Peng (Migration)

[2022] AATA 3847

Peng (Migration) [2022] AATA 3847 (2 November 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Wenliu Peng

REPRESENTATIVE:  Mr Uday Mishra (MARN: 0215810)

CASE NUMBER:  1832094

HOME AFFAIRS REFERENCE(S):          BCC2016/1852173

MEMBER:M. Edgoose

DATE:2 November 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 820 visa:

·cl 820.211(2)(a) of Schedule 2 to the Regulations

·cl 820.221 of Schedule 2 to the Regulations.

Statement made on 02 November 2022 at 10:49am

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – genuine and continuing relationship – household, financial and social aspects of relationship and nature of commitment – documentary evidence and birth of child – decision made without hearing necessary – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5F, 65, 360(2)(a)
Migration Regulations 1994 (Cth), r 1.15A(3), Schedule 2, cls 820.211(2)(a), 820.221

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 applicant a Partner (Temporary) (Class UK) visa under s 65 of the Migration Act 1958 (Cth) (the Act). The delegate refused to grant the visa on 25 October 2018.

2. The applicant applied for the visa on 24 May 2016 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) as the delegate was not satisfied that the relationship was genuine.

4. From 16 May 2020 until the time of this decision the applicant and her representative have made regular submissions of evidence to the Tribunal. The evidence submitted has included joint bank statements, joint utility bills, photographs, medical evidence, Form 888 statutory declarations, loan approval forms, wills, relationship statements and the birth certificate of the couple’s daughter born on 20 December 2020. Given the amount of relevant evidence that has been submitted and that the couple have had a child together the Tribunal is satisfied that the applicant is in a genuine spousal relationship with the sponsor and that they are a family unit.

5. Given the evidence submitted by the applicant the Tribunal is satisfied that the applicant and sponsor meet the requirements of reg 1.15A(3). The evidence submitted includes evidence of the financial aspects of the relationship, the nature of the household, the social aspects of the relationship and the nature of the persons’ commitment to each other.

6. The Tribunal is also satisfied that the couple meet the requirements of s 5F of the Migration Act.

7. In light of the new evidence received, the Tribunal is satisfied that the criterion is met and has concluded that the matter should be remitted for reconsideration.

8. In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the applicant on the basis of the material before it, pursuant to s 360(2)(a) of the Act.

   decision

9. The Tribunal remits the application for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 820 visa:

   ·cl 820.211(2)(a) of Schedule 2 to the Regulations

   ·cl 820.221 of Schedule 2 to the Regulations.

   M. Edgoose
   Member