Wong (Migration)

[2020] AATA 335

Wong (Migration) [2020] AATA 335 (6 February 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Hoi Wai Wienna Wong

CASE NUMBER:  1808735

DIBP REFERENCE(S):  BCC2016/2986159

MEMBER:Nicholas McGowan

DATE:February 6, 2020

PLACE OF DECISION:  Melbourne

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 (Temporary)) visa:

·  cl.820.211(2) of Schedule 2 to the Regulations;

·  r.2.03A

CATCHWORDS

MIGRATION – Partner (Temporary) (Class UK) – Subclass 820 (Spouse) – de facto relationship – civil partnership certificate provided – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2 cl 820.211(2), r 2.03A

REVIEW

1. On 8 September 2016 the applicant applied for a Partner (Temporary) (Class UK) visa
under s.65 of the Migration Act 1958 (the Act).

2. On 15 March 2018 a delegate for the immigration minister refused to grant the visa.

3. The delegate refused to grant the applicant the temporary partner visa because the applicant failed to satisfy the requirement (at Regulation 2.03A).

4. Regulation 2.03A requires the applicant and her sponsor to have been in a de facto
relationship 12 months prior to their visa lodgement. That is, 12 months prior to 8 September 2016.

5. The delegate went on to considered the alternative to the criterion, and determined that none of the circumstances necessary to meet the alternatives to 2.03A(3), those contained in 2.03A(4) or 2.03A(5), were applicable in the applicant’s application.

6. The applicant appealed the Minister’s refusal decision to this independent tribunal for a
merits review on 29 March 2018.

EVIDENCE AND FINDINGS

7. In this case the applicant has (post the delegate’s refusal decision) provided this tribunal with a ‘civil partnership certificate’ (dated 18 January 2020) a copy of which has been affixed to this tribunal’s case file.

8. In light of the new evidence, this tribunal is satisfied that the requirements of Regulation
(2.03A) have now been met because the provision of the ‘relationship certificate’ means the
stipulations under 2.03A no longer prevent the applicant from meeting the criteria for the
grant of the visa, because it gives rise to Regulation 2.03A(5) - as the applicant’s
circumstances are now such that the parties’ de facto relationship has been recognised
under an Australian State law as prescribed in the Acts Interpretation (Registered
Relationship) Regulations 2008.

9. As this tribunal has found the applicant now satisfies Regulation 2.03A (5) for the purposes of Regulation 2.03A(3); and, the parties were both over 18 years of age at the time of application on 8 September 2016 ; the applicant has satisfied this tribunal she now meets
the requirements specified in Regulation 2.03A for the purposes of clause 820.211(2).

10. Further, this tribunal is satisfied, having considered the circumstances as set out under the Act and Regulations, that the applicant was at the time of the temporary partner visa
application, the de facto partner of her sponsor who is an Australian citizen (as
evidenced by a copy of his citizenship certificate at folio 32 of the immigration department’s file).

11. It follows that this tribunal is satisfied that at the time of application the applicant met the requirements of clause 820.221(2) for the purposes of her partner visa application.

12. Given the above, the applicant satisfies cl.820.211 at the time of application. It is therefore appropriate to remit the application for the visa to the Minister to consider the remaining criteria for a subclass 820 visa.