Lei (Migration) - [2024] AATA 1166

Lei (Migration) [2024] AATA 1166 (9 May 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ms Ut Lei Lei
REPRESENTATIVE:  Ms Windi Ho (MARN: 0106887)
CASE NUMBER:  2111268
HOME AFFAIRS REFERENCE(S):          BCC2019/6430997
MEMBER:Tegen Downes
DATE:9 May 2024
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)(a) of Schedule 2 to the Regulations
·reg 2.03A

Statement made on 09 May 2024 at 12:26pm
CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – sponsor’s resident return visa cancelled after criminal conviction – set aside on review – genuine and continuing relationship – financial, household and social aspects of relationship and nature of commitment – one child and second pregnancy – compelling corroborating evidence – consent to decision without hearing – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5CB(2), 65, 501
Migration Regulations 1994 (Cth), r 2.03A, Schedule 2, cl 820.211(2)(a), 820.221(1)(a)
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 applicant a Partner (Temporary) (Class UK) visa under section 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 3 December 2019 based on 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 applicant did not satisfy

cl 820.221(2)(a) of Schedule 2 to the Regulations because, after the application was made, the sponsor’s Resident Return Visa was cancelled and accordingly, the applicant was no longer the de facto partner of an Australia permanent resident.
The applicant was represented in relation to the review. The representative filed comprehensive written submissions and supporting documentation, which were of great assistance to the Tribunal.
The applicant did not appear before the Tribunal because she consented to the Tribunal making a decision on the papers. Accordingly, s 360 of the Act does not apply.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
ISSUE AND LAW
This review application relates to an application for a provisional partner visa to enable the applicant to remain in Australia on a temporary basis.
The first issue in this review application is whether, at the time the visa application was made, and at the time of this decision, the applicant is the de facto partner of an Australian permanent…

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 Lei (Migration)

Details

AGLC: Lei (Migration) [2024] AATA 1166
Case: [2024] AATA 1166
Decision Date: 9 May 2024

CaseChat Overview and Summary

This matter concerned an application for a Partner (Temporary) (Class UK) visa, Subclass 820, made by a 33-year-old woman from Macao. The applicant claimed to be in a de facto relationship with the sponsor, a 35-year-old Australian permanent resident. The primary dispute revolved around whether the applicant and sponsor were in a genuine and continuing de facto relationship, as required for the visa. The decision was made by Tegen Downes, a Member of the Tribunal.

The court was required to determine if the applicant and sponsor were in a genuine and continuing de facto relationship, considering the financial aspects, household arrangements, and social nature of their commitment. Additionally, the court needed to assess whether the applicant met the other requirements of cl 820.211 and cl 820.221(1)(a) of Schedule 2 to the Regulations and reg 2.03A, should the primary issue of the de facto relationship be resolved in her favour.

The Tribunal accepted the applicant's claims as true, finding that she and the sponsor were in a genuine and continuing relationship that met the definition of a de facto partnership. This conclusion was based on detailed written statements supported by compelling corroborating evidence, including joint bank accounts, a joint loan for property purchase, and evidence of shared financial responsibilities. The Tribunal found that the financial aspects of the relationship, including joint assets, pooled resources, and shared expenses, were indicative of a de facto relationship at the material times.

Given the findings, the Tribunal remitted the application for the visa to the Minister to consider the remaining criteria for a Subclass 820 visa. The Tribunal directed that the applicant met the criteria specified in cl 820.211(2), cl 820.221(1)(a) of Schedule 2 to the Regulations, and reg 2.03A.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

If the primary issue is resolved in the applicant’s favour, the secondary issues are whether, at the time of the visa application and at the time of this decision, the applicant satisfies the other requirements of cl 820.211 and cl 820.221(1)(a) of Schedule 2 to the Regulations and reg 2.03A.CONSIDERATION OF CLAIMS AND EVIDENCEBackground The applicant is a 33-year-old woman from Macao. She claims to be in a de facto relationship with the sponsor, a 35-year-old Australian permanent resident who was born in China. The sponsor has been separated since 2017, with two children from his marriage. At the time the applicant applied for the visa that is the subject of this review, she held a valid Student Visa. The couple claim to have first met in 2013 and to have become friends. They claim to have commenced a de facto relationship in April 2019, to have welcomed their first child in March 2020 and to be expecting their second child in June 2024. In March 2021, the sponsor’s visa was cancelled under s 501 of the Act after the sponsor was convicted of offences by the District Court of New South Wales and then the New South Wales Court of Appeal. The sponsor was ultimately sentenced to 3 years and 10 months of imprisonment, with a non-parole period of 2 years. In August 2023, the Tribunal (differently constituted) set aside the sponsor’s visa cancellation and the sponsor’s permanent residency was reinstated. Accordingly, the reason for which the delegate refused the applicant’s visa no longer applies. The couple provided detailed written statements to the Tribunal about their relationship, which were supported by compelling corroborating evidence. I accept the couple’s claims as true based on the material before me and am satisfied that they are in a genuine and continuing relationship that meets the definition of a de facto partnership.Are the couple in a de facto relationshipFinancial aspects of the relationship The couple claim to have opened a joint account with the Commonwealth Bank in March 2019, a joint account with ING in February 2024 and to have obtained a loan from ING to purchase a property in February 2024. At the time of application, they claim that the sponsor paid for rent and the applicant paid for bills and living expenses. At the time of decision, they claim that the sponsor pays the home loan and the applicant pays their living expenses. The couple submitted evidence to the Tribunal, including bank statements for both joint accounts which demonstrate that the applicant and the sponsor regularly contribute to the joint accounts and that the Commonwealth Bank account is used for utilities, groceries and other ordinary expenses, a selection of bank statements for the couple’s personal accounts, and a letter from ING providing formal approval of their loan application. This evidence broadly corroborates the couple’s claims and accordingly, I accept them as true. I find that, at the material times, the couple have joint assets, pool their financial resources, and share day-to-day household expenses in a manner consistent with a de facto relationship. I also find that, at the time of decision, the couple have a joint liability, which they did not have at the time of application. The couple do not claim to owe any legal obligations to the other party and I make a finding accordingly. I find that, at the material times, the financial aspects of the relationship are indicative of a de facto relationship, as defined in the Act.Nature of the household

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 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)(a) of Schedule 2 to the Regulations·reg 2.03ATegen DownesMember

Ratio Decidendi

Legal Principle Established

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