Prabhjot (Migration) - [2025] ARTA 139

PRABHJOT (MIGRATION) [2025] ARTA 139 (12 FEBRUARY 2025)
DECISION AND
REASONS FOR DECISION
Applicant:  Mrs Prabhjot
Respondent:  Minister for Immigration and Multicultural Affairs

Tribunal Number: 2208774
Tribunal:General Member B Maiden

Place: Melbourne
Date: 12 February 2025
Decision:The Tribunal sets aside the decision under review and remits the application for a Partner (Migrant) (Class BC) visa for reconsideration, in accordance with the order that the applicant meets the following criteria for a Subclass 100 (Partner) visa:
·cl 100.221(2) of Schedule 2 to the Regulations.

STATEMENT MADE ON 12 FEBRUARY 2025 AT 8:51AM
CATCHWORDS
MIGRATION – Partner (Migrant) (Class BC) visa – Subclass 100 – have a child together – a strong indicator of the parties being in a genuine and continuing relationship – had been living with the sponsor since arriving in Australia – satisfied that the requirements of s 5F(2) of the Act are met – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5, 65, 348
MIGRATION REGULATIONS 1994, R 1.15, SCHEDULE 2, CL 100.221
STATEMENT OF REASONS
APPLICATION FOR REVIEW

On 14 October 2024, the Administrative Appeals Tribunal (“AAT”) became the Administrative Review Tribunal (“the Tribunal”). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (“the Transitional Act”), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
Section 348A(1) of the Act states that the “Minister is taken to be a non-participating party to a proceeding for review of a reviewable migration decision or reviewable protection decision for the purposes of the ART Act.” [1] Accordingly, the Respondent did not appear so there was no contradictor present.
[1] ART Act is the Administrative Review Tribunal Act 2024 (Cth).
This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 1 June 2022 to refuse to grant the visa applicant a Partner (Migrant) (Class BC) visa under s 65 of the Migration Act 1958 (Cth) (“the Act”).
The applicant, an Indian national, applied for the visa on 21 August 2019 on the basis of her relationship with Mr Dharam Paul (her “sponsor”). At that time, Class BC contained one subclass: Subclass 100 (Partner). The criteria for the grant of a Subclass 100 visa are set out in Part 100 of Schedule 2 to the Migration Regulations 1994 (Cth) (“the Regulations”). The primary criteria must be satisfied by at least one applicant.
The delegate, in the decision that the applicant is seeking review of, indicated that the applicant was granted a Partner (Provisional) (class UK) (Subclass 309) visa on 11 February 2021. Department records indicate that the applicant arrived in Australia on 26 November 2021. In this…

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

AGLC: Prabhjot (Migration) [2025] ARTA 139
Case: [2025] ARTA 139
Decision Date: 12 February 2025

CaseChat Overview and Summary

In the matter of Prabhjot (Migration), the applicant, a citizen of India, sought judicial review of a decision made by the Department of Home Affairs to refuse a Partner (Migrant) (Class BC) visa under the Migration Act 1958. The primary issue before the court was whether the applicant met the criteria for a spouse relationship as defined in the Act, specifically whether the applicant was the spouse of the sponsor, who was an Australian citizen. The case was heard and determined by the Federal Circuit and Family Court of Australia.

The legal issues that the court was required to decide included whether the applicant and the sponsor were in a valid marriage and whether the marriage met the criteria for a genuine and continuing relationship as required by the Act. The court was also required to consider the financial and social aspects of the relationship, including the extent of any pooling of financial resources and the nature of the parties' household. The court had to determine whether the applicant met the requirements of clause 100.221 of Schedule 2 to the Regulations, which requires that the applicant meets one of five alternative requirements, including being the spouse or de facto partner of the 'sponsoring partner'.

The court found that the applicant met the requirements of clause 100.221(2) of Schedule 2 to the Regulations, which required that the applicant was the spouse of the sponsor. The court was satisfied that the requirements of s 5F(2) of the Act were met, and the decision under review was remitted. The court noted that the applicant and the sponsor were validly married and had been living together since arriving in Australia. The court also found that the parties had a mutual commitment to a shared life as a married couple and had been living together on a permanent basis. The court found that the applicant met the criteria for a spouse relationship as defined in the Act.

The court set aside the decision under review and remitted the application for a Partner (Migrant) (Class BC) visa for reconsideration, in accordance with the order that the applicant met the following criteria for a Subclass 100 (Partner) visa: cl 100.221(2) of Schedule 2 to the Regulations. The court found that the applicant met the requirements for a spouse relationship as defined in the Act and that the decision under review should be remitted for reconsideration.

Orders

Orders of the court

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Background

Background to the litigation

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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 issue in the present case is whether the applicant is the spouse as defined in s 5F of the sponsor. Are the parties in a spouse or de facto relationship? Clause 100.221 of Schedule 2 to the Regulations requires that the applicant meets one of five alternative requirements. These include cl 100.221(2) and (2A) which require, among other things, that at the time of this decision, the applicant is the spouse or de facto partner of the ‘sponsoring partner’. Unless the applicant was granted a Subclass 309 visa by Ministerial intervention, the ‘sponsoring partner’ is the person who was specified as the applicant’s spouse or de facto partner or intended spouse or de facto partner in the related Subclass 309 application, being an Australian citizen, permanent resident or eligible New Zealand citizen. In the present case the applicant claims to be the spouse of the sponsor, a ‘sponsoring partner’ within the meaning of that term. A copy of the bio pages of the sponsor’s Australian passport appears on the Department file as well as a copy of his Australian citizenship certificate. ‘Spouse’ is defined in s 5F of the Act and provides that a person is the spouse of another where the two persons are in a married relationship. Persons in a married relationship must be married to each other under a marriage that is valid for the purposes of the Act, there must be a mutual commitment to a shared life as a married couple to the exclusion of all others, the relationship must be genuine and continuing, and the couple must live together, or not live separately and apart on a permanent basis: s 5F(2)(a)-(d). In forming an opinion about these matters, regard must be had to all of the circumstances of the relationship. This includes evidence of the financial and social aspects and the nature of the parties’ household and their commitment to each other as set out in reg 1.15A(3), which is extracted in the attachment to this decision. Each of the specific matters contained in reg 1.15A(3) are effectively questions which must be answered: He v MIBP [2017] FCAFC 206.Are the parties validly married? If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. The applicant submitted a copy of the parties’ form of extract from the Marriage Register under Punjab Compulsory Registration of Marriage Act 2021 showing that the parties’ marriage was solemnised on 23 January 2019 and registered on 6 March 2019. On the evidence, the parties are married to each other under a marriage that is valid for the purposes of the Act as required by s 5F(2)(a). Are the other requirements for a spouse relationship met?Financial aspects of the relationship The Tribunal has considered the financial aspects of the relationship, including any joint ownership of real estate or other major assets; joint liabilities; extent of any pooling of financial resources; whether one person in the relationship owes any legal obligations in respect of the other and the basis of any sharing of day-to-day household expenses.(a) Do the parties have any joint ownership of real estate or other major assets? and(b) Do the parties have any joint liabilities?

Decision

Reasons for decision

Therefore the applicant meets cl 100.221(2) of Schedule 2 to the Regulations. The appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 100 visa.DECISION The Tribunal sets aside the decision under review and remits the application for a Partner (Migrant) (Class BC) visa for reconsideration, in accordance with the order that the applicant meets the following criteria for a Subclass 100 (Partner) visa:·cl 100.221(2) of Schedule 2 to the Regulations.

Ratio Decidendi

Legal Principle Established

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