NGAOSRI (Migration) - [2020] AATA 1956

NGAOSRI (Migration) [2020] AATA 1956 (12 February 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ms Roongtiwa NGAOSRI
CASE NUMBER:  1915971
HOME AFFAIRS REFERENCE(S):          BCC2017/2922153
MEMBER:Mireya Hyland
DATE:12 February 2020
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 of Schedule 2 to the Regulations;
·cl.820.221(1) of Schedule 2 to the Regulations; and
·PIC 4007(1) for the purposes of cl.820.223 of Schedule 2 to the Regulations.

Statement made on 12 February 2020 at 5:08pm
CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) – Subclass 820 (Spouse) – notification period – public health criteria – lodgement of application – defective notification – withdrawal of representative – DOHA received no request for withdrawal – no re-notification sent to new agent – application lodged within prescribed time – applicant is de facto – health cleared – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5CB, 66(1), 347, 494B, 494C, 494D
Migration Regulations 1994 (Cth), Schedule 2 cls 820.211, 820.221,820.223, rr 1.09A, 2.03A, 2.16, 4.10, Schedule 4 Public Interest Criterion (PIC) 4007
CASES

Bajwa v MIAC [2008] FMCA 915
BMY18 v MHA [2019] FCAFC 189
DFQ17 v MIBP [2019] FCAFC 64
Guan v MIAC [2010] FMCA 802
He v MIBP [2017] FCAFC 206
Le v MIAC (2007) 157 FCR 321

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.
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, Roongtiwa Ngaosri, a Partner (Temporary) (Class UK) visa under s.65 of the Migration Act 1958 (the Act).
Ms Ngaosri applied for the visa on 15 August 2017 on the basis of her relationship with her sponsor, Robert Sam Bevinetto. At that time, Class UK contained 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 delegate refused to grant the visa on 19 September 2018 on the basis that cl.820.223 was not met because Ms Ngaosri did not satisfy the health criteria in Public Interest Criterion (PIC) 4007 of Schedule 4 to the Regulations. Ms Ngaosri was represented in relation to the review by her registered migration agent, Ali Taoubi.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issues in the present case are whether the Tribunal has jurisdiction to consider Ms Ngaosri’s review application, whether Ms Ngaosri is Mr Bevinetto’s de facto partner, and whether Ms Ngaosri meets PIC4007(1) of Schedule 4 to the Regulations.
Background
The Tribunal has pieced together the following background from the entries it…

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.

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Details

Case: [2020] AATA 1956
Decision Date: 12 February 2020

CaseChat Overview and Summary

This matter concerned a review application by Ms Ngaosri regarding her Partner (Temporary) (Class UK) Subclass 820 visa application. The dispute centred on whether the Administrative Appeals Tribunal (AAT) had jurisdiction to consider Ms Ngaosri's review application, whether she was in a de facto relationship with Mr Bevinetto, and whether she met the public health criteria under PIC 4007(1) of Schedule 4 to the Regulations. The AAT was required to determine these issues based on the information available from the Department of Home Affairs' (DOHA) case management system.

The primary legal issues before the Tribunal were the jurisdiction to hear the review, the applicant's status as a de facto partner, and her compliance with public health requirements. The Tribunal considered the lodgement of the visa application on 15 August 2017, with a migration agent designated as the authorised recipient for correspondence. A request for health examinations was sent to the agent's email address on 13 February 2018. Crucially, on 21 May 2018, the former agent lodged a form with DOHA indicating her withdrawal as the authorised recipient, stating that all correspondence should be sent directly to the applicant.

The Tribunal reasoned that the lodgement of the withdrawal form by the former agent, which explicitly stated that correspondence should be sent directly to the applicant, was a critical event. Despite the applicant not providing an alternative email address, the form indicated a change in how correspondence should be handled. The Tribunal noted that no re-notification was sent to a new agent or directly to the applicant's personal email address, which was not provided in the initial application. Given these circumstances, the Tribunal concluded that the matter should be remitted for reconsideration.

