Susi Gellatly (Migration) - [2023] AATA 3724

Susi Gellatly (Migration) [2023] AATA 3724 (25 October 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ms Widiyanti Susi Gellatly
CASE NUMBER:  1925651
HOME AFFAIRS REFERENCE(S):          BCC2018/907639
MEMBER:Tegen Downes
DATE:25 October 2023
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) of Schedule 2 to the Regulations
·cl 820. 221(1)(a) of Schedule 2 to the Regulations
·reg 2.03A

Statement made on 25 October 2023 at 8:51am
CATCHWORDS
MIGRATION –Partner (Temporary) (Class UK) visa – Subclass 820– validly married –– genuine and continuing relationship – parties see their relationship as a long-term commitment –social aspects of the relationship are consistent with a de facto and married relationship – couple had a mutual commitment to a shared life to the exclusion of all others – decision under review remitted
LEGISLATION
Migration Act 1958, ss, 5, 65
Migration Regulations 1994, r 2.03, Schedule 2, cls 820.211, 820.221
CASES
Ally v MIAC [2008] FCAFC 49
He v MIBP [2017] FCAFC 206
Jayasinghe v MIMA [2006] FCA 1700
MIEA v Poche (1980) 4 ALD 139
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 section 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 26 February 2018 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 delegate refused to grant the visa on the basis that the applicant did not satisfy cl 820.211(2)(a) of Schedule 2 to the Regulations because the delegate considered that the evidence and information provided was not sufficient to demonstrate that the applicant was the ‘de facto partner’ of the sponsor.
The applicant appeared before the Tribunal on 24 October 2023 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor and the sponsor’s brother.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
ISSUES AND LAW
This review application relates to an application for a provisional partner visa to enable the applicant to remain in Australia on a temporary basis.
The primary issues in this review application are whether, at the time the visa application was made, and at the time of this decision, the applicant was and is the ‘spouse’ or ‘de facto partner’ of an Australian permanent resident or Australian citizen, for the purpose of cl 820.211(2)(a) and cl 820.221 of Schedule 2 to the Regulations.
‘De facto partner' is defined in s 5CB of the Act, which provides that…

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 Susi Gellatly (Migration)

Details

AGLC: Susi Gellatly (Migration) [2023] AATA 3724
Case: [2023] AATA 3724
Decision Date: 25 October 2023

CaseChat Overview and Summary

This matter concerned an application for a Partner (Temporary) (Class UK) visa, Subclass 820, by an Indonesian woman sponsored by her partner, a former British citizen who is now an Australian permanent resident. The applicant and sponsor claimed to have been in a de facto relationship since May 2015, which evolved into a married relationship in 2021, and they had a child together. The review was before the Tribunal concerning the assessment of the relationship criteria for the visa.

The primary legal issue before the Tribunal was whether the applicant and her sponsor were in a genuine and continuing de facto relationship, and subsequently a married relationship, that satisfied the requirements of the *Migration Regulations 1994* (Cth) for the grant of a Subclass 820 visa. This involved considering the various aspects of their relationship, including financial, household, social, and commitment elements, as prescribed by regulation 1.09A. The Tribunal also had to determine if the applicant met the other criteria stipulated in clauses 820.211 and 820.221 of Schedule 2 to the Regulations.

The Tribunal found that the applicant and sponsor presented as credible witnesses, and their claims were supported by documentary evidence. Crucially, the Tribunal noted that significant evidence was available to it that had not been before the primary decision-maker, which, if considered, would likely have led to a different outcome. The Tribunal was satisfied that the couple had a mutual commitment to a shared life, their social interactions were consistent with a married relationship, and they viewed their relationship as a long-term commitment.

Consequently, the Tribunal remitted the application for the Partner (Temporary) (Class UK) visa, Subclass 820, with a direction that the applicant met the criteria specified in clause 820.211(2), clause 820.221(1)(a) of Schedule 2 to the Regulations, and regulation 2.03A.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

If the primary issues are resolved in the applicant’s favour, the secondary issues are whether, at the time of the visa application and at the time of this decision, the visa applicant satisfies the other requirements of cl 820.211 and cl 820.221 of Schedule 2 to the Regulations.CONSIDERATION OF CLAIMS AND EVIDENCEBackground The applicant is a 32-year-old woman from Indonesia. At the time of application, she claims to have been in a de facto relationship with her sponsor, a 32-year-old former British citizen who became an Australian permanent resident in 2016 and an Australian citizen in 2021. At the time of decision, the couple claims to be in a married relationship. The couple claim to have met in February 2015 in Hong Kong (where they were both living) through mutual friends. They claim to have commenced a relationship in May 2015 and moved in together in August 2015. They claim to have lived together in Hong Kong for approximately one year, before the sponsor returned to Australia to progress his citizenship. The couple claim to have reunited in Australia approximately three months later in November 2016 after the applicant obtained a tourist visa. They then lived together in Australia with the sponsor’s family and travelled with the sponsor’s family to the United Kingdom for a holiday and to visit the sponsor’s extended family. The applicant then returned to Indonesia in February 2017. The couple claim that the sponsor visited the applicant in Indonesia for approximately one month in June 2017. The applicant then returned to Australia in January 2018 on a further tourist visa, which remained current at the time she applied for the visa that is the subject of this review application. The couple have continued to live in Australia since this time, aside from a joint trip to Indonesia in June 2018. The couple had a child together in 2019, now four-years-old, and were married in 2021. The couple presented as credible witnesses at the hearing. Their evidence appeared to be genuine and sincere. There is no evidence or information before me that would tend to undermine the couple’s claims, or the reliability of the evidence provided. The couple’s claims are also supported by appropriate documentary evidence. Accordingly, having carefully considered all of the oral and documentary evidence provided, including that not expressly referred to in this decision, I wholly accept the couple’s claims as true. I am satisfied that this is a matter where the applicant submitted limited documentary evidence to the department. There is much evidence before the Tribunal that was unavailable to the primary decision maker which, if it had been available, would likely have resulted in a different outcome at first instance. Are the additional criteria for a de facto relationship met? Persons claiming to be in a de facto relationship for a partner visa must meet the additional criteria in reg 2.03A. First, both members of the couple must be at least 18 years old: reg 2.03A(2). In this case, at the time of application, the applicant and the sponsor were at least 18 years old.

