Yeung (Migration) - [2020] AATA 4137

Yeung (Migration) [2020] AATA 4137 (19 August 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Ms Yuk Ha Yeung
Ms Sze Hang Suen
Mr Chi Hang Suen
CASE NUMBER:  1909614
DIBP REFERENCE(S):  BCC2016/2809853 BCC2017/4287183
MEMBER:Susan Trotter
DATE AND TIME OF
ORAL DECISION AND REASONS:         19 August 2020 at 1:57 pm (QLD time)
DATE OF WRITTEN RECORD:                2 September 2020
PLACE OF DECISION:  Brisbane
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) of Schedule 2 to the Regulations
·cl.820.221(1) of Schedule 2 to the Regulations
·r.2.03A.

Statement made on 02 September 2020 at 11:59am

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – Federal Circuit Court remittal – de facto partner or spouse – incorrect information in visa application and department interviews – meeting through introduction agency not disclosed – adverse information that applicant’s motivation was to obtain visa – financial, household and social aspects of relationship – nature of commitment – relationship less than 12 months when application made – compelling and compassionate circumstances for grant of visa – registered civil partnership – validly married after application made – members of family unit – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5CB(2), 5F(2)(a), 359AA, 375A
Migration Regulations 1994 (Cth), rr 1.09A(3), 1.15A(3), 2.03A, Schedule 2, cls 820.211(2)(a), 820.221(1), (2)(a), 820.321
Civil Partnerships Act (Qld) 2011, s 9
CASES
Bretag v MILGEA [1991] FCA 582
Garcevic v MIAC [2012] FMCA 931

APPLICATION FOR REVIEW

This is an application for review of decisions made by a delegate of the Minister for Immigration on 23 January 2017 to refuse to grant the visa applicants Partner (Temporary) (Class UK) Subclass 820 visas under the Migration Act 1958 (the Act).
At the hearing on 19 August 2020, the Tribunal made an oral decision. The following is the written reasons for that decision.
STATEMENT OF DECISION AND REASONS
The first‑named applicant (the applicant), a now 47-year-old citizen of Hong Kong. The second‑named and third-named applicants are the children of the applicant.
The applicants applied for the visa on 24 August 2016 on the basis of the applicant’s relationship with her sponsor, Mr Michael Oberhoff, an Australian citizen.
At the time of the visa application, 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 (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.820.221(2)(a) of Schedule 2 to the Regulations as required, because the delegate was not satisfied that the applicant was the spouse or de facto partner, as defined, of the sponsor. As…

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 Yeung (Migration)

Details

AGLC: Yeung (Migration) [2020] AATA 4137
Case: [2020] AATA 4137
Decision Date: 19 August 2020

CaseChat Overview and Summary

The matter before the Tribunal concerned an application for a Partner (Temporary) (Class UK) visa, Subclass 820. The applicant, a citizen of Hong Kong, applied for the visa on 24 August 2016, based on her relationship with the sponsor, an Australian citizen. The initial decision to refuse the visa was affirmed by the Tribunal, but the Federal Circuit Court subsequently remitted the matter back to the Tribunal due to a procedural error. The Tribunal was required to reconsider the application, taking into account evidence presented by the applicant, sponsor, and their representatives.

The central legal issues before the Tribunal were whether the applicant met the criteria for a de facto relationship at the time of the visa application, and whether she met the criteria for a spousal relationship at the time of the decision. Specifically, the Tribunal had to determine if the applicant and sponsor had been in a de facto relationship for at least 12 months prior to the application, and if not, whether compelling and compassionate circumstances existed to waive this requirement. Furthermore, the Tribunal needed to assess if the parties were validly married and met other spousal relationship requirements at the time of the decision.

The Tribunal's reasoning focused on the evidence presented regarding the nature and commitment of the relationship. While the applicant and sponsor first met through an introduction agency and the relationship was less than 12 months old at the time of the visa application, subsequent events, including a registered civil partnership and a valid marriage after the application was lodged, were considered. The Tribunal noted that the criteria for the visa involved assessing the de facto relationship at the time of application and the spousal relationship at the time of decision. The Tribunal ultimately made an oral decision to remit the matter for reconsideration, indicating that further assessment was required based on the evidence and legal criteria.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

