Manzano (Migration) - [2023] AATA 4619

Manzano (Migration) [2023] AATA 4619 (23 November 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ms Lucie Catherine Manzano
CASE NUMBER:  1912758
HOME AFFAIRS REFERENCE(S):          BCC2017/4673544
MEMBER:Edward Howard
DATE:23 November 2023
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.

Statement made on 23 November 2023 at 4:27pm

CATCHWORDS
MIGRATION –Partner (Temporary) (Class UK) visa – Subclass 820 – victim of family violence – relationship ceased – applicant and sponsor were not in a de facto relationship for at least 12 months prior to the date of the application – limited evidence as to the nature of their household and living arrangements – Tribunal makes no finding in relation to whether family violence occurred – applicant does not satisfy the threshold criteria to be in a de facto partner relationship at the time of application– decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5CB, 65
Migration Regulations 1994, rr 1.09,2.03, 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 7 December 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.
The delegate refused to grant the visa on the basis that the review applicant did not satisfy cl 820.221.
The review applicant appeared before the Tribunal on 14 November 2023 to give evidence and present arguments. The Tribunal also received oral evidence from Belinda Kuhlewein, Daniel Kuhlewein, Alice Balle, Benoit Guerville Balle and Marianne Findlay.
For the following reasons, the Tribunal has concluded that decision under review should be affirmed.
BACKGROUND
The review applicant is Lucie Catherine Manzano, aged 32 years, a citizen of France and the sponsor is David Alan Bertram, aged 52 years, an Australian citizen.
CONSIDERATION OF CLAIMS AND EVIDENCE
In the present case, the review applicant claims her relationship with the sponsor has ceased and she has been the victim of family violence. For visa applications made on or after 9 November 2009, the Regulations explicitly require family violence to have occurred when the partner or spousal relationship was still in existence. If the Tribunal is not satisfied that…

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 Manzano (Migration)

Details

AGLC: Manzano (Migration) [2023] AATA 4619
Case: [2023] AATA 4619
Decision Date: 23 November 2023

CaseChat Overview and Summary

This matter concerned an application by Lucie Catherine Manzano, a citizen of France, for a Partner (Temporary) (Class UK) visa (subclass 820). The applicant claimed her relationship with the sponsor, David Alan Bertram, an Australian citizen, had ceased and that she had been a victim of family violence. The Tribunal was required to determine whether the applicant was in a de facto partner relationship with the sponsor at the time of the visa application and whether the family violence exception to the continuing relationship requirement was available.

The Tribunal considered the requirements of the Migration Regulations 1994, specifically clauses 820.211(2)(a) and 820.221, which stipulate that an applicant must be the spouse or de facto partner of an Australian citizen or permanent resident at the time of application and at the time of the decision. The Tribunal noted that for applications made after 9 November 2009, family violence must have occurred while the partner or spousal relationship was still in existence for the exception to apply. The court also acknowledged that evidence of events occurring after the visa application could be considered if it logically tended to show the existence or non-existence of the relationship at the time of application.

The Tribunal found that there was limited evidence regarding the nature of the household and living arrangements between the applicant and the sponsor. Crucially, the Tribunal made no finding that family violence had occurred. Consequently, the Tribunal concluded that the applicant did not satisfy the threshold criteria for being in a de facto partner relationship with the sponsor at the time of the application. The Tribunal affirmed the decision not to grant the applicant the visa.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

For the following reasons, the Tribunal has concluded that decision under review should be affirmed.BACKGROUND The review applicant is Lucie Catherine Manzano, aged 32 years, a citizen of France and the sponsor is David Alan Bertram, aged 52 years, an Australian citizen. CONSIDERATION OF CLAIMS AND EVIDENCE In the present case, the review applicant claims her relationship with the sponsor has ceased and she has been the victim of family violence. For visa applications made on or after 9 November 2009, the Regulations explicitly require family violence to have occurred when the partner or spousal relationship was still in existence. If the Tribunal is not satisfied that a partner or spousal relationship existed, the family violence exception to the continuing relationship requirement will not be available: r.1.23. Therefore, the issues in the present matter concern whether the review applicant was in a partner relationship with the sponsor at the time of the visa application, and whether she may avail herself of the ‘family violence’ exception to the requirement to have maintained the partner relationship at the time of this decision.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 1.09A(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 partner 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] [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 de facto partner 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 de facto partner of the sponsor who is an Australian citizen.Are the parties in a de facto relationship?

Evidence

Evidence Before The Court

The review applicant is Lucie Catherine Manzano, aged 32 years, a citizen of France and the sponsor is David Alan Bertram, aged 52 years, an Australian citizen. CONSIDERATION OF CLAIMS AND EVIDENCE In the present case, the review applicant claims her relationship with the sponsor has ceased and she has been the victim of family violence. For visa applications made on or after 9 November 2009, the Regulations explicitly require family violence to have occurred when the partner or spousal relationship was still in existence. If the Tribunal is not satisfied that a partner or spousal relationship existed, the family violence exception to the continuing relationship requirement will not be available: r.1.23. Therefore, the issues in the present matter concern whether the review applicant was in a partner relationship with the sponsor at the time of the visa application, and whether she may avail herself of the ‘family violence’ exception to the requirement to have maintained the partner relationship at the time of this decision.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 1.09A(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 partner 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] [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 de facto partner 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 de facto partner of the sponsor who is an Australian citizen.Are the parties in a de facto relationship?

Decision

Reasons for decision

For the reasons above, the review 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.Edward HowardMemberATTACHMENT - 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.Edward HowardMemberATTACHMENT - 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).