Rehna (Migration) - [2022] AATA 3831

Rehna (Migration) [2022] AATA 3831 (18 October 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Ms Nughmana Rehna
VISA APPLICANT:  Mr Usman Ali
REPRESENTATIVE:  Mr Mahalingam Sutharshan (MARN: 0961664)
CASE NUMBER:  1929439
DIBP REFERENCE(S):  BCC2018/3954500
MEMBER:Linda Holub
DATE:18 October 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the application for a Partner (Provisional) (Class UF) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 309 (Partner (Provisional)) visa:
·cl.309.222 of Schedule 2 to the Regulations

Statement made on 18 October 2022 at 10:21am

CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – sponsorship limitation – two previous sponsorships and marriages – arranged marriages, family violence and divorces – some inconsistent or conflicting evidence – compelling circumstances affecting sponsor – long-standing relationship and valid marriage – mental health – best interests of children – child born to parties – continued separation of child from one parent – close relationship with sponsor’s other children – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359A
Migration Regulations 1994 (Cth), rr 1.03, 1.20J(2), Schedule 2, cls 309.213, 309.222

CASES
Babicci v MIMIA (2005) 141 FCR 285
Nagaki v MIBP [2016] FCCA 1070

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 Immigration on 21 August 2019 to refuse to grant the visa applicant a Partner (Provisional) (Class UF) visa under s.65 of the Migration Act 1958 (the Act).
The visa applicant applied for the visa on 27 June 2018 on the basis of his relationship with his sponsor, the review applicant. At that time, Class UF contained only one subclass: Subclass 309 (Partner (Provisional)). The criteria for the grant of this visa are set out in Part 309 of Schedule 2 to the Migration Regulations 1994 (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 visa applicant did not satisfy cl.309.222 because the delegate was not satisfied that the circumstances presented by the applicant are significant enough to constitute compelling circumstances as per Regulation 1.20J(2). The sponsor (‘the review applicant’) seeks review of the delegate’s decision.
The review applicant appeared before the Tribunal on 4 October 2022 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant and the review applicant’s sister and brother-in-law.
On the evidence before it, the Tribunal considered it would be appropriate to make a favourable decision on the papers.
The review applicant was represented in relation to the review.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

BACKGROUND

The visa applicant was born in Sarai Alamgir, Punjab Pakistan in October 1989 and…

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 Rehna (Migration)

Details

AGLC: Rehna (Migration) [2022] AATA 3831
Case: [2022] AATA 3831
Decision Date: 18 October 2022

CaseChat Overview and Summary

The Administrative Appeals Tribunal (AAT) considered the application of Rehna for a Partner (Provisional) visa (subclass 309). The applicant’s sponsor had previously been involved in two other marriages and sponsorships, leading to a sponsorship limitation being imposed. The AAT was required to determine whether compelling circumstances existed that justified the sponsor’s continued sponsorship despite this limitation, and whether the best interests of the children involved were adequately considered.

The central legal issue before the Tribunal was whether the sponsor's history of previous marriages and divorces, some of which were described as arranged marriages involving family violence, constituted compelling circumstances that warranted an exception to the sponsorship limitation. Additionally, the Tribunal had to assess whether the best interests of the children, including a child born to the parties and the sponsor's other children, had been properly taken into account in the decision-making process.

In its reasoning, the Tribunal acknowledged the sponsor's difficult personal history, including experiences of family violence and mental health challenges, which contributed to the breakdown of previous relationships. It also recognised the long-standing nature of the current relationship between the applicant and the sponsor, and the validity of their marriage. The Tribunal found that the continued separation of the child born to the parties from one parent, and the close relationship the sponsor had with their other children, were significant factors to consider. Ultimately, the Tribunal determined that the decision under review should be remitted for reconsideration.

Orders