Mayu (Migration) - [2021] AATA 2301

Mayu (Migration) [2021] AATA 2301 (21 June 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Alongkot Mayu
CASE NUMBER:  1800675
HOME AFFAIRS REFERENCE(S):          BCC2015/3594226
MEMBER:Russell Matheson
DATE:21 June 2021
PLACE OF DECISION:  Sydney
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(c) of Schedule 2 to the Regulations and;
·cl.820.221(4) of Schedule 2 to the Regulations.

Statement made on 21 June 2021 at 11:56am
CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – sponsorship limitation – two previous sponsorships – compelling circumstances affecting the sponsor – first husband left after obtaining permanent residency – second partnership ended due to family violence – documentary and candid and credible oral evidence of long-term relationship – valid marriage and substantial business ties – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.03, 1.20J, cls 820.211(2)(c), 820.221(4)
CASE
Babicci v MIMIA [2004] FCA 1645; [2005] FCAFC 77
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.
The applicant is a 40-year-old male national of Thailand. He applied for the visa on 30 November 2015 on the basis of his relationship with his sponsor (Wunnarat Lowpetsawat). 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 (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 primary criteria must be satisfied by at least one applicant. The primary criteria includes cl.820.212(2)(c) which requires the applicant to be sponsored by the sponsor at the time of application, and cl.820.221(4) which requires the sponsorship to continue; to have been approved by the Minister and be still in force.
The delegate refused to grant the visa because the sponsor did not satisfy the sponsorship requirements.
The applicant appeared before the Tribunal on 29 October 2020 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor, Mr Chayatat Lowepetsawat, Mr Wiwat Malipa and Mr Austin Day. The Tribunal hearing was conducted with the assistance of an interpreter in the Thai and English languages.
The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The Tribunal had before it a copy of the Department’s file containing the visa application, sponsorship form,…

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 Mayu (Migration)

Details

AGLC: Mayu (Migration) [2021] AATA 2301
Case: [2021] AATA 2301
Decision Date: 21 June 2021

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered an application for a Partner (Temporary) (Class UK) visa, Subclass 820. The applicant sought review of a delegate's decision to refuse the visa, primarily on the grounds that the sponsor had previously sponsored two de facto partners and therefore faced a sponsorship limitation, with no compelling reasons found to waive this restriction. The Tribunal received documentary evidence, including a marriage certificate, business documents, and statements from the applicant, sponsor, and three witnesses.

The central legal issue before the Tribunal was whether there were compelling circumstances affecting the sponsor that justified waiving the sponsorship limitation, thereby allowing the visa application to proceed. The Tribunal was required to assess the evidence presented regarding the sponsor's previous sponsorships and the nature of the current relationship to determine if the threshold for compelling reasons was met. Additionally, the Tribunal needed to confirm that the applicant met the basic sponsorship requirements under clause 820.211(2)(c) of Schedule 2 to the Regulations.

The Tribunal found the oral and documentary evidence provided by the applicant, sponsor, and witnesses to be candid and credible. It accepted their evidence regarding the formation of their relationship, their knowledge of each other's backgrounds, finances, business arrangements, and social connections. The Tribunal also confirmed that the applicant was over 18 and the sponsor was an Australian citizen, and that the requisite sponsorship form had been lodged. Crucially, the Tribunal determined that the delegate had not adequately assessed the evidence concerning the compelling circumstances for waiving the sponsorship limitation.

Consequently, the Tribunal remitted the application for reconsideration by the Minister, with a direction that the applicant met the criteria under cl.820.211(2)(c) and cl.820.221(4) of Schedule 2 to the Regulations. This indicated that the Tribunal found sufficient grounds to proceed with the assessment of the visa application, subject to the Minister's further consideration of the remaining criteria.

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 applicant meets the following criteria for a Subclass 820 (Partner) visa:·cl.820.211(2)(c) of Schedule 2 to the Regulations; and·cl.820.221(4) of Schedule 2 to the Regulations.Russell MathesonMember

Ratio Decidendi

Legal Principle Established

For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.CONSIDERATION OF CLAIMS AND EVIDENCE The Tribunal had before it a copy of the Department’s file containing the visa application, sponsorship form, and evidence provided to the Department and Tribunal in relation to the application. The applicant provided the Tribunal a copy of the delegate’s decision. The delegate refused the application because it says the sponsor has previously successfully sponsored two de facto partners to Australia and so is ineligible to be a sponsor. The delegate found there were no compelling reasons to waive the sponsorship limitation. The Tribunal received written submissions from the review applicant’s representative on 21 October; statements from the applicant, sponsor, the three witnesses (listed above), a marriage certificate showing the parties were married on 30 November 2018, and various business-related documents and documents demonstrating the parties’ relationship. The applicant and sponsor gave their oral evidence separately. The parties gave evidence about the formation of their relationship, their knowledge of each other’s family background and relationship histories, finances, assets, business arrangements, friends, and household arrangements. The Tribunal found their evidence and the three witnesses to be candid and credible. The Tribunal accepts their oral evidence on that basis. The Tribunal has considered their oral evidence together with the documentary evidence to reach the findings below. The delegate has not made an assessment of the evidence in respect of the requirement that the applicant is required to be the spouse or de facto partner of the sponsor. Having regard to the President’s Direction - Conducting Migration and Refugee Reviews the Tribunal will restrict its review to the matters decided by the delegate. The issue in the present case is whether the sponsorship of the applicant’s visa should be approved because there are compelling reasons affecting the sponsor. Is the applicant sponsored? Clause 820.211 requires at the time of application; the applicant meets one of several alternative sub criteria. These include 820.211 (2)(c) which requires that the applicant was, at the time of application, sponsored by the sponsor, where such person has turned 18; or where they have not, by the sponsor’s parent or guardian who has turned 18 and is either an Australian citizen, permanent resident or eligible New Zealand citizen (as defined in r.1.03 of the Regulations). A copy of the applicant’s passport is on the Department’s file. The Tribunal finds the applicant has turned 18. A copy of the sponsor’s passport is on the Department’s file. The Tribunal finds the sponsor is an Australian citizen. The Department’s file contains the sponsorship Form 40SP lodged with the application and signed by the sponsor. The Tribunal finds that she completed the requisite sponsorship form and the applicant was, at the time of application, sponsored by the sponsor.