Le (Migration)

[2024] AATA 951

Le (Migration) [2024] AATA 951 (12 April 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Thi Ly Le

VISA APPLICANT:  Mr Hong Phuoc Vo

REPRESENTATIVE:  Ms Jennifer Nguyen (MARN: 2117717)

CASE NUMBER:  2018046

HOME AFFAIRS REFERENCE(S):          BCC2020/1586241

MEMBER:M. Edgoose

DATE:12 April 2024

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 309 visa:

·cl 309.211 of Schedule 2 to the Regulations

·cl 309.221 of Schedule 2 to the Regulations

Statement made on 12 April 2024 at 11:24am

CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – genuine and continuing relationship – financial, household and social aspects of relationship and nature of commitment – evidence and significant submissions – decision made without hearing necessary – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5F, 65, 360(2)(a)
Migration Regulations 1994 (Cth), r 1.15A(3), Schedule 2, cl 309.211, 309.221

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 19 November 2020 to refuse to grant the visa applicant a Partner (Provisional) (Class UF) visa under s 65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 20 May 2020 on the basis of his relationship with his 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. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria.

3. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl 309.211 and cl 309.221 due to a lack of supporting evidence.

4. On 16 February 2024, 27 February 2024, 8 April 2024, and 9 April 2024 the Tribunal received significant submissions in relation to this matter. Given the evidence submitted by the review applicant and her representative the Tribunal is satisfied that the parties meet the requirements of reg 1.15A(3). The Tribunal is satisfied that the evidence submitted includes evidence of the financial aspects of the relationship, the nature of the household, the social aspects of the relationship and the nature of the persons’ commitment to each other.

5. The Tribunal is therefore satisfied that the couple meet the requirements of s 5F of the Migration Act.

6. Considering the new evidence received, the Tribunal is satisfied that the criterion is met and has concluded that the matter should be remitted for reconsideration.

7. In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the applicant based on the material before it, pursuant to s 360(2)(a) of the Act.

   DECISION

8. The Tribunal remits the application for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 309 visa:

   ·cl 309.211 of Schedule 2 to the Regulations

   ·cl 309.221 of Schedule 2 to the Regulations

   M. Edgoose
   Member