1908630 (Migration) - [2021] AATA 2627

1908630 (Migration) [2021] AATA 2627 (19 April 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1908630
MEMBER:David Barker
DATE:19 April 2021
PLACE OF DECISION: Sydney
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 19 April 2021 at 3:03pm
CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – companionship and emotional support to the sponsor – sponsor’s medical condition – parties are validly married – long-term commitment to a spousal relationship – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5CB, 5F, 65
Migration Regulations 1994, r 1.15; Schedule 2, cls 309.211, 309.221
CASES
He v MIBP [2017] FCAFC 206
Re MILGEA and Dhillon [1990] FCA 144
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 22 March 2019 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 1 June 2017 on the basis of her relationship with her sponsor, the review applicant. At that time, 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 on the basis that the visa applicant did not satisfy cl.309.211 because they were not satisfied on the evidence that the parties were in a genuine and continuing spousal relationship.
The review applicant (the sponsor) was scheduled to appeared before the Tribunal by video through MS Teams on 16 December 2020. Unfortunately, technological difficulties external to the Tribunal prevented the hearing proceeding on that date. The sponsor then appeared before the Tribunal in person on 26 March 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the mother and sister of the sponsor. Unfortunately, it was not possible to take evidence by phone from the visa applicant in Myanmar due to telecommunication difficulties. As a consequence, a further teleconference was set down for 16 April 2021, at which the Tribunal took oral evidence from the visa applicant and sponsor.
The review applicant was represented in relation to the review.
For the following reasons, the Tribunal has…

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.

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Details

Case: [2021] AATA 2627
Decision Date: 19 April 2021

CaseChat Overview and Summary

This matter concerned an application for a Partner (Provisional) (Class UF) visa (Subclass 309). The applicant, a national of Myanmar, sought to join her Australian permanent resident husband, the sponsor, who resides in Sydney. The sponsor has significant physical, mental, and neurological health conditions requiring substantial daily care and support. The Tribunal was tasked with reviewing the delegate's decision to refuse the visa, which was based on concerns about the genuineness and long-term nature of the spousal relationship.

The primary legal issue before the Tribunal was whether the applicant and sponsor were in a genuine spousal relationship at the time of the visa application and continued to be so at the time of the decision. This required an assessment of the relationship's nature, including its development, the parties' mutual commitment to a shared life, and the degree of companionship and emotional support exchanged, particularly in light of the sponsor's significant health challenges and the applicant's insight into his care needs. The Tribunal also considered the evidence presented regarding communication, financial aspects, household arrangements, and social presentation of the relationship.

The Tribunal applied the principles established in *Re MILGEA and Dhillon* [1990] FCA 144, which posits that the sole test for a genuine marriage is whether the parties have a mutual commitment to a shared life as husband and wife to the exclusion of others, irrespective of their initial motives. The Tribunal acknowledged the rapid development of the relationship from initial meeting to marriage, noting the delegate's concerns about the limited time spent together and the brevity of communication records. However, the Tribunal also recognised the sponsor's severe health conditions and the potential impact on the relationship's dynamics and the applicant's capacity to provide companionship and emotional support.

Ultimately, the Tribunal concluded that the matter should be remitted for reconsideration. The Tribunal directed that the visa applicant meets specific criteria for a Subclass 309 visa, namely cl.309.211 and cl.309.221 of Schedule 2 to the Regulations, indicating that further assessment of the remaining criteria by the Minister was appropriate.

