Taylor (Migration) - [2024] AATA 945

Taylor (Migration) [2024] AATA 945 (6 March 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Ms Jessica Anne Taylor
VISA APPLICANT:  Mr Mahesh Saini
REPRESENTATIVE:  Ms Carina Ford
CASE NUMBER:  2317740
DIBP REFERENCE(S):  BCC2022/2062904
MEMBER:Cheryl Cartwright
DATE:6 March 2024
PLACE OF DECISION:  Melbourne

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 309.211(2) of Schedule 2 to the Regulations
·cl 309.221 of Schedule 2 to the Regulations

Statement made on 06 March 2024 at 7:01pm
CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – genuine and continuing relationship – visa history including overstay, previous applications, withdrawal of previous sponsorship and claim of family violence – possibility that current relationship contrived – previous application with sponsor invalid and applicant departed Australia – validly married – financial, household and social aspects of relationship and nature of commitment – length of relationship – applicant living in home country but remains named on lease – sponsor’s physical and mental health conditions, termination of pregnancy and travel to applicant’s home country – supporting statements – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5F(2), 65, 360(2)(a), 375A
Migration Regulations 1994 (Cth), r 1.15A(3), Schedule 2, cls 309.211(2), 309.221
CASES
He v MIBP [2017] FCAFC 206
Jayasinghe v MIMA [2006] FCA 1700
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 on 13 October 2023 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 7 June 2022 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 309.211(2) because there was insufficient evidence to demonstrate that the visa applicant is the spouse of the review applicant as defined under s 5F of the Act.
On 2 November 2023 the Tribunal received an application from the parties for a review of the decision.
Upon reviewing submissions as well as the further evidence that was received on 5 March 2023, the Tribunal considered that, based on the material before it, a hearing was not required and that the review should be decided in the review applicant’s favour pursuant to s 360(2)(a). The Tribunal cancelled…

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 Taylor (Migration)

Details

AGLC: Taylor (Migration) [2024] AATA 945
Case: [2024] AATA 945
Decision Date: 6 March 2024

CaseChat Overview and Summary

This matter concerned an appeal by a visa applicant against the refusal of a Partner (Provisional) (Class UF) visa, Subclass 309. The Administrative Appeals Tribunal was required to determine whether the visa applicant and the review applicant, who is an Australian citizen, were in a genuine and continuing spousal or de facto relationship at the time of the visa application and at the time of the Tribunal's decision. The Tribunal also considered the visa applicant's extensive visa history, including previous refusals, overstays, and a prior invalid application with the current sponsor.

The primary legal issue before the Tribunal was whether the relationship between the visa applicant and the review applicant met the criteria for a genuine and continuing spousal or de facto relationship as required by the Migration Regulations 1994, specifically clauses 309.211(2) and 309.221. This involved assessing various aspects of their relationship, including financial, household, and social elements, as well as the nature of their commitment to each other. The Tribunal was also tasked with considering evidence of events subsequent to the visa application, as such evidence could logically demonstrate the existence or non-existence of facts relevant to the determination of the relationship's genuineness.

The Tribunal reasoned that evidence of events occurring after the visa application date could be relevant to establishing the state of the relationship at the time of application, citing principles from *Jayasinghe v MIMA* [2006] FCA 1700 and *Minister for Immigration and Ethnic Affairs v Pochi* (1980) 4 ALD 139. In this instance, the Tribunal found it appropriate to make findings regarding both the time of application criterion (cl 309.211(2)) and the time of decision criterion (cl 309.221). The Tribunal ultimately concluded that the application should be remitted for reconsideration.

The Tribunal remitted the application for a Partner (Provisional) (Class UF) visa for reconsideration, directing that the visa applicant met the criteria under cl 309.211(2) and cl 309.221 of Schedule 2 to the Regulations. The Minister was to consider the remaining criteria for the Subclass 309 visa.

