SHAHIN (Migration) - [2021] AATA 2611

SHAHIN (Migration) [2021] AATA 2611 (4 June 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr MD AL KALAM SHAHIN
CASE NUMBER:  1804739
HOME AFFAIRS REFERENCE(S):          BCC2016/3282959
MEMBER:Meena Sripathy
DATE:4 June 2021
PLACE OF DECISION:  Sydney
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 of Schedule 2 to the Regulations
·cl 820.221 of Schedule 2 to the Regulations

Statement made on 04 June 2021 at 10:41am
CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – sponsor’s residence status – genuine spousal relationship – financial aspects – nature of the household – social aspects – nature of the commitment – Schedule 3 criteria – compelling reasons for waiver – long-term relationship – substantial delay of the review process – health implications for the applicant – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5F, 65
Migration Regulations 1994 (Cth), r 1.15A; Schedule 2, cls 820.211, 8250.221; Schedule 3, Criterion 3001
CASES
Babicci v MIMIA (2005) 141 FCR 285
He v MIBP [2017] FCAFC 206
MZYPZ v MIAC [2012] FCA 478
Waensila v MIBP [2016] FCAFC 32
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.
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 applicant a Partner (Temporary) (Class UK) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 30 September 2016 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.
The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl 820.211 because the delegate was not satisfied the applicant and sponsor were in a spouse relationship within the meaning of that term in s5F of the Act. The delegate was also not satisfied the applicant met the Schedule 3 requirements or that there were compelling reasons for not applying those requirements in this case.
Before the Tribunal, Departmental records indicated that the sponsor as at 20 April 2021 was the holder of a Class TY Subclass 444 Special Category visa.
On 20 April 2021 the Tribunal wrote to the applicant to put him on notice of the issue that this information indicates the sponsor is not an Australian permanent…

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 SHAHIN (Migration)

Details

AGLC: SHAHIN (Migration) [2021] AATA 2611
Case: [2021] AATA 2611
Decision Date: 4 June 2021

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered an application for a Partner (Temporary) (Class UK) visa, Subclass 820 (Partner), made by a Bangladeshi national sponsored by Ms Norleen Hemaloto, a New Zealand citizen. The applicant had a history of unsuccessful visa applications and lodged the current application in 2016. The delegate refused the application, finding that the applicant and sponsor were not in a genuine spousal relationship and that the applicant did not meet certain criteria, with no compelling reasons for a waiver of Schedule 3 criteria.

The Tribunal was required to determine whether the applicant and sponsor were in a genuine and continuing spousal relationship, and whether there were compelling reasons to waive the Schedule 3 criteria, particularly in light of new information regarding the sponsor's residence status. The applicant had provided extensive documentation to support the genuineness of the relationship, including financial and social aspects, as well as evidence of a long-term commitment. The Tribunal also had to consider the implications of the sponsor holding a Special Category visa, which is not a permanent visa, and the applicant's subsequent application for a Resident Return visa.

The Tribunal noted that the delegate's refusal was based on a lack of satisfaction regarding the genuineness of the relationship and the Schedule 3 criteria. However, the Tribunal received information that the sponsor held a Special Category visa, which meant she was not an Australian permanent resident at the time of the decision. This information was communicated to the applicant, who responded by providing evidence of the sponsor's application for a Resident Return visa. Given the evolving circumstances and the need to consider the remaining criteria for the Subclass 820 visa, the Tribunal concluded that the matter should be remitted for reconsideration.

The Tribunal remitted the application for the visa to the Minister to consider the remaining criteria for a Subclass 820 visa.

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 applicant is a 47 year old Bangladeshi national. He first arrived in Australia in July 2005, as the dependent on his then partner’s student visa. He was granted a further student visa in 2007 and a Skilled (Provisional- dependent) visa on 8 July 2009, which was valid to 8 January 2011. Following this, he made several other visa applications which were not successful. He lodged the present application on 30 September 2016, sponsored by Ms Norleen Hemaloto. Ms Hemaloto is a 46 year old New Zealand citizen. At the time of application she was an Australian permanent resident. She has parents, two sisters and one brother in Australia and a sister in New Zealand. The visa applicant has a mother, one brother and one sister in Bangladesh and one sister in Australia. The visa applicant was previously married to [Ms A] in 2004, and they divorced in October 2012. The applicant and sponsor claim to have met in January 2012 at the home of the sponsor’s uncle. They married on 7 July 2014. Before the Department the applicant submitted various documents in support of the application. On 22 December 2016, in response to an invitation to address the Schedule 3 and/or compelling reasons issue arising in the application, the applicant’s representative made submissions that the parties were in a long term relationship and provided further evidence including statements of the relationship by the applicant and sponsor, photographs, marriage certificate, applicant’s bank statements and joint account bank statements, car insurance, QBE and NRMA insurance in joint names, evidence of money transfers made by the sponsor to Bangladesh, various correspondence addressed to the applicant and sponsor. A report from a psychologist, Cathy Egan dated 8 January 2015 relating to the applicant’s mental health and various other medical records were also provided. The delegate refused the application on 8 February 2018, on the basis of not being satisfied that the applicant and sponsor were in a genuine spouse relationship and also that he did not meet criteria 3001 and there were no compelling reasons for not applying the Schedule 3 criteria. Evidence before the Tribunal Information before the Tribunal obtained from Department records indicated that the sponsor was the holder of a Class TY (Subclass 444) Special Category visa which is not a permanent visa. The Tribunal wrote to the applicant on 20 April 2021 to inform him of this information obtained by the Tribunal, its relevance to the issues under consideration in the review and invite him to comment or respond. The Tribunal explained that if the information was relied on, the Tribunal would find that the applicant is not the spouse of a person who is an Australian citizen, permanent resident or an eligible New Zealand citizen at the time of its decision. The applicant, through his representative, responded to the Tribunal’s invitation on 21 April 2021, submitting an application lodged by the sponsor for a Resident Return (subclass 155) visa on 21 April 2021.

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

Ratio Decidendi

Legal Principle Established

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