LIM (Migration) - [2021] AATA 5608

LIM (Migration) [2021] AATA 5608 (24 August 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Ho Gan LIM
CASE NUMBER:  2016570
HOME AFFAIRS REFERENCE(S): BCC2016/2387600 BCC2019/6643710
MEMBER:P. Wood
DATE:24 August 2021
PLACE OF DECISION:  Melbourne, Victoria
DECISION:The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.
Statement made on 24 August 2021 at 12:43pm

CATCHWORDS
MIGRATION –Partner (Temporary) (Class UK) visa – Subclass 820 – Tribunal is not convinced that the applicant isn’t in fact in a relationship with Ms Lu – not satisfied the relationship between the parties was genuine and continuing – applicant was not the holder of a substantive visa at the time of application – mental health condition – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5F, 65, 359, 376
Migration Regulations 1994, Schedule 2, cls 820.211, 820.221, Schedule 3
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 s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 15 July 2016 on the basis of his relationship with his 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 primary criteria must be satisfied by at least one applicant.
The application was refused by a delegate on 20 November 2019. The delegate refused to grant the visa because they were not satisfied that the applicant met cl 820.211(d)(ii), requiring the applicant to satisfy schedule 3 criteria. The applicant applied to the Tribunal for review of this decision and on 13 March 2020 the Tribunal, differently constituted, set aside the decision of the delegate and remitted the application to the Department of Home Affairs on the basis that the applicant met cl 820.221(2)(d)(ii).
On 12 November 2020 a delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl 820.211 because they were not satisfied that the parties were in a genuine spousal relationship.
The applicant was represented in relation to the review by his registered migration agent.
The applicant was invited to appear before the Tribunal on 12 March 2021 to give evidence and present arguments. At the onset of the hearing, the applicant’s migration agent indicated that they would like the hearing to be adjourned so that they could respond to certificates issued under s 376 of the Act. The hearing was adjourned.
On 19 March 2021 the Tribunal wrote to the applicant’s migration agent to formally advise of certificates issued under s 376 of the Act and, pursuant to s 359A, to invite the applicant to comment or respond to adverse information on the Department file.…

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 LIM (Migration)

Details

AGLC: LIM (Migration) [2021] AATA 5608
Case: [2021] AATA 5608
Decision Date: 24 August 2021

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered an application for a Partner (Temporary) (Class UK) visa (subclass 820) made by a Malaysian citizen. The applicant had a history of unlawful presence in Australia and previous visa cancellations. The sponsor was an Australian citizen who had previously been married. The core of the dispute was whether the applicant and the sponsor were in a genuine and continuing spousal or de facto relationship, as required for the visa.

The Tribunal was required to determine if the applicant and the sponsor were in a genuine and continuing spousal or de facto relationship. This involved assessing the evidence presented by both parties, including documentary evidence such as marriage certificates, lease agreements, insurance policies, bank statements, and various statutory declarations and personal statements. The Tribunal also considered evidence relating to the sponsor's mental health and the applicant's circumstances, including his detention.

