TRAN (MIGRATION) - [2024] ARTA 224

TRAN (MIGRATION) [2024] ARTA 224 (13 NOVEMBER 2024)
DECISION AND
REASONS FOR DECISION
Applicant:Mr Minh Tam Chuong Tran
Tribunal number:  2200353
Respondent:  Minister for Home Affairs
Tribunal:General Member, B Maiden
Date:13 November 2024
Place:Melbourne
Decision:The Tribunal sets aside the decision under review and remits the application for a Partner (Temporary) (Class UK) visa for reconsideration, in accordance with the order 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(1)(a) of Schedule 2 to the Regulations; and
·reg 2.03A.

Statement made on 13 November 2024 at 5:00pm
CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – not in de facto relationship for 12 months before application made – passage of time and relationship now registered – limited evidence of joint finances – consistent evidence of household and social aspects of relationship and nature of commitment – supporting statements and photos – future plans – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5CB(2), 65
Migration Regulations 1994 (Cth), rr 1.09A, 2.03A(3), Schedule 2, cls 820.211(2)(a), 820.221(1)(a)
CASES
He v MIBP [2017] FCAFC 206
Jayasinghe v MIMA [2006] FCA 1700
Statement of 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, a 28-year-old Vietnamese national applied for the visa on 28 June 2019 on the basis of his relationship with his 28-year-old Australian citizen 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.
The delegate refused to grant the visa because the delegate was not satisfied that the parties had been in a de facto relationship for 12 months or more prior to the visa application lodgement on 29 June 2019. The delegate found that there was no compelling reason to waive the requirement, and that none of the exceptions in reg 2.03A(3) applied. Accordingly, the delegate found that the parties had not been in a de facto relationship for 12 months at the time of application and did not meet reg 2.03A or cl 820.211(2) of Schedule 2 to the Regulations.
The applicant appeared before the Tribunal on 29 October 2024 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.
The applicant was represented in relation to the review. Section 348A(1) of the Act states that the “Minister is taken to be a non-participating party to a proceeding for review of a reviewable…

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: TRAN (MIGRATION) [2024] ARTA 224
Case: [2024] ARTA 224
Decision Date: 13 November 2024

CaseChat Overview and Summary

The case involves an applicant seeking a Partner (Temporary) (Class UK) visa under subclass 820, contesting the decision to refuse their visa application on the grounds that they were not in a de facto relationship with the sponsor for the required 12 months prior to the application. The matter was heard by the Tribunal, which ultimately decided to remit the application for reconsideration by the Minister. The Tribunal's decision was based on its analysis of the evidence presented, which included aspects of the couple's financial, household, and social life, as well as their mutual commitment and future plans. Despite limited evidence of joint financial arrangements, the Tribunal found consistent evidence of shared living arrangements, social activities, and a genuine commitment between the parties. This evidence, along with subsequent events that indicated the continuation and strengthening of their relationship, led the Tribunal to conclude that the application should be remitted for reconsideration.

The primary legal issue before the Tribunal was whether the applicant and the sponsor were in a de facto relationship at the time of the visa application and whether they had been in such a relationship for the requisite 12-month period. This determination hinged on the interpretation and application of the criteria for a de facto relationship as set out in the Migration Act and Regulations. The Tribunal had to assess all relevant evidence, including that which pertained to events after the visa application, to ascertain the existence of a de facto relationship at the time of the application. The Tribunal found that while the evidence of joint financial arrangements was limited, the overall consistency in other areas such as living arrangements, social activities, and mutual commitment provided sufficient basis for the relationship to be considered genuine and ongoing.

In reaching its decision, the Tribunal applied the relevant statutory and regulatory criteria to the evidence presented. It concluded that the evidence, particularly regarding the social and household aspects of the relationship, indicated that the parties were indeed in a de facto relationship. The Tribunal also noted that the subsequent events, which showed the couple's continued commitment and plans for the future, supported the existence of a genuine relationship at the time of the application. Given these findings, the Tribunal determined that the matter should be remitted to the Minister for further consideration, taking into account the additional criteria specified in the Regulations. The Tribunal's decision emphasised the importance of considering all relevant evidence and the need for a holistic approach in assessing de facto relationships for visa purposes.

The final orders of the Tribunal were to remit the application for a Partner (Temporary) (Class UK) visa to the Minister, with the direction that the applicant meets the specified criteria for a Subclass 820 (Partner) visa. This includes meeting the relationship requirements under clause 820.211(2)(a) and clause 820.221(1)(a) of Schedule 2 to the Regulations, as well as the additional criteria in regulation 2.03A. The Tribunal's decision underscores the necessity for a comprehensive evaluation of all aspects of the relationship when determining the eligibility for a partner visa under Australian immigration law.

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 issue in the present case is whether the parties are in a de facto partnership, and whether the parties were in a de facto partnership for 12 months prior to the time of the visa lodgement on 28 June 2019. The Tribunal has also had regard to evidence of events subsequent to the date of the visa application.[2][2] Middleton J stated in Jayasinghe v MIMA [2006] FCA 1700 at [35]:This does not mean that evidence subsequent to the visa application does not need to be considered at all. 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.Are the parties in a spouse or de facto relationship? Clause 820.211(2)(a) requires that at the time the visa application was made, 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 de facto partner of the sponsor who is an Australian citizen. A copy of the sponsor’s Australian passport appears on the Department file. The applicant also submitted a copy of the sponsor’s Australian citizenship certificate.Are the parties in a de facto relationship? 'De facto partner' is defined in 5CB of the Act, which provides that a person is in a de facto relationship with another person to whom they are not married if they have a mutual commitment to a shared life to the exclusion of all others, the relationship is genuine and continuing, the couple live together, or do not live separately and apart on a permanent basis, and the couple are not related by family: s 5CB(2). In forming an opinion about whether the parties are in a de facto relationship consideration must be given 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 reg 1.09A(3) which is attached to this decision. Each of the specific matters contained in reg 1.09A(3) are effectively questions which must be answered: He v MIBP [2017] FCAFC 206.Are the additional criteria for a de facto relationship met? Persons claiming to be in a de facto relationship for a partner visa must also meet the additional criteria in reg 2.03A. 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 order 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(1)(a) of Schedule 2 to the Regulations; and·reg 2.03A. Date(s) of hearing: 29 October 2024Representative for the Applicant: Mr Hunter Te (MARN: 1804811)ATTACHMENT - 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

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