Taylaran (Migration) - [2018] AATA 4779

Taylaran (Migration) [2018] AATA 4779 (8 October 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ms Darlyn Taylaran
CASE NUMBER:  1611079
DIBP REFERENCE(S):  BCC2015/1856532
MEMBER:Fiona Meagher
DATE:8 October 2018
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 (Temporary)) visa:
·cl.820.211(2)(a) of Schedule 2 to the Regulations;
·cl.820.211(2)(c) of Schedule 2 to the Regulations;
·cl.820.221(1) of Schedule 2 to the Regulations; and
·cl.820.221(4) of Schedule 2 to the Regulations;
Statement made on 08 October 2018 at 6:50pm

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Spouse) – spouse or de facto partner – marriage certificate – consistent evidence of financial structure – shared household responsibilities – no children – previous two approved sponsorships – compelling circumstances – sponsor’s mother’s medical condition – role of caring for sponsor’s mother – breakdown of earlier relationship – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 820.211, 820.221
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision of a delegate of the Minister for Immigration on 19 July 2016 to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s.65 of the Migration Act 1958 (the Act).
The applicant applied for the visa on 26 June 2015 on the basis of her relationship with her sponsor. At that time, Class UK contained only one subclass: Subclass 820 (Partner (Temporary)). The criteria for the grant of this visa are set out in Part 820 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.820.211 because the delegate was not satisfied that the applicant demonstrated that she was the spouse or de facto partner of the sponsor. Further the sponsor had already successfully sponsored two previous partners, and therefore, in accordance with regulation 1.20J the sponsor is prevented from being a sponsoring partner unless there are compelling reasons. In this case, the delegate found that there were no such compelling reasons.
The applicant appeared before the Tribunal on 22 September 2017 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Sterling, the visa applicant’s sponsor. The Tribunal hearing was conducted with the assistance of an interpreter in the Tagalog and English languages.
The applicant was represented in relation to the review by her registered migration agent. The representative attended the Tribunal hearing.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
Prior to the hearing the Tribunal received submissions from…

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 Taylaran (Migration)

Details

AGLC: Taylaran (Migration) [2018] AATA 4779
Case: [2018] AATA 4779
Decision Date: 8 October 2018

CaseChat Overview and Summary

This matter concerned an application for a Partner (Temporary) (Class UK) visa, Subclass 820 (Spouse), made by a 36-year-old applicant from the Philippines to her sponsor, a 74-year-old Australian citizen. The dispute arose from the assessment of the genuineness and continuing nature of the parties' spousal relationship, as required by the Migration Regulations 1994. The decision was made by Fiona Meagher, a Member of the Tribunal.

The primary legal issue before the Tribunal was whether the applicant and the sponsor were in a genuine and continuing spousal relationship, as defined by section 5F of the Migration Act 1958 and elaborated in regulation 1.15A of the Migration Regulations 1994. This required the Tribunal to consider all circumstances of the relationship, including financial aspects, the nature of the household, social aspects, and the nature of their commitment to each other. The Tribunal also had to determine if the parties were validly married for the purposes of the Act.

The Tribunal found the oral and documentary evidence provided by both the applicant and the sponsor to be honest, straightforward, spontaneous, consistent, and coherent, leading the Tribunal to consider them credible. The Tribunal considered the financial documentation, a statement from the sponsor's mother regarding the applicant's support, and numerous statutory declarations attesting to the genuine nature of the relationship. Despite the sponsor's previous two approved sponsorships, the Tribunal concluded that the current relationship met the criteria for a valid marriage and a genuine and continuing spousal relationship.

Consequently, the Tribunal remitted the application for reconsideration by the Minister, with a direction that the applicant met the specified criteria for a Subclass 820 visa, including clauses 820.211(2)(a), 820.211(2)(c), 820.221(1), and 820.221(4) of Schedule 2 to the Regulations.

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 Prior to the hearing the Tribunal received submissions from the Visa applicant’s migration agent. Further submissions were received after the hearing including financial documentation with respect to the parties, a statement from the sponsor’s mother, regarding the very significant support she receives from the applicant, and numerous statutory declarations attesting to the genuine nature of the relationship. These documents were in addition to the documents already before the Department, copies of which were also before the Tribunal. The applicant is a 36-year-old citizen from the Philippines. The sponsor is a 74 year old citizen of Australia. The applicant’s immediate family resides in the Philippines, and she also has some cousins in Bundaberg. The sponsor has been married twice before, on both occasions as a result of approved sponsorships one with respect to his former spouse, and one with respect to his former de facto partner.. The parties met through Filipino Cupid in about August 2014. They met in person in October 2014, when the sponsor visited the applicant and they holidayed together. The applicant arrived in Australia on a tourist Visa on 6 April 2015. The parties married on 20 June 2015, and made an application for a partner visa on 29 June 2015. In making it’s findings, the Tribunal has considered the documents contained in the Department and Tribunal files as well is the oral evidence provided by the parties at the hearing. The Tribunal has also taken into account the documents received from the applicant’s migration agent after the hearing. The Tribunal found the parties to be honest and straightforward in their evidence to the Tribunal. There oral evidence was spontaneous, consistent and coherent and the Tribunal considers them to be credible.Whether the parties are in a spouse or de facto relationship Clauses 820.211(2)(a) and 820.221 require that at the time the visa application was made, and at the time of this decision, the applicant is the spouse or de facto partner of an Australian citizen or Australian permanent resident or an eligible New Zealand citizen. In the present case the applicant claims to be the spouse of the sponsor who is an Australian citizen. ‘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 r.1.15A(3), which is extracted in the attachment to this decision.Are the parties validly married?

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 (Temporary)) visa:·cl.820.211(2)(a) of Schedule 2 to the Regulations;·cl.820.211(2)(c) of Schedule 2 to the Regulations;·cl.820.221(1) of Schedule 2 to the Regulations; and·cl.820.221(4) of Schedule 2 to the RegulationsFiona MeagherMemberATTACHMENT - Extract from Migration Regulations 19941.15A Spouse(1)For subsection 5F (3) of the Act, this regulation sets out arrangements for the purpose of determining whether 1 or more of the conditions in paragraphs 5F (2) (a), (b), (c) and (d) of the Act 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 married to 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 (Temporary)) visa:·cl.820.211(2)(a) of Schedule 2 to the Regulations;·cl.820.211(2)(c) of Schedule 2 to the Regulations;·cl.820.221(1) of Schedule 2 to the Regulations; and·cl.820.221(4) of Schedule 2 to the RegulationsFiona MeagherMemberATTACHMENT - Extract from Migration Regulations 19941.15A Spouse(1)For subsection 5F (3) of the Act, this regulation sets out arrangements for the purpose of determining whether 1 or more of the conditions in paragraphs 5F (2) (a), (b), (c) and (d) of the Act 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 married to 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).