The Tribunal concluded that it was not convinced that the applicant and the sponsor were in a genuine and continuing relationship. Despite the presentation of various documents and statements intended to demonstrate the genuineness of their relationship, the Tribunal found the evidence insufficient to satisfy the legislative criteria for the visa. The Tribunal affirmed the delegate's decision not to grant the visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the reasons which follow, the Tribunal has concluded that the decision under review should be affirmed.Consideration of claims and evidence The issue in the present case is whether the applicant and the sponsor are in a genuine spousal relationship. The applicant in this case is a 46-year-old citizen of Malaysia. He first arrived in Australia on 25 November 2007. The applicant remained in Australia unlawfully from 26 February 2008 to 19 August 2011. The applicant was removed from Australia on 19 August 2011. The applicant changed his name and returned to Australia under his new name on 26 December 2011. The applicant was granted a student visa in April 2012 which was cancelled in May 2014. On 14 April 2014 the applicant applied for a Protection visa. This was refused by a delegate and later affirmed by the Tribunal. The applicant applied for a Partner visa on 15 July 2016. On 9 December 2019 the applicant’s Bridging Visa E was cancelled and the Tribunal also affirmed this decision. On 19 December 2019 the applicant was detained. He has remained in immigration detention since that time. The sponsor was born in Thailand in May 1959. She is a 61-year-old Australian citizen. She was previously married and divorced her ex-husband in August 2014. The applicant and the sponsor claimed to have met on 10 October 2014 at a residence in Brunswick West at the party of a mutual friend. The parties claim they exchanged telephone numbers before leaving the party and began a relationship as friends which then developed further. The parties claim they officially became a de facto couple on 7 November 2015. The parties married on 23 June 2016. The Tribunal has had regard to relevant evidence on the Department file, including:·Statement signed by the applicant and the sponsor requesting a waiver to schedule 3 criteria.·Photographs of the applicant and sponsor together and at social events with others. ·Certificate of Marriage dated 23 June 2016.·Email from Bupa dated 30 July 2019 relating to health insurance cover for the applicant and the sponsor.·Continuing Lease Agreement at Mildura residence, dated 1 March 2019, listing the sponsor and the applicant as tenants. ·Residential tenancy agreement at Mildura residence, listing the applicant and sponsor as tenants, dated 27 February 2017 to 26 February 2018.·Bond lodgement form for the above tenancy.·Condition Report relating to Mildura residence dated 5 March 2017.·Psychological assessment, spousal Application/Compassionate and Compelling Circumstances on behalf of the sponsor and the applicant, dated 14 January 2017.·Home and Contents Insurance policy for the applicant and the sponsor relating to the sponsor’s Brunswick residence for the period 12 April 2019 to 12 April 2020.·Certificate of vaccination from Mildura Veterinary Hospital listing the applicant and sponsor as owners dated 3 July 2019.·Reference letter from property manager of the Mildura residence, stating they have known the applicant and sponsor for three years.·Reference letter from landlord of Mildura residence, stating that the applicant and sponsor have been tenants at the property for 3 years.·Reminder notice for electricity account dated 21 June 2019 addressed to the sponsor at the Mildura residence.·Invoice and accompanying receipt from Mildura Veterinary hospital dated 3 July 2019.·Submissions of the applicant’s then-migration agents dated 29 May 2017,3 August 2019 and 7 August 2020.·Unsigned statement of the applicant responding to departmental adverse information. ·AEC enrolment to vote letter to the applicant at the Brunswick address dated 11 November 2016.·Westpac joint bank account letter dated 6 July 2016 and statement from 6 July 2016 to 6 December 2016.·ASIC Current and Historical Company Extract for NATIONAL A CONTRACTING Pty LTD. ·VicRoads Certificate of Registration expiring 9 November 2017, addressed to the applicant at the sponsor’s Brunswick address.·VicRoads Driver Licence Receipt dated 5 July 2016 addressed to the applicant at the sponsor’s Brunswick address. ·Certificate of title extracted on 28 March 2008 listing the sponsor as sole proprietor of her Brunswick residence.·Applicant’s Westpac bank statement from 6 July 2016 to 6 December 2016.·Boarding pass in the parties’ names for flights from Melbourne to Mildura, departing 16 July 2016. ·2 Form 888 supporting statutory declarations by the sponsor’s friends, each dated 6 July 2016 attesting the genuine relationship of the parties.