Paniram (Migration) - [2024] AATA 3467

Paniram (Migration) [2024] AATA 3467 (6 September 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mrs Rujira Paniram
CASE NUMBER:  2202325
HOME AFFAIRS REFERENCE(S):          BCC2021/1371340
MEMBER:Edward Howard
DATE:6 September 2024
PLACE OF DECISION:  Brisbane
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) of Schedule 2 to the Regulations
·cl 820.221(1) of Schedule 2 to the Regulations
·reg 2.03A

Statement made on 06 September 2024 at 9:43am

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – genuine and continuing relationship – financial, household and social aspects of relationship, and nature of commitment – limited documentary evidence provided to department, and further evidence provided to tribunal – age and progression and length of relationship – decision made without hearing necessary – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5CB(2), 65, 360(2)(a)
Migration Regulations 1994 (Cth), rr 1.09A(3), 2.03A(2), Schedule 2, cl 820.211(2), 820.221(1)
CASES
Ally v MIAC [2008] FCAFC 49
He v MIBP [2017] FCAFC 206
Jayasinghe v MIMA [2006] FCA 1700
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 6 July 2021 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 820.211(2) of Schedule 2 to the Regulations and Reg. 2.03A.
The Tribunal has had the benefit of receiving extensive evidence and submissions from the parties since the time of the delegate’s decision, which information was unavailable to the delegate. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
In reaching its decision the Tribunal did not consider a Hearing to be necessary, as it was able to find in favour of the review applicant on the basis of the material before it, pursuant to s 360(2)(a) of the Act.
ISSUES AND LAW
The review applicant is Rujira Paniram, a citizen of Thailand and the sponsor is Shane Michael Griffith Baldry, an Australian citizen.
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…

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 Paniram (Migration)

Details

AGLC: Paniram (Migration) [2024] AATA 3467
Case: [2024] AATA 3467
Decision Date: 6 September 2024

CaseChat Overview and Summary

This matter concerned an application for a Partner (Temporary) (Class UK) visa, Subclass 820. The applicant sought review of a decision made by the Department of Home Affairs. The Tribunal, presided over by Edward Howard, was tasked with determining whether the applicant met the criteria for the visa.

The central legal issue before the Tribunal was whether the applicant had provided sufficient evidence to demonstrate a genuine and continuing relationship, encompassing the financial, household, social aspects, and the nature of the commitment to each other, as required by the Migration Regulations 1994. Specifically, the Tribunal had to consider the limited documentary evidence initially provided to the Department and the further evidence submitted to the Tribunal, in light of the applicant's age, progression, and the duration of the relationship.

The Tribunal reasoned that a decision had been made without a hearing, and that further consideration of the evidence was necessary. It applied regulation 1.09A of the Migration Regulations 1994, which mandates consideration of all circumstances of the relationship, including financial, household, and social aspects, as well as the nature of the commitment. The Tribunal found that the application should be remitted for further consideration.

The Tribunal remitted the application for a Partner (Temporary) (Class UK) visa, with a direction that the review applicant meets the criteria specified in cl 820.211(2) and cl 820.221(1) of Schedule 2 to the Regulations.

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 review applicant meets the following criteria for a Subclass 820 (Partner) visa:·cl 820.211(2) of Schedule 2 to the Regulations·cl 820.221(1) of Schedule 2 to the RegulationsEdward 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 remits the application for a Partner (Temporary) (Class UK) visa, with the direction that the review applicant meets the following criteria for a Subclass 820 (Partner) visa:·cl 820.211(2) of Schedule 2 to the Regulations·cl 820.221(1) of Schedule 2 to the RegulationsEdward 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).