Lee (Migration) - [2023] AATA 4628

Lee (Migration) [2023] AATA 4628 (20 November 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ms Hyoungrae Lee
REPRESENTATIVE:  Mr Kris Ahn
CASE NUMBER:  2211261
HOME AFFAIRS REFERENCE(S):          BCC2017/1991850
MEMBER:Edward Howard
DATE:20 November 2023
PLACE OF DECISION:  Brisbane
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) visa:
·cl 820.211(2) of Schedule 2 to the Regulations
·cl 820.221(1) of Schedule 2 to the Regulations

Statement made on 20 November 2023 at 2:36pm

CATCHWORDS
MIGRATION –Partner (Temporary) (Class UK) visa – Subclass 820– parties have lived at the same residence throughout their relationship – validly married – genuine and continuing relationship – parties see their relationship as a long-term commitment – had and have a mutual commitment to a shared life as de facto partners to the exclusion of all others –parties have pooled their financial resources and shared day-to-day financial responsibilities during the relationship – parties have lived at the same residential – social aspects of the relationship are consistent with a married relationship – couple had a mutual commitment to a shared life to the exclusion of all others – decision under review remitted
LEGISLATION
Migration Act 1958, ss, 5F, 65
Migration Regulations 1994, Schedule 2, cls 820.211, 820.221
CASES
Ally v MIAC [2008] FCAFC 49
He v MIBP [2017] FCAFC 206
Jayasinghe v MIMA [2006] FCA 1700
MIEA v Poche (1980) 4 ALD 139
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 to refuse to grant the review applicant a Partner (Temporary) (Class UK) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The review applicant applied for the visa on 5 June 2017 on the basis of her relationship with her sponsor. At that time, 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).
The delegate refused to grant the visa on the basis that the review applicant did not satisfy cl 820.211.
The review applicant appeared before the Tribunal on 15 November 2023 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor, Mr Stanley Yip. The Tribunal hearing was conducted with the assistance of an interpreter in the Korean and English languages.
The applicant was represented in relation to the review.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
BACKGROUND
The review applicant is Ms Hyoungrae Lee, aged 42 years, a citizen of South Korea and the sponsor is Mr Stanley Yip, aged 57 years, an Australian citizen. The parties claimed to have known each other since 2009 and married on 2 September 2011.
ISSUES AND LAW
There is a two-stage process…

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 Lee (Migration)

Details

AGLC: Lee (Migration) [2023] AATA 4628
Case: [2023] AATA 4628
Decision Date: 20 November 2023

CaseChat Overview and Summary

This matter concerned an application by Ms Hyoungrae Lee for a Partner (Temporary) (Class UK) visa, subclass 820. The sponsor was Mr Stanley Yip, an Australian citizen. The core dispute revolved around whether Ms Lee was the spouse of Mr Yip at the time of the visa application and at the time of the Tribunal's decision, as required by clauses 820.211(2)(a) and 820.221 of Schedule 2 to the Migration Regulations 1994. The Tribunal was considering the first, temporary stage of the onshore Partner visa process.

The legal issues before the Tribunal were whether Ms Lee and Mr Yip were in a married relationship, as defined by section 5F of the Migration Act 1958. This definition requires that the parties be validly married, have a mutual commitment to a shared life as a married couple to the exclusion of all others, that the relationship be genuine and continuing, and that they live together or not separately and apart on a permanent basis. The Tribunal was also required to consider all relevant evidence, including events occurring after the visa application date, if such evidence logically tended to establish the existence or non-existence of the relationship at the relevant time.

The Tribunal reasoned that in assessing a spouse or de facto partner relationship for visa purposes, regard must be had to all circumstances, including the financial and social aspects of the relationship, the nature of the household, and the commitment to each other, as outlined in regulation 1.15A(3). The Tribunal noted that the applicant had provided limited documentary evidence to the Department of Home Affairs but furnished further evidence to the Tribunal that was not available to the primary decision maker. The Tribunal concluded that the application should be remitted for reconsideration, with a direction that the review applicant met the criteria for a subclass 820 visa.