It follows that the issues for the Tribunal to determine are:(a) Were the de facto criteria met at the time of the visa application? That is,(i)Were the requirements for a de facto relationship met? And, if so,(ii)Are the additional criteria for a de facto relationship met? That is,A. Were each of the applicant and the sponsor at least 18 years of age? And, if so,B. Had the applicant and the sponsor been in a de facto relationship for at least 12 months prior to the date of the visa application? And, if not,C. Are there compelling and compassionate circumstances for the grant of the visa or were there other circumstances existing such that the requirement to have been in a de facto relationship for at least 12 months prior to the date of the visa application does not apply?And, if so,(b) Do the requirements of cl.820.211(2) continue to be met at the time of decision, in particular relevant to this application, are the spouse criteria met at the time of decision? That is,(i)Are the applicant and sponsor validly married? And, if so,(ii)Are the other requirements for a spousal relationship met?And, if so,(c) Is the sponsor prohibited from being a sponsoring partner? And, if not,(d) Is the applicant sponsored as required? And, if so,(e) Did the applicant hold a substantive visa at the time of the visa application?CONSIDERATION OF CLAIMS AND EVIDENCE The applicant is a now 47-year-old citizen of Hong Kong. The sponsor is a now 61‑year‑old Australian citizen. The visa application of 24 August 2016 states that the applicant and the sponsor first met at Southport on 15 August 2015 and committed to a de facto relationship on 14 September 2015. Subsequent to the visa application, the parties were married on 14 October 2017 in Australia. Various documents (including identification documents, the parties’ Marriage Certificate and related documents, statements and statutory declarations of the applicant and the sponsor, statutory declarations of friends regarding the relationship as at the date of the visa application, individual and joint bank statements, travel documents, various photographs, lease agreements and evidence of residence) were provided by the applicant to the Department in support of the visa application and have been taken into account by the Tribunal. Further documents were provided to the Department following the visa application including as regards the relationship following the visa application, and in response to adverse information put to the applicants by the Department, including evidence of an introduction agency contract. Further documents have also been provided to the Tribunal including as follows: (a) Copy of current drivers’ licences of the applicant and sponsor, showing both residing at the same address (the Southport home);(b) Divorce Order dated 19 July 2011 for the applicant in relation to previous marriage;(c) Divorce Order dated 17 September 2011 for the sponsor in relation to previous marriage;(d) Documents, including bank statements, regarding the Yeung and Oberhoff Trust;(e) Joint bank account statements of applicant and sponsor between October 2015 to date;(f) Various shopping receipts and photographs of presents for each other;(g) Prouds The Jewellers receipt dated 11 May 2016 for a 9 carat, 2 stone ring and accompanying photograph;(h) Photographs of:(i)honeymoon in Vietnam, including applicant and sponsor together and in company with family and friends;(ii)wedding day, including applicant and sponsor together and in company with family and friends/guests;(iii)various occasions in September, October, November and December 2015 and January, February, March, April and May 2016 – including the applicant and the sponsor together and in company with family and friends at the Brisbane Airport, the Gold Coast, the Sunshine Coast, Sydney, at Christmas at a friend’s home, at a football match with the applicant’s son; Gold Coast, at a friend’s wedding, in Hong Kong, in China, celebrating the sponsor’s birthday, moving house together, in engagement photographs and with family and friends’ at dinners and get-togethers;(iv)various occasions in February, March, May, June, July, September and October 2017 and January, April, May, June, September, November 2018 – including the applicant and the sponsor together and in company with family and friends on multiple occasions including on a Whitsunday sailing trip with three other couples, with friends at Coffs Harbour, on a second joint trip to Hong Kong, on a trip to Macau, Korea, renovating the applicant’s business premises together, at family dinners at home, on a trip to Coolangatta, in Vietnam, in China, at home, at a friend’s wedding and at a café in Mudgeeraba;(v)various occasions in January, April, June, July, August, September, October, November, December 2019 and January 2020 – including the applicant and the sponsor together and in company with family and friends on multiple occasions including in China, at the sponsor’s 60th birthday celebrations, at a local festival, at the Brisbane Airport, at a Broadbeach restaurant and bar, at a Southport dinner, at the Bundall markets, at Coolangatta, at home, at the applicant’s daughter’s graduation ceremony (including together in official graduation photos with family), at Christmas and New Year family dinners and at New Year and Chinese New Year celebrations;(i) Civil Partnership Certificate dated 10 June 2016;(j) Marriage Certificate dated 14 October 2017;(k) Various documents re applicant’s business, Mandy’s Bubble Tea;(l) RACQ car insurance policies in the name of the sponsor from September 2016 to date with the applicant named as the most frequent driver of the sponsor’s car, a Toyota RAV4;(m) Registration certificate and registration renewal notice in 2019 in the joint names of the applicant and sponsor for an Isuzu motor vehicle;(n) Letter dated 1 September 2016 from Resident Managers of a property at Southport confirming the sponsor’s residence at a unit in the property together with the applicant between September 2015 and March 2016;(o) General tenancy agreement in the joint names of the applicant and sponsor for the period 1 April 2016 to 31 March 2017 for premises located at Ashmore, Queensland;(p) General tenancy agreement in the joint names of the applicant and sponsor for the period 16 November 2018 to 17 November 2019 for the Southport home; (q) Real Estate Tenant Payment History in the joint names of the applicant, the sponsor and the applicant’s son and daughter for the Southport home from 16 November 2018 to 11 August 2020;(r) Registration Confirmation Statement in joint names of the applicant and the sponsor for the purchase of a unit at Southport (the Southport unit) registered on 5 December 2019;(s) Rates and other notices in joint names of the applicant and the sponsor for the Southport unit and associated documents in relation to the joint purchase of that property in November 2019;(t) Cover-More Travel Insurance policies in joint names of the applicant and the sponsor;(u) Various joint travel documents including various accommodation receipts in joint names, joint itineraries, and boarding passes showing adjoining airline seats in the names of the applicant and the sponsor for various trips;(v) Statutory declaration of Tatiana Kaukova dated 3 February 2020 declaring as to her knowledge of the applicant and the sponsor as being in a genuine relationship, including details of the basis of that declaration;(w) Sample text messages between the applicant and sponsor in 2015, 2016, 2017, 2018, 2019 and 2020;

