Xue (Migration)

[2018] AATA 2322

Xue (Migration) [2018] AATA 2322 (4 June 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr PING HUI Xue

CASE NUMBER:  1602447

DIBP REFERENCE(S):  CLF2014/8866

MEMBER:Justine Clarke

DATE:4 June 2018

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.820.221(3) of Schedule 2 to the Regulations

Statement made on 4 June 2018 at 12:22pm

CATCHWORDS
Migration – Partner (Residence) (Class BS) visa – Subclass 802 (Spouse) visa – Relationship ceased – Child exception – Custody orders – Shared parental rights and obligations’ – Decision under review remitted for reconsideration

LEGISLATION
Child Support (Assessment) Act 1989
Family Law Act 1975
Migration Act 1958, ss 5F, 65, 360, 375A, 376
Migration Regulations 1994, r 1.15A Schedule 2 cls 820.211, 820.221

CASES
Srour v MIMIA (2006) 155 FCR 441

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision of a delegate of the Minister for Immigration on 11 February 2016 to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant, Mr Ping Hui Xue, is a 29 year old national of China.

3. On 20 January 2014, the applicant applied for the visa on the basis of his relationship with his then sponsor. At the time of application, Class UK contained only one subclass: Subclass 820 (Partner (Temporary)). The criteria for the grant of this visa are set out in Part 820 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The primary criteria must be satisfied by at least one applicant.

4. The delegate was satisfied that, at the time of application, the applicant and his then sponsor were in a spousal relationship for the purposes of s.5F of the Act and accordingly the delegate was satisfied that the applicant met the time of application criteria in cl.820.211(2) of Schedule 2 to the Regulations. However, the delegate was not satisfied that the applicant met the time of decision criteria in cl.820.211(1), (2) or (3). The delegate refused to grant the visa on that basis.

5. The delegate noted that the sponsor had withdrawn her sponsorship on 22 August 2014 and accordingly the delegate found that, at the time of the primary decision, the applicant was no longer the spouse of the sponsor and that cl.820.221(1)(a) was not met.

6. The delegate found that there was no evidence that the sponsor was deceased and accordingly found that cl.820.221(2) was not met.

7. The delegate found that there was no evidence that the applicant had suffered family violence committed by the sponsoring partner and accordingly found that cl.820.221(3)(b)(i) was not met.

8. The delegate found that, at the time of the primary decision, there was no evidence that the applicant had ever had or had any current access to the claimed child of the relationship. (The Tribunal notes that the delegate did not have evidence of the birth certificate for the child of the relationship). 

9. On 26 February 2016, the applicant applied to the Tribunal for review of the primary decision. He has been represented in relation to the review by his registered migration agent.

10. On 23 April 2018, the Tribunal wrote to the applicant inviting him to attend a hearing on 22 May 2018. However, on 21 May 2018 the Tribunal wrote to the applicant to advise that due to circumstances beyond the Tribunal’s control, the Member was unable to conduct the hearing on 22 May 2018.

11. Upon subsequent reflection of the information and evidence before the Tribunal, the Tribunal decided, pursuant to s.360(2)(a) of the Act, that it should decide the review in the applicant’s favour on the basis of the material before it and that a hearing was not required.

12. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. The primary criteria include cl.820.221(1) of Schedule 2 to the Regulations which requires that, at the time of decision, the applicant is the spouse or de facto partner of the sponsoring partner unless the relationship has ceased and certain circumstances exist. These circumstances include that both the applicant and the sponsoring partner have an ongoing connection to a child: cl.820.221(3)(b)(ii). The applicant claims that the relationship has ceased and that the child exception applies.

14. The issue is whether the applicant meets cl.820.221(3)(a) and (b)(ii) of Schedule 2 to the Regulations.

    Section 376 certificate

15. The Department’s file contains a certificate made on 19 September 2017 pursuant to s.376 of the Act. The certificate applies to information which a departmental delegate considered was given to the Department in confidence and for which s.375A of the Act does not apply. The certificate gives the Tribunal discretion to disclose this information to the applicant. The Tribunal considers that the certificate was validly made.

16. The certificate relates to an email received by the Department on 18 July 2017, including an attached statutory declaration by the former sponsor. Essentially, the information outlines the former sponsor’s reasons for feeling that she was deceived by the applicant and that he had used her in order to obtain Australian permanent residency.

