1727299 (Migration) - [2019] AATA 3875

1727299 (Migration) [2019] AATA 3875 (22 March 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1727299
MEMBER:John Billings
DATE:22 March 2019
PLACE OF DECISION: Melbourne
DECISION:The Tribunal remits the application for a Partner (Provisional) (Class UF) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 309 (Partner (Provisional)) visa:
·cl.309.211 of Schedule 2 to the Regulations
·cl.309.221 of Schedule 2 to the Regulations

Statement made on 22 March 2019 at 3:32pm

CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – genuine spousal relationship – credible witnesses – general migration history – motivation for entering the relationship – timing of marriage – recognition of relationship – attendance at wedding – site visit and interviews – review applicant’s health – objection to marriage – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5F, 65
Migration Regulations 1994 (Cth), r 1.15A; Schedule 2, cls 309.211, 309.221
CASES
He v MIBP [2017] FCAFC 206
MIBP v Angkawijaya [2016] FCAFC 5
MIBP v Singh [2016] FCAFC 183
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

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 Immigration on 7 September 2017 to refuse to grant the visa applicant a Partner (Provisional) (Class UF) visa under s.65 of the Migration Act 1958 (the Act).
The [visa applicant] applied for the visa on 22 June 2015 on the basis of her relationship with her sponsor, the [review applicant] who is a [age] year old Australian citizen. At the time [the visa applicant] applied, Class UF contained only one subclass: Subclass 309 (Partner (Provisional). The criteria for the grant of this visa are set out in Part 309 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 because the delegate was not satisfied that [the visa applicant] was the spouse of [the review applicant]. Although the delegate referred at the end of the decision record to cl.309.223, it is clear that the delegate was not satisfied that [the visa applicant] met the requirements of cl.309.211 and cl.309.221. The Tribunal refers further to the delegate’s reasons for decision below. Among other things, the delegate took into account the outcome of a site visit at [the visa applicant]’s village in India in February 2017 when her neighbours and parents were interviewed, and an allegation made anonymously that the relationship was contrived.
[The review applicant] applied to the Tribunal for review on 6 November 2017. He provided a copy of the primary decision to the Tribunal.
[The…

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 1727299 (Migration)

Details

AGLC: 1727299 (Migration) [2019] AATA 3875
Case: [2019] AATA 3875
Decision Date: 22 March 2019

CaseChat Overview and Summary

This matter concerned an application for a Partner (Provisional) (Class UF) visa, subclass 309. The review applicant sought to challenge a decision that had raised concerns regarding the genuineness of the spousal relationship between the visa applicant and the review applicant. The Administrative Appeals Tribunal, constituted by Senior Member John Billings, was tasked with reconsidering the application.

The primary legal issue before the Tribunal was whether the visa applicant was and had at all material times been the spouse of the review applicant. This required the Tribunal to assess the evidence presented, including oral testimony from the applicants and their witnesses, in light of the criteria for a genuine and continuing spousal relationship as outlined in the Migration Regulations 1994.

The Tribunal found that the primary decision contained significant errors, including misstatements about a witness's attendance at the wedding and the availability of photographs at the visa applicant's parents' home. Furthermore, the Tribunal noted the absence of certain movement and financial records from the Department's file, despite references to them in departmental notes. Crucially, the Tribunal had the advantage of hearing and testing oral evidence, which led to a favourable assessment of the credibility of the parties and their witnesses. Despite some remaining concerns, the Tribunal concluded that the evidence generally supported the review applicant being in Australia at all material times and that the marriage was not arranged in a way that would negate its genuineness.

Consequently, the Tribunal remitted the application for a Partner (Provisional) (Class UF) visa for reconsideration by the Minister. The Tribunal directed that the visa applicant met the criteria specified in clauses 309.211 and 309.221 of Schedule 2 to the Migration Regulations 1994.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in the case is whether [the visa applicant] is and at all material times has been the spouse of [the review applicant]. For reasons that follow, the Tribunal is satisfied about that. In the primary decision the delegate raised a number of concerns about the case. The Tribunal has identified further matters of concern. Despite those concerns, the Tribunal has made a favourable assessment of the parties’ credibility, having had the advantage of receiving and testing oral evidence given by [the review applicant], [the visa applicant] and their witnesses. While the Tribunal is engaged in merits review, there are points about the primary decision to be noted. There are points about the contents of the Department’s file to be noted too. The decision record contains significant errors. One is the statement that [Mr C] did not attend [the visa applicant] and [the review applicant]’s wedding. The delegate attached particular importance to this because it had been said that [Mr C] “arranged” the marriage and that he sometimes financially supported [the visa applicant] and [the review applicant]. (The Tribunal will return to the issue whether the marriage was “arranged” and in what sense that was). In fact the marriage certificate records that [Mr C] was a witness to the marriage. In a statutory declaration that [the review applicant] made 18 June 2017 – prior to the making of primary decision – he specifically pointed out what the marriage certificate shows. Another error in the primary decision is the statement that at the time of the site visit in India there were “no photographs available” of [the visa applicant] and [the review applicant] at [the visa applicant]’s parents’ home. The Tribunal will expand on that point later in this section of its reasons. The Departments file contains notes[3] made in May 2016 to the effect that movement records showed that [the review applicant] was offshore at the time the parties claimed to have met and at the time of the marriage. The delegate did not refer to that information in the primary decision. The Tribunal is unable to determine whether the delegate had any regard to the information. There are no movement records on the Department’s file. The Tribunal has found no movement records for [the review applicant]. [The review applicant] gave evidence that he has never departed Australia. The evidence generally points to [the review applicant] being in Australia at all material times. [3] At folio 296a. There are notes from May 2016 that an officer looked at financial documents including [the visa applicant]’s NAB bank statement and credit card statement. The documents are not on file. [The visa applicant] confirmed in oral evidence that she did have a NAB account. There bank statements that are held on the Department’s file are for a joint ANZ bank account: see further below.

Decision

Reasons for decision

Given the Tribunal’s findings, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 309 visa.DECISION The Tribunal remits the application for a Partner (Provisional) (Class UF) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 309 (Partner (Provisional)) visa:·cl.309.211 of Schedule 2 to the Regulations·cl.309.221 of Schedule 2 to the Regulations John BillingsSenior MemberATTACHMENT - Extract from Migration Regulations 19941.15ASpouse(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

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