Maneewan (Migration) - [2023] AATA 3345

Maneewan (Migration) [2023] AATA 3345 (22 August 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ms Natthawara Maneewan
REPRESENTATIVE:  Mr Christopher David Parish (MARN: 9791199)
CASE NUMBER:  2109463
HOME AFFAIRS REFERENCE(S):          BCC2019/3577805
MEMBER:Peter Emmerton
DATE:22 August 2023
PLACE OF DECISION:  Adelaide

DECISION:The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.

Statement made on 22 August 2023 at 2:30pm
CATCHWORDS
MIGRATION –Partner (Temporary) (Class UK) visa – Subclass 820 ––no evidence provided to indicate that the financial aspects were satisfied at the time of the application – insufficient evidence has been presented – not satisfied that the couple were in a de facto relationship for at least 12 months prior to the visa application – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5CB, 65, 359, 376
Migration Regulations 1994, r 1.09, Schedule 2, cls 820.211, 820.221
CASES
Ally v MIAC [2008] FCAFC 49
Bretag v IRT [1991] FCA 582
He v MIBP [2017] FCAFC 206
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 18 July 2019 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.
The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl 820.211(2)(c) because despite several written requests the Department had not received evidence that the applicant is sponsored by their partner to migrate to Australia.
The applicant appeared before the Tribunal on 22 August 2023 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Jason Leslie Larcombe, the sponsor.
The applicant was represented in relation to the review.
For the following reasons, 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 couple are in a genuine spousal relationship as defined by 5F of the Act.
In determining the applicants’ claims the Tribunal must first make findings of fact on material matters in dispute. This may involve an assessment of credibility and in doing so, the Tribunal is aware of the need and the importance of being sensitive to the circumstances and the difficulties applicants often face before the Tribunal in their circumstances.
The applicants rely on the evidence given before the Tribunal together with written…

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 Maneewan (Migration)

Details

AGLC: Maneewan (Migration) [2023] AATA 3345
Case: [2023] AATA 3345
Decision Date: 22 August 2023

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered an application by Ms. Maneewan for a Partner (Temporary) (Class UK) visa (subclass 820). The applicant claimed to be the de facto partner of an Australian citizen. The core of the dispute was whether the applicant and her sponsor were in a genuine and continuing de facto relationship for at least 12 months prior to the visa application, and whether the financial aspects of their relationship were satisfied.

The Tribunal was required to determine if the parties met the criteria for a de facto relationship as defined by section 5CB of the Migration Act 1958 (Cth) and Regulation 1.09A of the Migration Regulations 1994 (Cth). This involved assessing all circumstances of the relationship, including financial, social, household, and commitment aspects. Specifically, the Tribunal had to consider whether there was sufficient evidence to establish a mutual commitment to a shared life, that the couple lived together, and that the relationship was genuine and continuing.

The Tribunal found that the Department had made multiple requests for further information regarding the sponsorship and the de facto relationship, which were not responded to by the applicant or sponsor. The applicant stated she did not fully understand the requirements, and the sponsor admitted he had not accessed the email address provided to the Department. Given the lack of response to these requests and the insufficient evidence presented, the Tribunal concluded that it was not satisfied that the parties were in a de facto relationship for the required period, nor that the financial aspects of the relationship were adequately demonstrated.

Consequently, the Tribunal affirmed the decision not to grant the applicant the Partner (Temporary) (Class UK) visa.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

For the following reasons, 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 couple are in a genuine spousal relationship as defined by 5F of the Act. In determining the applicants’ claims the Tribunal must first make findings of fact on material matters in dispute. This may involve an assessment of credibility and in doing so, the Tribunal is aware of the need and the importance of being sensitive to the circumstances and the difficulties applicants often face before the Tribunal in their circumstances. The applicants rely on the evidence given before the Tribunal together with written submissions and supporting evidence provided to the Tribunal and previously to the Department.Whether the parties are in a spouse or de facto relationship Clause 820.211(2)(c) and 820.221 require that at the time the visa application was made, and at the time of this decision, the 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 applicant claims to be the de facto partner of the sponsor who is an Australian citizen.Are the parties in a de facto relationship? 'De facto partner' is defined in 5CB of the Act, which provides that a person is in a de facto relationship with another person to whom they are not married if they have a mutual commitment to a shared life to the exclusion of all others, the relationship is genuine and continuing, the couple live together, or do not live separately and apart on a permanent basis, and the couple are not related by family: s 5CB(2). In forming an opinion whether they are in a de facto relationship consideration must be given 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 1.09A(3) which is attached to this decision. Each of the specific matters contained in reg 1.09A(3) are effectively questions which must be answered: He v MIBP [2017] FCAFC 206. The Tribunal notes that after assessing the visa application dated 18 July 2019, the Department did on 3 separate occasions request in writing further information so as to facilitate the processing of the visa application. This on each occasion included the Sponsorship for a partner to migrate to Australia online form as evidence that they were sponsored by their partner to migrate to Australia. Those requests were made on 12 January 2021, 19 February 2021 and 19 May 2021. In each case the applicant was given 28 days to respond and in each case no response was received. At the time of the delegate’s decision on 6 July 2021 no response had been received. The Tribunal enquired at the hearing why this had been the case. The visa applicant said the sponsor took care of the application and she didn’t fully understand what was needed. The sponsor acknowledged that he had not accessed the email address he provided to the Department and had not provided alternative communication addresses to the Department. He acknowledged that it was his responsibility to do so.

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.Peter EmmertonMemberATTACHMENT - Extract from Migration Regulations 19941.09A De facto partner and de facto relationship(1)For subsection 5CB (3) of the Act, this regulation sets out arrangements for the purpose of determining whether 1 or more of the conditions in paragraphs 5CB (2) (a), (b), (c) and (d) of the Act exist.Note 1 See regulation 2.03A for the prescribed criteria applicable to de facto partners.Note 2 The effect of subsection 5CB (1) of the Act is that a person is the de facto partner of another person (whether of the same sex or a different sex) if the person is in a de facto relationship with the other person.Subsection 5CB (2) sets out conditions about whether a de facto relationship exists, and subsection 5CB (3) permits the regulations to make arrangements in relation to the determination of whether 1 or more of those conditions 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 in a de facto relationship with 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 affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.Peter EmmertonMemberATTACHMENT - Extract from Migration Regulations 19941.09A De facto partner and de facto relationship(1)For subsection 5CB (3) of the Act, this regulation sets out arrangements for the purpose of determining whether 1 or more of the conditions in paragraphs 5CB (2) (a), (b), (c) and (d) of the Act exist.Note 1 See regulation 2.03A for the prescribed criteria applicable to de facto partners.Note 2 The effect of subsection 5CB (1) of the Act is that a person is the de facto partner of another person (whether of the same sex or a different sex) if the person is in a de facto relationship with the other person.Subsection 5CB (2) sets out conditions about whether a de facto relationship exists, and subsection 5CB (3) permits the regulations to make arrangements in relation to the determination of whether 1 or more of those conditions 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 in a de facto relationship with 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).