA 861
Waensila v MIBP [2016] FCAFC 32
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 Immigration and Border Protection to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s.65 of the Migration Act 1958 (the Act).
The applicant is a national of Nepal, born in April 1989. She applied for the visa on 16 October 2015 on the basis of her relationship with her sponsor. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.820.211 because the delegate found that the applicant did not meet Item 3001 and found there were no reasons to waive that requirement. The applicant sought review of the delegate’s decision.
On 23 February 2017 the Tribunal (differently constituted) affirmed the decision under review. The applicant sought judicial review and in November 2019 the Court remitted the matter for reconsideration.
The applicant appeared before the Tribunal on 11 January 2021 to give evidence and present arguments. The applicant was represented in relation to the review by her registered migration agent. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
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 (the Regulations).
An applicant who is not the holder of a substantive visa at the time of application must meet certain criteria in Schedule 3 to the Regulations. With limited exceptions not relevant to this case, he or she must satisfy Schedule 3 criteria 3001, 3003, and 3004 unless the Minister is satisfied that there are compelling reasons for not applying those criteria: cl.820.211(2)(d). In order to satisfy criterion 3001, the application for the visa must have…

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: Lamichhane (Migration) [2021] AATA 390
Case: [2021] AATA 390
Decision Date: 19 January 2021

CaseChat Overview and Summary

The Administrative Appeals Tribunal (AAT) considered an application for a Partner (Temporary) (Class UK) visa, subclass 820. The applicant sought review of the delegate's decision to refuse the visa. The core of the dispute concerned whether the applicant met the requirements of Schedule 3 of the Migration Regulations 1994, which typically mandates holding a substantive visa at the time of application and satisfying certain criteria unless compelling reasons exist for a waiver.

The Tribunal was required to determine whether there were compelling reasons to waive the Schedule 3 criteria, specifically in light of the applicant's circumstances. This involved assessing the applicant's previous genuine relationship with the sponsor, the cessation of that relationship, and the applicant's claims of financial hardship, unknown whereabouts of parents, and the complexities of a mixed religious marriage leading to divorce.

The Tribunal affirmed the delegate's decision, finding that the applicant did not satisfy the criteria for the grant of the visa. While acknowledging the applicant's stated reasons for not holding a substantive visa at the time of application and the circumstances surrounding the breakdown of the relationship, the Tribunal concluded that these did not constitute compelling reasons to waive the Schedule 3 requirements. The decision to affirm the refusal of the visa was therefore made.

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

For the reasons above, the applicant does not satisfy the criteria for the grant of the visa.DECISION The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.Kira RaifSenior Member

Ratio Decidendi

Legal Principle Established

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