Orders

Orders of the court

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Background

Background to the litigation

For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.BACKGROUND The applicant is a national of Myanmar, born in [year]. She is the eldest child in her family. She graduated from [University] in 2003. At the time of the application she was living with her parents and siblings. She declares that she has not had previous significant interpersonal relationships. The sponsor was born in Myanmar in [year]. He came to Australia in 2008 as a dependent on his mother’s [visa]. He holds a [permanent] visa and is a permanent resident. The sponsor resides with his parents and the family of his sister in Sydney. The sponsor has significant physical, mental and neurological health conditions that result in his dependency on the care and support of his parents, other family members and support services provided through the NDIS for a range of his activities of daily living (ADL). The sponsor previously, in October 2012, sponsored a woman for a Subclass 300 Prospective Marriage visa. However, this application was withdrawn in April 2014. The sponsor travelled to Myanmar with his parents between [date] November 2016 and [date] December 2016. His reported reason for this trip was to find a future wife and start a family. The parties are reported to have been introduced to each other by a friend of the sponsor’s cousin. They met for the first time in Myanmar at the home of the sponsor’s cousin on [date] November 2016. It is claimed the parties committed to a shared life together to the exclusion of all others on [date] November 2016. They married on [date] December 2016. The marriage was registered [two days later in] December 2016. The sponsor became unwell and was hospitalised following his return to Australia on [date] December 2016. The sponsor travelled to Myanmar with his mother on [date] February 2018 to spend time with the applicant. He returned to Australia on [date] March 2018. The sponsor’s health deteriorated further in mid-2018; he was subsequently diagnosed with a serious neurological disorder further to his pre-existing physical and mental health conditions. The medical evidence indicates that symptoms associated with the sponsor’s deteriorated health state in 2018 included: [details deleted]. The parties provided documents to the Department in support of the current application including but not limited to the following: documents regarding their identities and marital status, communication records, financial records, travel records, copies of personal correspondence and other electronic communication, the parties’ marriage certificate, statements by the sponsor and applicant, witness declarations and photographs. It is apparent from the delegate’s decision record, a copy of which the sponsor provided to the Tribunal, that the delegate was not satisfied with the evidence given by both parties in regard to their marital relationship. In summarising these concerns the delegate stated:While I find it not unusual for some relationships to develop rapidly, I find no detail on the evidence the applicant and sponsor provided that convinces me as to how such limited contact in time they spent together led to the decision to enter into a serious relationship with each other, or how their relationship developed to reach a decision to commit to marriage. I am not satisfied that the parties’ decision to marry reflects the level of consideration that is usual between two persons making a genuine lifelong commitment to each other. I note that the sponsor stated that it is bad luck according to Chinese traditions for him to marry in 2017 and while I respect the sponsor’s beliefs, I am not satisfied it was a key consideration of the parties to commit to marriage in 2016 given they could otherwise commit to marriage after 2017, if they so decide.The applicant and sponsor have provided evidence of contact during their times of separation. Logs of calls and emails between the applicant and the sponsor have been provided with this application however, while the core logs showed a high number of calls made, many of the calls were made in durations of a few seconds and therefore would not have given the call and the recipient of the calls any opportunity to hold a meaningful conversation, if the calls were at all successfully connected further, I find the emails to be consistently short, single session emails which do not exhibit interactive conversation or exchange of information which otherwise characterise emails between two parties in a genuine conversation as such, I give the emails in the core logs little weight.While I am satisfied that the applicant sponsor have legally married, there is little evidence to satisfy me that this relationship is seen as a longer term one by the applicant or sponsor the seemingly rapid development of the relationship from initial meeting to the marriage raises concerns and does not support their claims that they are in a genuine continuing spousal relationship.I have considered all the evidence and information that has been provided in support of the application including the matters prescribed under regulations 1.15A. I consider that it is not sufficient to demonstrate that the applicant is the spouse, as defined under5F of the act of a person who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen.

Evidence

Evidence Before The Court

Since his discharge from hospital, the sponsor has required 24-hour assistance and is reliant on assistance for nearly all activities of daily living. He was on [date] February 2020 approved for support through the NDIS and has a daily support worker for seven hours each day from Monday to Saturday. It is reported that this level of support is not sufficient to meet the sponsor’s care needs and that at other times, particularly overnight, he is reliant on care provided by his elderly parents or elder sister. It is reported his parents are in their [age range] and unable to provide the level of care required by the sponsor at times he cannot access care through the NDIS. It is reported that that the support he can access from his elder sister is limited due to her care responsibilities towards her own children and her employment commitments. CONSIDERATION OF CLAIMS AND EVIDENCE The issue in the present case is whether the visa and review applicants were in a genuine spousal relationship at the time of application and continue to be in a genuine spousal relationship at the time of this decision. The Tribunal has had regard to the documentary evidence that has been presented with the visa and review applications, which is contained in the Department and Tribunal files. The Tribunal has considered the parties’ oral evidence and that provided by the sister and mother of the sponsor. In Re MILGEA and Dhillon [1990] FCA 144, the Federal Court stated: people enter marriages with a variety of purposes and motives, hopes and anticipations, so that it is not possible to classify some purposes etc. as according to what may be described as 'community expectations'. It is not necessarily inconsistent with a genuine marriage relationship that it was entered into by one or both parties with a view to material benefit or advancement, as for example with the hope of becoming eligible to reside in a particular country. The true test, we would suggest the only test, is whether at the time at which the matter has to be decided it can be said that the parties have a mutual commitment to a shared life as husband and wife to the exclusion of others. An issue the Tribunal is mindful of in the particular circumstances of this case is the extent to which the sponsor’s physical, mental and neurological health conditions have impacted his capacity, both at the time of application and at the time of this decision, to enter into a committed relationship that has the mutuality as to commitment and other aspects such that it presents as a genuine relationship. With respect to the applicant, an issue the Tribunal is mindful of is whether she has sufficient insight into the sponsor’s care and support needs. The Tribunal is mindful of the need to consider whether there is a level of communication and transparency in the relationship that would usually be indicative of a genuine relationship and that any commitment made by the applicant to the relationship has been made knowingly and in a manner indicative of a committed life partner.

Decision

Reasons for decision

Given the findings above, the appropriate course is to remit the application for the primary visa applicant’s 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.David BarkerMemberATTACHMENT - 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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