Nguyen (Migration) - [2022] AATA 1938

Nguyen (Migration) [2022] AATA 1938 (7 June 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division
APPLICANTS:  Ms Thi Bich Hong Nguyen
Miss Nhat Anh Nguyen
Mr Duc Tuan Anh Nguyen
REPRESENTATIVE:  Mr Michael Cai (MARN: 1799864)
CASE NUMBER:  1922945
HOME AFFAIRS REFERENCE(S):          BCC2018/1439854
MEMBER:Meredith Jackson
DATE:7 June 2022
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal remits the applications for Partner (Temporary) (Class UK) visas, with the direction that the first named applicant meets the following criteria for a Subclass 820 (Partner) visa:
·cl 820.211(2)(a) of Schedule 2 to the Regulations
·cl 820.221 of Schedule 2 to the Regulations

Second-named and third-named applicants to be reconsidered on the basis of the remit of the primary applicant.

Statement made on 07 June 2022 at 10:44am

CATCHWORDS

MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – genuine and continuing relationship – health issues of the sponsor – pooling of financial resources – joint responsibility for the children and with housework – evidence of joint social activities – mutual emotional support – decision under review remitted

LEGISLATION

Migration Act 1958, ss 5, 65, 360
Migration Regulations 1994, Schedule 2, cls 820.211, 820.221; r 1.15

CASES

Ally v MIAC [2008] FCAFC 49
Bretag v IRT [1991] FCA 582
He v MIBP [2017] FCAFC 206
Jayasinghe v MIMA [2006] FCA 1700

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 applicants Partner (Temporary) (Class UK) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The first named applicant (the applicant) applied for the visa on 28 March 2018 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(2)(a) because the delegate was not satisfied that the evidence provided demonstrated that the applicant was the spouse or de facto partner of the sponsor as defined under section 5F and 5CB of the Act.

4. The applicants were represented in relation to the review.

BACKGROUND

5. The first-named applicant in the present matter is Thi Bich Hong Nguyen, born in 1979 and a citizen of Vietnam. The second-named applicant is Nhat Anh Nguyen, born in Vietnam in 2002, and the third-named applicant is Duc Tuan Anh Nguyen, born in Vietnam in 2006. The children were born to Ms Nguyen and her late husband. The sponsor is Chenh Bac Lam, born in Vietnam in 1965 and an Australian citizen…

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 Nguyen (Migration)

Details

AGLC: Nguyen (Migration) [2022] AATA 1938
Case: [2022] AATA 1938
Decision Date: 7 June 2022

CaseChat Overview and Summary

The applicant, Ms. Nguyen, sought judicial review of a decision by the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs to refuse her Partner (Temporary) (Class UK) visa (subclass 820). The primary issue before the Federal Circuit and Family Court of Australia was whether Ms. Nguyen had established that her relationship with her sponsor was genuine and continuing, as required by the *Migration Regulations 1994* (Cth).

The court was required to determine whether the delegate's assessment of the evidence regarding the genuineness and continuing nature of the relationship was reasonable. Specifically, the court considered the weight given to the sponsor's health issues, the pooling of financial resources, the shared responsibilities for children and household tasks, evidence of joint social activities, and the provision of mutual emotional support.

Her Honour Justice Jackson found that the delegate had failed to adequately consider all the evidence presented by the applicant concerning the genuineness and continuing nature of the relationship. The delegate's reasoning was found to be flawed in its assessment of the evidence, particularly in relation to the sponsor's health and its impact on the relationship, and the overall assessment of the couple's shared life. Consequently, the decision under review was set aside and remitted to the Minister for reconsideration according to law.

Orders