Orders

Orders of the court

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Background

Background to the litigation

In the circumstances of this case, the Tribunal considers that it is appropriate to make findings about cl 309.221 (a time of decision criterion) as well.Background The visa applicant first arrived in Australia on 6 December 2007 as the holder of a higher education sector visa (subclass 573) which ceased on 15 March 2010. On 19 April 2010 he was granted a bridging visa (WE) for the purpose of applying for a substantive visa in Australia. This visa ceased on 27 April 2010. On 27 April 2010 the visa applicant lodged a partner visa (subclass 820/801) with his now ex-spouse and this was refused on 21 September 2011. An appeal of the refusal decision was affirmed by the Migration Review Tribunal on 21 May 2013 and the visa applicant lodged a request for Ministerial Intervention on 16 May 2013. On 25 November 2016 the outcome of the Ministerial Intervention was that he was granted a visitor visa (subclass 600) which ceased on 25 May 2017 and this was granted so that the visa applicant could lodge a partner visa application. On 24 May 2017 the visa applicant lodged an application for a visitor visa (subclass 600) and was granted a further stay until 22 June 2017. On 19 June 2017 he lodged an application for a visitor visa (subclass 600) in order to stay until 20 March 2018 and this application was refused on 21 June 2017. On 18 July 2017 he applied for a review with the Administrative Appeals Tribunal but had not met the required timeframe. On 14 September 2017 he unsuccessfully appealed to the Federal Court. On 16 November 2021 the visa applicant applied for a partner visa (subclass 820/801) with his current sponsor, the review applicant; however, the application did not meet the schedule 1 requirement and the application was invalidated on 17 November 2021. The visa applicant departed Australia on 8 May 2022 and applied for a partner visa (subclass 309/100) with his current sponsor. The application was refused on 13 October 2023 and is now the subject of this review by the Tribunal. In a joint statement dated 29 February 2024, the parties claim to have met on 19 July 2015, both being married at the time to other people. As they had met through mutual connections, they continued to see each other at events. They eventually left their respective partners; it’s claimed that the review applicant’s partner was abusive and controlling. The parties moved to a shared house in June 2017 and in December 2018 moved to a rental property on their own. The sponsor suffers a number of health issues, including post traumatic stress disorder and cystic fibrosis.Whether the parties are in a spouse or de facto relationship Clause 309.211(2) requires that, at the time the visa application was made, the visa applicant is the spouse or de facto partner of an Australian citizen or Australian permanent resident or an eligible New Zealand citizen. With limited exceptions that only apply in relation to a decision to grant or not grant a Subclass 309 visa made on or after 20 August 2022, the visa applicant must continue to be the spouse or de facto partner at the time of the Tribunal’s decision: cl 309.221. In the present case the visa applicant claims to be the spouse of the review applicant who is an Australian citizen. A copy of her passport is on file.

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 issue in the present case is whether the visa applicant and the review applicant are spouses for the purposes of the Act. As Middleton J stated in Jayasinghe v MIMA [2006] FCA 1700 at [35]:Evidence of events subsequent to the visa application is relevant if it ‘tends logically to show the existence or non-existence of facts relevant to the issue to be determined’: see Minister for Immigration and Ethnic Affairs v Pochi (1980) 4 ALD 139 at 160 per Deane J. The Tribunal must consider all relevant evidence, which may include evidence of events subsequent to the date of application insofar as it assists in the task of determining whether the appellant and the sponsor were in a marriage relationship at the time of the application. The question of whether particular evidence is relevant and the weight it is to be given is clearly a matter for the Tribunal. In deciding this matter, the Tribunal has also had regard to evidence of events subsequent to the date of the visa application and the date of the delegate’s decision. In the circumstances of this case, the Tribunal considers that it is appropriate to make findings about cl 309.221 (a time of decision criterion) as well.Background The visa applicant first arrived in Australia on 6 December 2007 as the holder of a higher education sector visa (subclass 573) which ceased on 15 March 2010. On 19 April 2010 he was granted a bridging visa (WE) for the purpose of applying for a substantive visa in Australia. This visa ceased on 27 April 2010. On 27 April 2010 the visa applicant lodged a partner visa (subclass 820/801) with his now ex-spouse and this was refused on 21 September 2011. An appeal of the refusal decision was affirmed by the Migration Review Tribunal on 21 May 2013 and the visa applicant lodged a request for Ministerial Intervention on 16 May 2013. On 25 November 2016 the outcome of the Ministerial Intervention was that he was granted a visitor visa (subclass 600) which ceased on 25 May 2017 and this was granted so that the visa applicant could lodge a partner visa application. On 24 May 2017 the visa applicant lodged an application for a visitor visa (subclass 600) and was granted a further stay until 22 June 2017. On 19 June 2017 he lodged an application for a visitor visa (subclass 600) in order to stay until 20 March 2018 and this application was refused on 21 June 2017. On 18 July 2017 he applied for a review with the Administrative Appeals Tribunal but had not met the required timeframe. On 14 September 2017 he unsuccessfully appealed to the Federal Court. On 16 November 2021 the visa applicant applied for a partner visa (subclass 820/801) with his current sponsor, the review applicant; however, the application did not meet the schedule 1 requirement and the application was invalidated on 17 November 2021. The visa applicant departed Australia on 8 May 2022 and applied for a partner visa (subclass 309/100) with his current sponsor. The application was refused on 13 October 2023 and is now the subject of this review by the Tribunal.

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 309 visa.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 309.211(2) of Schedule 2 to the Regulations·cl 309.221 of Schedule 2 to the RegulationsCheryl CartwrightMemberATTACHMENT - Extract from Migration Regulations 19941.15ASpouse(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

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