17. In conducting the review, the Tribunal is required by the Act to invite the applicant to comment on or respond to certain information which the Tribunal considers would be the reason, or a part of the reason, for affirming the decision under review.

18. Having carefully reflected on the matter, the Tribunal has formed the view that the information subject to the certificate is not relevant to this review as it would not be the reason, or part of the reason, for affirming the decision under review. The Tribunal holds the view that this information is not relevant. This is because the Tribunal’s task in this review is to assess whether the applicant meets certain criteria required for the grant of the Subclass 820 visa. Under cl.820.221(3)(a), all that is relevantly required is that there was a spousal relationship at some anterior point in time. The Tribunal considers that the applicant meets this requirement. The information sought to be protected from disclosure by the certificate does not negate the Tribunal’s finding that the applicant was in a spousal relationship at an anterior point in time.

19. In the circumstances, the Tribunal considered it unnecessary to provide the applicant with a copy of the s.376 certificate, an opportunity to comment on the validity of the certificate or an opportunity to seek a favourable exercise of the discretion in s.376(3)(b).

    Is cl.820.221(3)(a) established?

20. Clause 820.221(3)(a) requires that, at the time of this decision, the applicant would continue to meet the requirements of subclause 820.211(2), (3), (5) or (6) except that the relationship between the applicant and the sponsoring partner has ceased. In this case, the prior existence of a spouse or de facto partner relationship is a precondition to an assessment of the application of the child exception.

21. ‘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 parties’ household and their commitment to each other as set out in r.1.15A(3).

22. The Tribunal accepts that the applicant and the former sponsor were married on 24 November 2013 in Richmond, Victoria. A certified copy of the certificate of marriage is on the Department’s file. 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).

23. The Tribunal notes that evidence in support of the claims that the relationship was a genuine and continuing one was submitted to the Department. As noted earlier, the primary decision states that the delegate was satisfied that, at the time of application, the applicant and his then sponsor were in a spousal relationship.

24. In the Tribunal’s view, even some of the information outlined in the former sponsor’s statutory declaration made in July 2017 indicates that there was a partner relationship at an anterior point in time. For example: the parties had been living together; purchased property together and the relationship was known (and disapproved of) by the sponsor’s mother.

25. On the basis of the evidence before it, the Tribunal is satisfied that the relationship was a genuine and continuing one up until the time it came to an end in or around August 2014. The Tribunal finds that cl.820.221(3)(a) is established.

26. The next issue is whether the child exception applies.

    Is cl.820.221(3)(b)(ii) established?

27. Clause cl.820.221(3)(b)(ii) allows for the grant of the visa where the relationship between the applicant and the sponsoring partner has ceased, and there is a child in respect of whom the applicant has custody, access, or a residence or contact order made under the Family Law Act 1975. The sponsor must also have these rights, or a child maintenance obligation.

28. A person can have a right to custody as an incident of the statutory imposition of parental responsibility by operation of the Family Law Act in relation to a biological child. Similarly, a person can have a formal maintenance obligation to a biological child without a court order, by operation of the Child Support (Assessment) Act 1989 rather than the Family Law Act: Srour v MIMIA (2006) 155 FCR 441.

29. The Tribunal notes that the applicant is listed as the father on the registered birth certificate for the child of the relationship (Tribunal file f.23). Further, the interim order of the Federal Circuit Court of Australia of 9 August 2016 provided for the child of the relationship to live with his mother and spend specified time with his father, which was to be supervised. The Tribunal has reviewed the reports of supervised visits by the applicant with the child of the relationship. In addition, the Tribunal notes the final order of the Federal Circuit Court of Australia of 11 July 2017 which provides that each parent is to have ‘equal shared parental responsibility for the care, welfare and development of the child’, and which provides for the child of the relationship to remain living with his mother but to have specified contact and communication with the applicant.

30. Having reviewed all the evidence, the Tribunal is satisfied that the applicant and the former sponsor have a son together in respect of whom they have parental rights and obligations. The Tribunal finds that cl.820.221(3)(b)(ii) is met.

    CONCLUSION

31. 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 820 visa.

    DECISION

32. 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.820.221(3) of Schedule 2 to the Regulations

    Justine Clarke
    Member