Orders

Orders of the court

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Background

Background to the litigation

For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.BACKGROUND The review applicant is Ms Hyoungrae Lee, aged 42 years, a citizen of South Korea and the sponsor is Mr Stanley Yip, aged 57 years, an Australian citizen. The parties claimed to have known each other since 2009 and married on 2 September 2011. ISSUES AND LAW There is a two-stage process for onshore Partner visas. A visa applicant must first hold a provisional visa, enabling them to remain in Australia on a temporary basis, prior to the grant of a permanent visa. The grant of a permanent visa would generally depend on whether the relationship has continued for a period of at least two years. In this matter, the Tribunal is considering the first, temporary stage. Where the Tribunal is considering a criterion that requires the definition of spouse or de facto partner to be met at the time of the visa application, the information supplied in relation to the reg 1.15A(3) matters may relate to circumstances after the time of application. In forming a view of the relationship at the time of application, the Tribunal must consider all relevant evidence, which may include evidence of events after the date of application insofar as it assists in the task of determining whether the visa applicant and the sponsor were in a spousal relationship at the time of the application. Evidence of events after the visa application is relevant if it tends logically to show the existence or non-existence of facts relevant to the issue to be determined.[1] The Tribunal observes this to be a matter where the visa applicant submitted limited documentary evidence in support of his visa application to the Department of Home Affairs and then furnished the Tribunal with further evidence that was unavailable to the primary decision maker.[1] Ally v MIAC [2008] FCAFC 49 at [32]–[35]; Jayasinghe v MIMA [2006] FCA 1700 at [35], citing MIEA v Poche (1980) 4 ALD 139 at [24] per Deane J which held that evidence of subsequent events may be taken into account if it ‘tends to logically show the existence or non-existence of’ the relationship at that particular time; and see also Bretag v IRT [1991] FCA 582 at [13]–[15]. The issue in the present case is whether at the time of the visa application and the time of this decision, the review applicant is the spouse of the sponsor.Whether the parties are in a spouse or de facto relationship 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 review applicant is the spouse or de facto partner of an Australian citizen or Australian permanent resident or an eligible New Zealand citizen. In the present case the review applicant claims to be the spouse of the sponsor who is an Australian citizen. Spouse’ is defined in s 5F of the Act and provides that a person is the spouse of another where the two persons are in a married relationship. Persons in a married relationship must be married to each other under a marriage that is valid for the purposes of the Act, there must be a mutual commitment to a shared life as a married couple to the exclusion of all others, the relationship must be genuine and continuing, and the couple must live together, or not live separately and apart on a permanent basis: s 5F(2)(a)-(d). In forming an opinion about these matters, regard must be had to all of the circumstances of the relationship. This includes evidence of the financial and social aspects and the nature of the parties’ household and their commitment to each other as set out in reg 1.15A(3), which is extracted in the attachment to this decision. Each of the specific matters contained in reg 1.15A(3) are effectively questions which must be answered: He v MIBP [2017] FCAFC 206.Are the parties validly married?

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 remits the application for a partner (temporary) (class UK) visa, with the direction that the review applicant meets the following criteria for a subclass 820 brackets partner) visa:·cl 820.211(2) of Schedule 2 to the Regulations·cl 820.221(1) of Schedule 2 to the RegulationsEdward HowardMemberATTACHMENT - Extract from Migration Regulations 19941.15A Spouse(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

The Tribunal remits the application for a partner (temporary) (class UK) visa, with the direction that the review applicant meets the following criteria for a subclass 820 brackets partner) visa:·cl 820.211(2) of Schedule 2 to the Regulations·cl 820.221(1) of Schedule 2 to the RegulationsEdward HowardMemberATTACHMENT - Extract from Migration Regulations 19941.15A Spouse(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).