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 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) of Schedule 2 to the Regulations·cl 820. 221(1)(a) of Schedule 2 to the Regulations·reg 2.03ATegen DownesMemberATTACHMENT - Extract from Migration Regulations 19941.09A De facto partner and de facto relationship(1)For subsection 5CB (3) of the Act, this regulation sets out arrangements for the purpose of determining whether 1 or more of the conditions in paragraphs 5CB (2) (a), (b), (c) and (d) of the Act exist.Note 1 See regulation 2.03A for the prescribed criteria applicable to de facto partners.Note 2 The effect of subsection 5CB (1) of the Act is that a person is the de facto partner of another person (whether of the same sex or a different sex) if the person is in a de facto relationship with the other person.Subsection 5CB (2) sets out conditions about whether a de facto relationship exists, and subsection 5CB (3) permits the regulations to make arrangements in relation to the determination of whether 1 or more of those conditions exist.(2)If the Minister is considering an application for:(a)a Partner (Migrant) (Class BC) visa; or(b)a Partner (Provisional) (Class UF) visa; or(c)a Partner (Residence) (Class BS) visa; or(d)a Partner (Temporary) (Class UK) visa;the Minister must consider all of the circumstances of the relationship, including the matters set out in subregulation (3).(3)The matters for subregulation (2) are:(a)the financial aspects of the relationship, including:(i) any joint ownership of real estate or other major assets; and(ii) any joint liabilities; and(iii) the extent of any pooling of financial resources, especially in relation to major financial commitments; and(iv) whether one person in the relationship owes any legal obligation in respect of the other; and(v) the basis of any sharing of day to day household expenses; and(b)the nature of the household, including:(i) any joint responsibility for the care and support of children; and(ii) the living arrangements of the persons; and(iii) any sharing of the responsibility for housework; and(c)the social aspects of the relationship, including:(i) whether the persons represent themselves to other people as being in a de facto relationship with each other; and(ii) the opinion of the persons’ friends and acquaintances about the nature of the relationship; and(iii) any basis on which the persons plan and undertake joint social activities; and(d)the nature of the persons’ commitment to each other, including:(i) the duration of the relationship; and(ii) the length of time during which the persons have lived together; and(iii) the degree of companionship and emotional support that the persons draw from each other; and(iv) whether the persons see the relationship as a long term one.(4)If the Minister is considering an application for a visa of a class other than a class mentioned in subregulation (2), the Minister may consider any of the circumstances mentioned in subregulation (3).

Ratio Decidendi

Legal Principle Established

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) of Schedule 2 to the Regulations·cl 820. 221(1)(a) of Schedule 2 to the Regulations·reg 2.03ATegen DownesMemberATTACHMENT - Extract from Migration Regulations 19941.09A De facto partner and de facto relationship(1)For subsection 5CB (3) of the Act, this regulation sets out arrangements for the purpose of determining whether 1 or more of the conditions in paragraphs 5CB (2) (a), (b), (c) and (d) of the Act exist.Note 1 See regulation 2.03A for the prescribed criteria applicable to de facto partners.Note 2 The effect of subsection 5CB (1) of the Act is that a person is the de facto partner of another person (whether of the same sex or a different sex) if the person is in a de facto relationship with the other person.Subsection 5CB (2) sets out conditions about whether a de facto relationship exists, and subsection 5CB (3) permits the regulations to make arrangements in relation to the determination of whether 1 or more of those conditions exist.(2)If the Minister is considering an application for:(a)a Partner (Migrant) (Class BC) visa; or(b)a Partner (Provisional) (Class UF) visa; or(c)a Partner (Residence) (Class BS) visa; or(d)a Partner (Temporary) (Class UK) visa;the Minister must consider all of the circumstances of the relationship, including the matters set out in subregulation (3).(3)The matters for subregulation (2) are:(a)the financial aspects of the relationship, including:(i) any joint ownership of real estate or other major assets; and(ii) any joint liabilities; and(iii) the extent of any pooling of financial resources, especially in relation to major financial commitments; and(iv) whether one person in the relationship owes any legal obligation in respect of the other; and(v) the basis of any sharing of day to day household expenses; and(b)the nature of the household, including:(i) any joint responsibility for the care and support of children; and(ii) the living arrangements of the persons; and(iii) any sharing of the responsibility for housework; and(c)the social aspects of the relationship, including:(i) whether the persons represent themselves to other people as being in a de facto relationship with each other; and(ii) the opinion of the persons’ friends and acquaintances about the nature of the relationship; and(iii) any basis on which the persons plan and undertake joint social activities; and(d)the nature of the persons’ commitment to each other, including:(i) the duration of the relationship; and(ii) the length of time during which the persons have lived together; and(iii) the degree of companionship and emotional support that the persons draw from each other; and(iv) whether the persons see the relationship as a long term one.(4)If the Minister is considering an application for a visa of a class other than a class mentioned in subregulation (2), the Minister may consider any of the circumstances mentioned in subregulation (3).