Orders

Orders of the court

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Background

Background to the litigation

The issues in the present case are whether the Tribunal has jurisdiction to consider Ms Ngaosri’s review application, whether Ms Ngaosri is Mr Bevinetto’s de facto partner, and whether Ms Ngaosri meets PIC4007(1) of Schedule 4 to the Regulations.Background The Tribunal has pieced together the following background from the entries it has been able to obtain from Department of Home Affairs’ (DOHA) case management system (ICSE). On 15 August 2017, Ms Ngaosri lodged a provisional and permanent partner visa application with the assistance of a migration agent (the former agent). Written notice was given to DOHA by Ms Ngaosri that the former agent was to be her authorised recipient for correspondence. The former agent’s business address and email address were included in the application form for the purposes of receiving correspondence. Ms Ngaosri’s residential address in [Suburb 1], New South Wales (the [Suburb 1] address) was also included in the application form. Ms Ngaosri did not include any email address other than the former agent’s email address in the partner visa application. There is no persuasive evidence that Ms Ngaosri or anyone else provide any email address other than the former agent’s email address to DOHA at any time between the time of application on15 August 2017 and the delegate’s decision on 19 September 2018 for the purposes of receiving documents or at all. On 9 February 2018, there is a DOHA file note stating that on the evidence available the delegate was satisfied that Ms Ngaosri’s and Mr Bevinetto’s relationship was genuine and continuing, the couple had a mutual commitment to a shared life to the exclusion of all others, and they were living together. On 13 February 2018, a requested that Ms Ngaosri undergo the mandatory health examinations was sent to the former agent’s email address. On 21 May 2018, the former agent lodged an ‘Appointment or withdrawal of an authorised recipient (including migration agent)’ form with DOHA online with transaction reference number (TRN) EGOFHFHSFF, being the TRN for Ms Ngaosri’s partner visa application. The purpose of the form was listed as ‘Ending an appointment’. The form states that it is to notify DOHA of a change in the recipient of correspondence for the application or migration agent representing the application. On the form, the former agent notified DOHA that she was being withdrawn. In these circumstances the form states ‘All correspondence will be sent directly to the applicant.’ Also on 21 May 2018, the former agent lodged another identical form online which has the TRN EGOFHUKDXC. There is no explanation as to why the former agent lodged two online forms withdrawing as Ms Ngaosri’s authorised recipient and informing DOHA future correspondence for the application should be sent to Ms Ngaosri’s address. It may be that EGOFHUKDXC is the TRN for Ms Ngaosri’s student visa application, although that was granted in 2015 and ceased on 15 August 2017.

Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.CONSIDERATION OF CLAIMS AND EVIDENCE The issues in the present case are whether the Tribunal has jurisdiction to consider Ms Ngaosri’s review application, whether Ms Ngaosri is Mr Bevinetto’s de facto partner, and whether Ms Ngaosri meets PIC4007(1) of Schedule 4 to the Regulations.Background The Tribunal has pieced together the following background from the entries it has been able to obtain from Department of Home Affairs’ (DOHA) case management system (ICSE). On 15 August 2017, Ms Ngaosri lodged a provisional and permanent partner visa application with the assistance of a migration agent (the former agent). Written notice was given to DOHA by Ms Ngaosri that the former agent was to be her authorised recipient for correspondence. The former agent’s business address and email address were included in the application form for the purposes of receiving correspondence. Ms Ngaosri’s residential address in [Suburb 1], New South Wales (the [Suburb 1] address) was also included in the application form. Ms Ngaosri did not include any email address other than the former agent’s email address in the partner visa application. There is no persuasive evidence that Ms Ngaosri or anyone else provide any email address other than the former agent’s email address to DOHA at any time between the time of application on15 August 2017 and the delegate’s decision on 19 September 2018 for the purposes of receiving documents or at all. On 9 February 2018, there is a DOHA file note stating that on the evidence available the delegate was satisfied that Ms Ngaosri’s and Mr Bevinetto’s relationship was genuine and continuing, the couple had a mutual commitment to a shared life to the exclusion of all others, and they were living together. On 13 February 2018, a requested that Ms Ngaosri undergo the mandatory health examinations was sent to the former agent’s email address. On 21 May 2018, the former agent lodged an ‘Appointment or withdrawal of an authorised recipient (including migration agent)’ form with DOHA online with transaction reference number (TRN) EGOFHFHSFF, being the TRN for Ms Ngaosri’s partner visa application. The purpose of the form was listed as ‘Ending an appointment’. The form states that it is to notify DOHA of a change in the recipient of correspondence for the application or migration agent representing the application. On the form, the former agent notified DOHA that she was being withdrawn. In these circumstances the form states ‘All correspondence will be sent directly to the applicant.’ Also on 21 May 2018, the former agent lodged another identical form online which has the TRN EGOFHUKDXC. There is no explanation as to why the former agent lodged two online forms withdrawing as Ms Ngaosri’s authorised recipient and informing DOHA future correspondence for the application should be sent to Ms Ngaosri’s address. It may be that EGOFHUKDXC is the TRN for Ms Ngaosri’s student visa application, although that was granted in 2015 and ceased on 15 August 2017.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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