Truong (Migration) - [2023] AATA 1217

Truong (Migration) [2023] AATA 1217 (13 February 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Mr Dung Minh Truong
VISA APPLICANT:  Ms Thi Truc Nguyen
REPRESENTATIVE:  Mr Tam Nguyen (MARN: 0743595)
CASE NUMBER:  2016204
DIBP REFERENCE(S):  BCC2019/5091350
MEMBER:Edward Howard
DATE:13 February 2023
PLACE OF DECISION:  Brisbane
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 13 February 2023 at 10:51am

CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – genuine spousal relationship – financial aspects – nature of the household – social aspects – nature of the commitment – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5F, 65
Migration Regulations 1994 (Cth), r 1.15A; Schedule 2, cls 309.211, 309.221
CASES
He v MIBP [2017] FCAFC 206
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 Immigration on 8 October 2020 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 11 October 2019 on the basis of her relationship with her 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.
The review applicant appeared before the Tribunal on 16 December 2022 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant. The review applicant was represented in relation to the review.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
ISSUES AND LAW
There is a two-stage process for offshore Partner visas. A visa applicant must first hold a provisional visa, enabling them to remain in Australia on a temporary basis, prior to the grant of a permanent visa. The grant of a permanent visa would generally depend on whether the relationship has continued for a period of at least two years. In this matter, the Tribunal is considering the first, temporary stage.
Where the Tribunal is considering a criterion that requires the definition of spouse or de facto partner to be met at the time of the visa application, the information supplied in relation to the reg 1.15A(3) matters may relate to circumstances after the time…

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 Truong (Migration)

Details

AGLC: Truong (Migration) [2023] AATA 1217
Case: [2023] AATA 1217
Decision Date: 13 February 2023

CaseChat Overview and Summary

This matter concerned an application for a Partner (Provisional) (Class UF) visa, subclass 309. The applicant sought review of a decision made by the Administrative Appeals Tribunal. The primary dispute revolved around whether the applicant and their partner were in a genuine and continuing spousal relationship, as required by migration law.

The court was required to determine whether the Tribunal had erred in its assessment of the evidence concerning the genuineness of the spousal relationship. Specifically, the court needed to consider the Tribunal's findings in relation to the financial aspects, nature of the household, social aspects, and the nature of the commitment between the applicant and their partner, as outlined in the Migration Regulations 1994.

The court found that the Tribunal had not adequately considered all the relevant circumstances of the relationship. Regulation 1.15A of the Migration Regulations 1994 mandates that the Minister (and by extension, the Tribunal) must consider all circumstances, including financial, household, social aspects, and the nature of the commitment. The court determined that the Tribunal's decision did not reflect a comprehensive assessment of these factors, leading to an error in the decision-making process.

Consequently, the court remitted the application for the visa to the Minister for reconsideration. The court directed that the visa applicant be taken to meet certain criteria for a subclass 309 visa, with the Minister to consider the remaining criteria.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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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 (Temporary) (Class UF) visa, with the direction that the visa applicant meets the following criteria for a subclass 309 (partner) visa:·cl 309.211(2) of Schedule 2 to the Regulations·cl 309.221 of Schedule 2 to the RegulationsEdward HowardMemberAttachment - 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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