Amanamoi (Migration) - [2023] AATA 3867

Amanamoi (Migration) [2023] AATA 3867 (20 July 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Mr Titus Obura Amanamoi
VISA APPLICANT:  Mrs Sunday Luka Okieu Erenge
REPRESENTATIVE:  Ms Mary Hanna
CASE NUMBER:  1918547
DIBP REFERENCE(S):  BCC2018/470268
MEMBER:Edward Howard
DATE:20 July 2023
PLACE OF DECISION:  Brisbane
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(2) of Schedule 2 to the Regulations
·cl.309.221(1) of Schedule 2 to the Regulations

Statement made on 20 July 2023 at 9:14am

CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – genuine spousal relationship – financial aspects – nature of the household – social aspects – nature of the commitment – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5F, 65, 360
Migration Regulations 1994 (Cth), r 1.15A; Schedule 2, cls 309.211, 309.221
CASES
He v MIBP [2017] FCAFC 206
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 14 June 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 29 January 2018 on the basis of her relationship with her review applicant, 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.
In March 2023 the Tribunal undertook outreach to obtain updated information. As a result of this outreach the review applicant provided updated evidence and submissions which were received between April – July 2023.
In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the visa applicant on the basis of the material before it, pursuant to s 360(2)(a) of the Act.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
BACKGROUND
The visa applicant is Ms Sunday Luka Okeieu Erenge, aged 36 years, a citizen of South Sudan and the review applicant is Mr Titus Obura Amanamoi, aged 57 years, an Australian citizen. The review applicant was born in South Sudan and migrated to Australia in 2003.
The parties claim to have known each other since childhood but lost contact between 1999 and 2015. The parties began a long-distance romantic relationship in 2015 and met in person for 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 Amanamoi (Migration)

Details

AGLC: Amanamoi (Migration) [2023] AATA 3867
Case: [2023] AATA 3867
Decision Date: 20 July 2023

CaseChat Overview and Summary

This matter concerned an appeal by Mr Titus Obura Amanamoi, an Australian citizen, against a decision to refuse a Partner (Provisional) (Class UF) (Subclass 309) visa for his spouse, Ms Sunday Luka Okeieu Erenge, a citizen of South Sudan. The parties claimed to have known each other since childhood, re-established contact in 2015, and married by proxy in May 2017. Ms Erenge applied for the visa in January 2018, which was subsequently refused by the delegate. The Tribunal was considering the first stage of the offshore partner visa process.

The primary legal issue before the Tribunal was whether the parties satisfied the criteria under cl.309.211 and cl.309.221 of the Migration Regulations 1994, which require the applicant to be the spouse or de facto partner of an Australian citizen at the time of the visa application and at the time of the decision. The Tribunal was required to consider all relevant evidence, including events occurring after the visa application date, if such evidence logically demonstrated the existence or non-existence of the relationship at the relevant times.

The Tribunal reasoned that evidence of subsequent events could be taken into account to determine the nature of the relationship at the time of application, citing established case law. While the specific findings regarding the financial, household, social aspects, and nature of the commitment are not detailed in the provided text, the Tribunal concluded that the matter should be remitted for reconsideration.

Consequently, the Tribunal remitted the application for a Partner (Temporary) (Class UF) visa to the Minister, with a direction that the visa applicant meets the criteria specified in cl.309.211(2) and cl.309.221(1) of Schedule 2 to the Regulations.

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 visa applicant is Ms Sunday Luka Okeieu Erenge, aged 36 years, a citizen of South Sudan and the review applicant is Mr Titus Obura Amanamoi, aged 57 years, an Australian citizen. The review applicant was born in South Sudan and migrated to Australia in 2003. The parties claim to have known each other since childhood but lost contact between 1999 and 2015. The parties began a long-distance romantic relationship in 2015 and met in person for the first time again in April 2017 when the review applicant travelled to South Sudan. The parties were married by proxy on 6 May 2017 and a copy of the marriage certificate was provided. Neither party has claimed to have had any other previous relationship or children. The visa applicant applied for a Partner (Provisional) (Class UF) (Subclass 309) visa on 29 January 2018. This application was refused by the delegate on 14 June 2019. The visa applicant remains offshore living in South Sudan.ISSUES AND LAW There is a two-stage process for offshore Partner visas. A visa applicant must first hold a provisional visa, enabling them to remain in Australia on a temporary basis, prior to the grant of a permanent visa. The grant of a permanent visa would generally depend on whether the relationship has continued for a period of at least two years. In this matter, the Tribunal is considering the first, temporary stage. Where the Tribunal is considering a criterion that requires the definition of spouse or de facto partner to be met at the time of the visa application, the information supplied in relation to the reg 1.15A(3) matters may relate to circumstances after the time of application. In forming a view of the relationship at the time of application, the Tribunal must consider all relevant evidence, which may include evidence of events after the date of application insofar as it assists in the task of determining whether the visa applicant and the review applicant were in a partner relationship at the time of the application. Evidence of events after the visa application is relevant if it tends logically to show the existence or non-existence of facts relevant to the issue to be determined.[1] The issue in the present case is whether at the time of the visa application and the time of this decision, the parties satisfy the criteria under cl.309.211 and cl.309.221.Whether the parties are in a spouse or de facto relationship Clauses 309.211(2) and 309.221 require that at the time the visa application was made, and at the time of this decision, the applicant is the spouse or de facto partner of an Australian citizen or Australian permanent resident or an eligible New Zealand citizen. In the present case the applicant claims to be the spouse of the review applicant who is an Australian citizen.[1] Ally v MIAC [2008] FCAFC 49 at [32]–[35]; Jayasinghe v MIMA [2006] FCA 1700 at [35], citing MIEA v Poche (1980) 4 ALD 139 at [24] per Deane J which held that evidence of subsequent events may be taken into account if it ‘tends to logically show the existence or non-existence of’ the relationship at that particular time; and see also Bretag v IRT [1991] FCA 582 at [13]–[15].

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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 309 visa.DECISION The Tribunal remits the application for a Partner (Temporary) (Class UF) visa, with the direction that the visa applicant meets the following criteria for a subclass 309 (partner) visa:·cl 309.211(2) of Schedule 2 to the Regulations·cl 309.221(1) of Schedule 2 to the RegulationsEdward HowardMemberATTACHMENT - 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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