Wang (Migration) - [2023] AATA 1355

Wang (Migration) [2023] AATA 1355 (8 May 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Wai Kiat Wang
CASE NUMBER:  1833741
HOME AFFAIRS REFERENCE(S):          BCC2014/2222549
MEMBER:Meredith Jackson
DATE:8 May 2023
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal remits the application for a Partner (Residence) (Class BS) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 801 (Partner) visa:
·cl 801.221 of Schedule 2 to the Regulations

Statement made on 08 May 2023 at 12:30pm

CATCHWORDS
MIGRATION – Partner (Residence) (Class BS) visa – Subclass 801 (Partner) – genuine and continuing partner relationship – property and car ownership – pooled financial resources – joint social activities – length of the relationship – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5, 65, 359
Migration Regulations 1994, Schedule 2, cl 801.211; r 1.15
CASES
Ally v MIAC [2008] FCAFC 49
Bretag v IRT [1991] FCA 582
He v MIBP [2017] FCAFC 206
Jayasinghe v MIMA [2006] FCA 1700
MIEA v Poche (1980) 4 ALD 139
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 16 November 2018 to refuse to grant the applicant a Partner (Residence) (Class BS) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant Mr Wai Kiat Wang applied for the visa on 5 September 2014 on the basis of his relationship with his sponsor. At that time, Class BS contained only one subclass: Subclass 801 (Partner). The criteria for the grant of this visa are set out in Part 801 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 refused to grant the visa on the basis that the applicant did not satisfy cl 801.221 of the Regulations. The delegate was not satisfied that the visa applicant at the time of decision was in a genuine and continuing relationship with the sponsor.
The applicant appeared before the Tribunal on 26 April 2023 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor, Ms Yan Ling Lin. The Tribunal hearing was conducted with the assistance of an interpreter in the Cantonese and English languages.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
BACKGROUND
The applicant is Wai Kiat Wang, a citizen of Malaysia born in 1987. In March 2013, Mr Wang was granted a Student visa to study in the vocational sector. On 5 September 2014, he lodged an application for a Partner visa on the grounds of being in a relationship with an Australian citizen, Yan Ling Lin, to whom he was married on 26 August 2014. Mr Wang was granted a Partner (Provisional)…

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 Wang (Migration)

Details

AGLC: Wang (Migration) [2023] AATA 1355
Case: [2023] AATA 1355
Decision Date: 8 May 2023

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered an application by Wai Kiat Wang, a Malaysian citizen, for a Partner (Residence) (Class BS) visa, subclass 801. Mr Wang had previously been granted a Partner (Provisional) visa based on his marriage to Australian citizen Yan Ling Lin. However, allegations were made that the relationship was contrived for immigration purposes, with Mr Wang allegedly paying Ms Lin $30,000 for sponsorship. The parties maintained their relationship was genuine.

The primary legal issue before the Tribunal was whether Mr Wang met the criteria for a Subclass 801 visa, specifically whether he was the spouse of the sponsoring partner, Yan Ling Lin. This required determining if their married relationship was valid, genuine, and continuing, and if they mutually committed to a shared life to the exclusion of all others, living together or not living separately and apart on a permanent basis, as defined by section 5F of the Migration Act 1958. The Tribunal was also required to consider all circumstances of the relationship, including financial, household, social aspects, and the nature of their commitment, as outlined in regulation 1.15A(3) of the Migration Regulations 1994.

The Tribunal found that the parties were validly married under Australian law, satisfying the requirement of section 5F(2)(a). However, the Tribunal did not make a final determination on the remaining criteria for the Subclass 801 visa. Instead, the Tribunal remitted the application for reconsideration by the Minister, directing that Mr Wang met the criteria under clause 801.221 of Schedule 2 to the Regulations.

Orders

Orders of the court

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Background

Background to the litigation

For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.BACKGROUND The applicant is Wai Kiat Wang, a citizen of Malaysia born in 1987. In March 2013, Mr Wang was granted a Student visa to study in the vocational sector. On 5 September 2014, he lodged an application for a Partner visa on the grounds of being in a relationship with an Australian citizen, Yan Ling Lin, to whom he was married on 26 August 2014. Mr Wang was granted a Partner (Provisional) visa on 4 November 2015. Information received by the Department in October 2015 alleged the relationship was contrived for immigration purposes and that Mr Wang had paid Ms Lin $30,000 for the sponsorship. The parties claim the relationship is genuine and the dob-in was contrived. The parties have a son born in 2017.ISSUES AND LAW The issue in the present case is whether the applicant is the spouse or de facto partner of the applicant.Whether the parties are in a spouse or de facto relationship Relevantly to this matter, cl 801.221(2)(c) requires that at the time of this decision, the applicant is the spouse of the ‘sponsoring partner’, who must be an Australian citizen or Australian permanent resident or an eligible New Zealand citizen who was specified in the related Subclass 820 visa application as the spouse or de facto partner of the applicant. In the present case the applicant claims to be the spouse of the sponsor who is an Australian citizen and was identified in the Subclass 820 visa application. On the evidence before it, the Tribunal is satisfied that the sponsor is the ‘sponsoring partner’ of the applicant. ‘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 visa applicant’s and sponsor’s household and their commitment to each other as set out in reg 1.15A(3), which is extracted in the attachment to this decision. Each of the specific matters contained in reg 1.15A(3) are effectively questions 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 applicant has provided a Queensland Marriage Certificate certifying the parties were married on 26 August 2014 at Southport. 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).Are the other requirements for a spouse relationship met?

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 801 visa.DECISION The Tribunal remits the application for a Partner (Residence) (Class BS) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 801 (Partner) visa:·cl 801.221 of Schedule 2 to the RegulationsMeredith JacksonMemberATTACHMENT - 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 (Residence) (Class BS) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 801 (Partner) visa:·cl 801.221 of Schedule 2 to the RegulationsMeredith JacksonMemberATTACHMENT - 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).