·Personal statement by the visa applicant, certified by the sponsor dated 17 July 2016 relating to the development of the relationship. ·Family Court Divorce order dated 22 July 2014 relating to the sponsor’s previous marriage.·Page from a Contract of sale for a plot of land in Box Hill identifying the sponsor as the purchaser.·Letter from the sponsor dated 20 February 2020 regarding providing financial support to the applicant. ·Records of video chat, instant messaging and photos sent between the sponsor and the applicant ·Letter from Dr David Morrell dated 5 February 2020 relating to the sponsor’s mental health.·Letter from Dr Neeraj Aggarwal dated 12 February 2020 relating to the sponsor’s mental health and treatment.·Notice of Final Demand from Fines Victoria issued 28 January 2020 sent to the applicant at the sponsor’s Brunswick address.·Toll Invoice dated 29 January 2020 addressed to the applicant at the sponsor’s Brunswick address.·Official Certificate of Marriage for the applicant and the sponsor dated 23 June 2016. The Tribunal has had regard to the following information provided to the Tribunal by the applicant’s representative:·Submissions for the applicant’s representative dated 9 March 2021.·Letter from Dr David Morrell dated 5 February 2020 relating to the sponsor’s mental health.·Letter from Dr David Morrell dated 6 April 2020 relating to the sponsor’s mental health.·Letter from Dr Neeraj Aggarwal dated 12 February 2020 relating to the sponsor’s mental health and treatment.·Psychological Review Assessment on behalf of the sponsor dated 12 May 2020.·Addendum to Psychological Review on behalf of the sponsor dated 22 May 2020.·Psychological review on behalf of the sponsor dated 9 March 2021.·Allianz Life Plan Policy of the sponsor in favour of the applicant and the sponsor.·Continuing lease Agreement at Mildura address including the applicant’s and sponsor’s name made on 1 March 2019 unsigned by the tenants.·Screenshots of video chat records, photos and instant messages between the applicant and the sponsor, dated between 1 May 2019 to March 2021.·Photographs of the applicant and sponsor together, with others, on video chat and of the sponsor visiting the applicant in detention.·Joint Westpac bank account statement in the applicants’ names for the period 6 October 2020 to 6 January 2021.·Vast Capital Home Loan Formal Approval letter for the sponsor’s Brunswick property dated 1 March 2021.·Joint Statement dated 9 March 2021 signed by the applicant and the sponsor, relating to their relationship.·Letter from Mildura Veterinary Hospital undated addressed to the sponsor and the applicant. ·Cash receipt from the parties joint account for $10,800 dated 5 October 2017 for 24 weeks rent.·Cash receipt from the parties joint account for $11,208 in the following increments: 4 February 2018 - 9 April 2018: $2400 plus $1608 4 June 2018: $2400 plus $1200, 30 July 2018: $2400 plus $1200, for 24 weeks rent.·Joint bank account statement for period 5 January 2018 to 6 April 2018.·Email from the applicant’s migration agent dated 7 January 2020 relating to arranging personal visits of the sponsor to the applicant in detention.·Sponsor’s notice of assessment for year ending 30 June 2004.·Joint bank account statement for periods 5 April 2019 to 6 January 2020.·Personal statement of the applicant dated 14 August 2020 responding to adverse information.·Commonwealth bank statement for the applicant for the period 5 July 2019 to 4 October 2019.·Screenshot of the sponsor’s Commonwealth Bank account for the period 1 December 2020 to 9 March 2021.·Statutory declaration of the Mildura property owner dated 11 March 2021 attesting to the relationship.·Undated signed statement of a friend of the sponsor in support of the relationship.·Response to the invitation to comment dated 31 March 2021.·Signed statement of the applicant dated 31 March 2021 responding to the adverse information. ·Signed statement of the applicant dated 14 August 2020 responding to the same adverse information that was put to the applicant by the Tribunal, differently constituted.·Statutory declaration of Tim Milner dated 30 March 2021 in support of the relationship.·Statutory declaration of Boulonmarong Douarpy dated 12 March 2021 in support of the parties’ relationship.·Detention clinical records dated 19 December 2019, 19 March 2020, 6 May 2020, 10 June 2020, 27 June 2020, 3 July 2020, 29 October 2020, 25 November 2020, 27 November 2020, 27 February 2021, 3 March 2021·Pages from a contract of sale in the parties’ names in relation to lot 1607A of 845-851 Whitehorse Road, Box Hill, Victoria dated 10 November 2020Whether the parties are in a spouse or de facto relationship

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.P. WoodSenior Member

Ratio Decidendi

Legal Principle Established

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