Decision

Reasons for decision

At the hearing on 19 August 2020, the Tribunal made an oral decision. The following is the written reasons for that decision.STATEMENT OF DECISION AND REASONS The first‑named applicant (the applicant), a now 47-year-old citizen of Hong Kong. The second‑named and third-named applicants are the children of the applicant. The applicants applied for the visa on 24 August 2016 on the basis of the applicant’s relationship with her sponsor, Mr Michael Oberhoff, an Australian citizen. At the time of the visa application, 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 (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.820.221(2)(a) of Schedule 2 to the Regulations as required, because the delegate was not satisfied that the applicant was the spouse or de facto partner, as defined, of the sponsor. As regards the second-named and third-named applicants, the delegate was not satisfied that they were each a dependant or a member of the family unit of a person who satisfied the primary criteria and was the holder of a Subclass 820 visa for cl.820.321 to be met as required. The applicants lodged an application with the Tribunal on 26 January 2017. On 8 June 2018, the Tribunal (differently constituted) affirmed the decision under review. On 12 April 2019, the Federal Circuit Court remitted the matter to the Tribunal (by consent) on the basis that the Tribunal had failed to disclose the existence of a s.375A certificate dated 16 November 2017 to the applicants. The applicants appeared before the Tribunal on 19 August 2020 by video conference to give evidence and present arguments. The Tribunal heard evidence from each of the applicants, and also from the sponsor. The applicants were represented in relation to the review by their registered migration agent. For the following reasons, the Tribunal delivered an oral decision on 19 August 2020 remitting the matter for reconsideration.ISSUES There is a two-stage process for partner visas. The applicant must hold a provisional visa in order to be granted a permanent visa. The grant of the provisional visa enables an applicant to remain in Australia on a temporary basis. The grant of a permanent visa may subsequently be considered, and would generally depend on whether the relationship has continued for a period of at least two years. The Partner (Temporary) (Class UK) visa class contains one visa subclass: Subclass 820 (Partner). The criteria for a Subclass 820 visa are set out in Part 820 of Schedule 2 to the Regulations and include cl.820.211 and cl.820.221. The criteria for a Subclass 820 visa are set out in Part 820 of Schedule 2 to the Migration Regulations 1994. Clauses 820.211(2)(a) and 820.221(1) require that at the time the visa application was made, and at the time of decision, the applicant is the spouse or de facto partner of an Australian citizen, Australian permanent resident or an eligible New Zealand citizen and that the sponsor was not prohibited from being a sponsoring partner under cl.820.211(2B). In the present case, the applicant claims to have been the de facto partner of the sponsor at the time of the visa application and to be the spouse of the sponsor at the time of decision.

Ratio Decidendi

Legal Principle Established

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