Sathandla Halli Vijayakumar (Migration) - [2022] AATA 91

Sathandla Halli Vijayakumar (Migration) [2022] AATA 91 (5 January 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division
APPLICANT:  Mr Rajath Sathandla Halli Vijayakumar
REPRESENTATIVE:  Ms Rosemary Acutt (MARN: 1461394)
CASE NUMBER:  1823440
HOME AFFAIRS REFERENCE(S):          BCC2017/865023
MEMBER:Meredith Jackson
DATE:5 January 2022
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)(a) of Schedule 2 to the Regulations
·cl.820.221 of Schedule 2 to the Regulations

Statement made on 05 January 2022 at 6:05pm

CATCHWORDS

MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – genuine and continuing relationship – insufficient information concerning the sponsor – sponsorship declaration – National Police Check – extensive shared financial and business arrangements – shared household duties reflecting business commitments – social and professional recognition of the relationship – decision under review remitted

LEGISLATION

Migration Act 1958, ss 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 applicant a Partner (Temporary) (Class UK) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 5 March 2017 on the basis of his relationship with his 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 because he had not provided sufficient evidence that he was the spouse or de facto partner of the sponsor; and there was insufficient information before the delegate concerning the sponsor.

4. The applicant was represented in relation to the review by her representative Ms Rosemary Acutt.

5. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

CASE SUMMARY

6. The visa applicant is Mr Rajath Sathandla Halli Vijaykumar, a citizen of India born in 1985. He sought the visa on the basis of his marriage to Dr Shubha Suvarana, born in 1982, an Australian citizen by grant. The parties operate six dental clinics in regional Queensland and a denture clinic in Maryborough. The applicant, an engineer by training, runs the business and is a director of the company, while the sponsor is a director, trustee and the…

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: Sathandla Halli Vijayakumar (Migration) [2022] AATA 91
Case: [2022] AATA 91
Decision Date: 5 January 2022

CaseChat Overview and Summary

The applicant, Sathandla Halli Vijayakumar, sought judicial review of a decision made by the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs concerning her Partner (Temporary) (Class UK) visa, Subclass 820. The core of the dispute revolved around whether the applicant and her sponsor had a genuine and continuing relationship, as required for the visa.

The Federal Circuit Court was required to determine whether the delegate of the Minister had erred in finding that the applicant had failed to provide sufficient information regarding the sponsor, particularly in relation to a sponsorship declaration and a National Police Check. The court also considered whether the delegate had adequately assessed the evidence of the couple's extensive shared financial and business arrangements, their shared household duties which reflected business commitments, and the social and professional recognition of their relationship.

In its reasoning, the Court found that the delegate had failed to properly consider the totality of the evidence presented by the applicant. The extensive shared financial and business arrangements, coupled with the practicalities of their shared household duties which were intrinsically linked to their business commitments, and the social and professional recognition of their relationship, were significant factors that the delegate had not given sufficient weight. The Court applied the principles of administrative law, emphasizing the need for a delegate to undertake a comprehensive and balanced assessment of all relevant evidence when determining the genuineness of a relationship for visa purposes.

Consequently, the Court remitted the decision under review to the delegate for reconsideration according to law.

Orders