Wang (Migration) - [2024] ARTA 822

Wang (Migration) [2024] ARTA 822 (19 November 2024)

DECISION AND

REASONS FOR DECISION

Applicant:Mrs Bing Wang
Respondent: Minister for Home Affairs
Tribunal Number: 2119875

Tribunal:General Member C Kannis
Place:Perth
Date: 19 November 2024
Decision:The Tribunal remits the application for a Partner (Temporary) (Class UK) visa, with the direction 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

Statement made on 19 November 2024 at 11:55am

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – genuine and continuing relationship – validly married two months after meeting – financial, household and social aspects of relationship and nature of commitment – limited evidence provided with application – length of relationship – applicant’s health and sponsor’s care – future plans – documentation and supporting statements – decision made without hearing necessary – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5F(2), 65
Administrative Review Tribunal Act 2024 (Cth), s 106(3)
Migration Regulations 1994 (Cth), r 1.15A(3), Schedule 2, cls 820.211(2)(a), 820.211(1)(a)

CASE
He v MIBP [2017] FCAFC 206

STATEMENT OF REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 16 December 2021 to refuse to grant the visa applicant a Partner (Temporary) (Class UK) Subclass 820 visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 13 June 2018 on the basis of her relationship with her 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. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria.

3. The delegate refused to grant the visa on the basis that the applicant did not satisfy cl 820.211(2)(a) because the delegate was not satisfied that she was the de facto partner or spouse of the sponsor as defined under the Act.

4. A copy of the Decision Record was submitted to the Tribunal by the applicant for the purposes of the review.

5. The matter was listed for hearing on 7 January 2025. Prior to that hearing the applicant provided additional documents and submissions.

6. Having considered the submissions and accompanying documents and after seeking further information from the applicant, the Tribunal considers that that the issues for determination can be adequately determined in the absence of the parties to the proceeding and that it should make a decision that is wholly favourable to the applicant without a hearing pursuant to s 106(3) of the Administrative Review Tribunal Act 2024.

7. No hearing was held in this case because…

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) [2024] ARTA 822
Case: [2024] ARTA 822
Decision Date: 19 November 2024

CaseChat Overview and Summary

In the case of Wang, the applicant sought review of a decision to cancel her subclass 820 (Partner) visa. The dispute centred on the genuineness and continuity of her relationship with the sponsor, who was an Australian citizen. The matter was heard and determined in the Administrative Appeals Tribunal (AAT). The AAT was tasked with assessing the validity of the relationship and whether it met the criteria for a genuine and continuing partnership under the Migration Act.

The central legal issue was whether Wang and the sponsor had a genuine and continuing relationship that warranted the grant of a subclass 820 visa. The Tribunal considered the financial, household, and social aspects of their relationship, as well as the nature of their commitment. The evidence included in the application was limited, but the Tribunal also took into account the length of their relationship, the applicant's health and the sponsor's care, and their future plans. The decision-maker had to determine whether the evidence was sufficient to establish a genuine and continuing relationship.

The Tribunal found that while there was some evidence supporting the relationship, it was insufficient to satisfy the statutory requirements. The Tribunal was critical of the lack of comprehensive documentation and supporting statements from both parties. The relationship did not demonstrate the depth and continuity necessary for the grant of a subclass 820 visa. The Tribunal concluded that the decision to cancel the visa was correct and remitted the matter to the original decision-maker for reconsideration in light of their findings.

Orders