Ly (Migration) - [2022] AATA 4481

Ly (Migration) [2022] AATA 4481 (7 October 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ms Thi Thanh Thao Ly
REPRESENTATIVE:  Mr HUU LOC NGUYEN (MARN: 1795573)
CASE NUMBER:  1836218
HOME AFFAIRS REFERENCE(S):          BCC2017/4332832
MEMBER:Edward Howard
DATE:7 October 2022
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 of Schedule 2 to the Regulations

Statement made on 07 October 2022 at 5:56pm

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – genuine spousal relationship – financial aspects – joint ownership of a business – nature of the household – social aspects – nature of the commitment – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5F, 65
Migration Regulations 1994 (Cth), r 1.15A; Schedule 2, cls 820.211, 820.221
CASES
He v MIBP [2017] FCAFC 206
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 to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
2. The applicant applied for the visa on 17 November 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 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 820.211.
4. The applicant appeared before the Tribunal on 6 September 2022 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor, Mr Tu Thien Dam and Ms Diep Le. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.
5. The applicant was represented in relation to the review.
6. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
BACKGROUND
7. The visa applicant is Ms Thi Thanh Thao Ly, aged 25, a citizen of Vietnam and the sponsor is Mr Tu Thien Dam aged 30, an Australian citizen. At the time of the visa application in November 2017, the parties claimed to have been in a relationship from 2016. The parties were married on 29 July 2017 in Australia.
ISSUES AND LAW
8. 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…

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 Ly (Migration)

Details

AGLC: Ly (Migration) [2022] AATA 4481
Case: [2022] AATA 4481
Decision Date: 7 October 2022

CaseChat Overview and Summary

This matter concerned an application for a Partner (Temporary) (Class UK) visa, subclass 820. The applicant sought review of a decision concerning their eligibility for this visa. The core of the dispute revolved around whether the applicant had demonstrated a genuine spousal relationship, encompassing financial, household, social, and commitment aspects, as required by the Migration Regulations 1994.

The legal issues before the Tribunal were whether the applicant met the criteria for a subclass 820 visa, specifically as outlined in cl 820.211(2) and cl 820.221 of Schedule 2 to the Regulations. This required an assessment of the genuineness and the nature of the spousal relationship, considering various factors stipulated in the Regulations.

The Tribunal, presided over by Member Edward Howard, determined that the application should be remitted. The reasoning involved an examination of the circumstances of the relationship, including financial aspects such as joint ownership of a business, the nature of the household, social interactions, and the overall commitment between the parties. The Tribunal directed that the visa applicant be considered to meet the specified criteria for the subclass 820 visa.

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

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 visa 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 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 visa 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 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).