Turay (Migration) - [2024] AATA 206

Turay (Migration) [2024] AATA 206 (7 February 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Morris Turay
REPRESENTATIVE:  Ms Carina Ford (MARN: 9802862)
CASE NUMBER:  1822578
HOME AFFAIRS REFERENCE(S):          CLF2018/212203
OSF2012/096756
MEMBER:David Crawshay
DATE:7 February 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Partner (Migrant) (Class BC) visa.

Statement made on 07 February 2024 at 12:37pm

CATCHWORDS
MIGRATION – Partner (Migrant) (Class BC) visa – Subclass 100 (Partner) – genuine and continuing relationship before family violence – evidentiary requirements – joint transaction account – inconsistent shared residence – sponsor’s relationship with a third party – social media recognition of another relationship – mutual and exclusive commitment to a shared life – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5, 57, 65, 359
Migration Regulations 1994, Schedule 2, cl 100.221; r 1.15
CASES
Almomani v MIBP [2020] FCA 264
Cao v MIAC [2007] FMCA 225
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 Home Affairs on 30 July 2018 to refuse to grant the applicant a Partner (Migrant) (Class BC) visa under s.65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 20 November 2012 on the basis of his relationship with his sponsor. At that time, Class BC contained one subclass: Subclass 100 (Partner). The criteria for the grant of a Subclass 100 visa are set out in Part 100 of Schedule 2 to the Migration Regulations 1994 (Cth) (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 in this case refused to grant the visa on the basis that the applicant did not satisfy cl.100.221(4)(b) because the delegate was not satisfied that the applicant would have satisfied the requirements of cl.100.221(2) except that his relationship with the sponsor had ceased. In making this decision, the delegate did not go on to assess the applicant’s claims of family violence under cl.100.221(4)(c)(i).
It is not entirely clear whether the applicant in fact made a claim of family violence at the Department stage. While he alleged that he had endured “psychological trauma” and continued “to suffer mentally” in a letter of 22 December 2017 and had provided a psychologist’s report dated 21 May 2018 in which the author wrote that the applicant “alleged that he has suffered from psychological abuse/trauma perpetrated by his ex-wife”, he did not provide the required information to engage the provisions in Division 1.5 of the Regulations, including the documents under legislative instrument IMMI12/116 which was in operation at that time. In any case, however, the applicant has not provided any further information that would satisfy the evidentiary requirements for a claim of family violence and, as such,…

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 Turay (Migration)

Details

AGLC: Turay (Migration) [2024] AATA 206
Case: [2024] AATA 206
Decision Date: 7 February 2024

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered an application for a Partner (Migrant) (Class BC) visa, Subclass 100. The applicant claimed to be the spouse of the sponsor, an Australian citizen. The central dispute was whether the applicant and the sponsor were in a genuine and continuing married relationship at the time of the decision, as required by the Migration Act 1958 (Cth) and associated regulations.

The Tribunal was required to determine if the applicant met the criteria for a Partner visa, specifically whether they were in a married relationship with the sponsor. This involved assessing whether the parties were validly married, whether they had a mutual commitment to a shared life as a married couple to the exclusion of all others, whether their relationship was genuine and continuing, and whether they lived together or did not live separately and apart on a permanent basis, as stipulated by section 5F(2) of the Act. The Tribunal also had to consider all circumstances of the relationship, including financial and social aspects, the nature of their household, and their commitment to each other, as outlined in regulation 1.15A(3).

The Tribunal found that the parties were validly married, evidenced by a marriage certificate from the Republic of Guinea dated 31 August 2009. However, the Tribunal concluded that the applicant did not satisfy the criteria for the grant of the visa. This conclusion was reached after considering various aspects of the relationship, including evidence of a joint transaction account, inconsistent shared residence, the sponsor's relationship with a third party, and social media recognition of another relationship. These factors, when viewed in light of the requirements for a genuine and continuing married relationship, led the Tribunal to affirm the delegate's decision not to grant the visa.

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 decision under review should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in the present case is whether the applicant is the spouse of the sponsor at the time of this decision.Were the parties are in a spouse or de facto relationship? Clause 100.221 requires that the applicant meet one of five alternative requirements. These include cll.100.221(2) and (2A) which require, among other things, that at the time of this decision, the applicant is the spouse or de facto partner of the “sponsoring partner”. Unless the applicant was granted a Subclass 309 visa by Ministerial intervention, the “sponsoring partner” is the person who was specified as the applicant’s spouse or de facto partner or intended spouse or de facto partner in the related Subclass 309 application, being an Australian citizen, permanent resident or eligible New Zealand citizen. In the present case the applicant claims to be the spouse of the sponsor, a “sponsoring partner” within the meaning of that term. “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 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. Each of the specific matters contained in r.1.15A(3) is effectively a question which must be answered: He v MIBP [2017] FCAFC 206.Are the parties validly married? If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. The Tribunal has sighted a copy of a certificate for a marriage issued by the Republic of Guinea and dated 31 August 2009. It is satisfied that the document is genuine and that the parties were free to marry each other. On the evidence, the parties were married to each other under a marriage that is valid for the purposes of the Act as required by s.5F(2)(a).Non-disclosure certificate In a letter dated 5 August 2022, the Tribunal made the applicant aware of the existence of a non-disclosure certificate made under s.376 of the Act. After having received submissions from the applicant’s representative and having considered the content of the folios to which the certificate referred, which were movement records for Mr Ousman Sackor (whose relationship with the sponsor was already an issue in the review given findings made by the delegate), the Tribunal exercised its discretion to disclose the folios in full.

Decision

Reasons for decision

For the reasons above, the applicant does not satisfy the criteria for the grant of the visa.DECISION The Tribunal affirms the decision not to grant the applicant a Partner (Migrant) (Class BC) visa.David CrawshayMember

Ratio Decidendi

Legal Principle Established

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