Aryani (Migration) - [2022] AATA 4906

Aryani (Migration) [2022] AATA 4906 (30 November 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Ms Rani Aryani
VISA APPLICANT:  Mr Amirali Rashid
REPRESENTATIVE:  Mr Allan Hodder (MARN: 9250840)
CASE NUMBER:  2007450
DIBP REFERENCE(S):  BCC2019/152141
MEMBER:Maxina Martellotta
DATE:30 November 2022
PLACE OF DECISION:  Perth
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. (2) of Schedule 2 to the Regulations
·cl.309.221 of Schedule 2 to the Regulations

Statement made on 30 November 2022 at 8:43am
CATCHWORDS
MIGRATION –Partner (Provisional) (Class UF) visa – subclass 309 –sponsorship limitations – parties are validly married – applicants are currently in a genuine spousal relationship– evidence of long-term commitment to a spousal relationship – marriage is valid for the purposes of the Act– mutual commitment to a shared life to the exclusion of all others – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5F,65
Migration Regulations 1994, r 1.15A, Schedule 2, cls 309.2,309.221
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 19 February 2020 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 23 January 2019 on the basis of his relationship with his 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.309.21, because they were not satisfied that the visa applicant was the spouse of the review applicant as defined in section 5F of the Act.
The review applicant appeared before the Tribunal on 22 November 2022 to give evidence and present arguments. The Tribunal also received oral evidence by telephone from the visa applicant who is offshore, as well as oral evidence from a witness Ms Setiawati who appeared in person. The Tribunal also considered written submissions, statutory declarations, and other documents submitted to the Tribunal by the review applicant and the Department file. The review applicant provided the Tribunal with a copy of the delegate’s decision.
The review applicant was represented in relation to the review. The representative attended the Tribunal hearing.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
Whether the parties are in a spouse or…

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 Aryani (Migration)

Details

AGLC: Aryani (Migration) [2022] AATA 4906
Case: [2022] AATA 4906
Decision Date: 30 November 2022

CaseChat Overview and Summary

This matter concerned an application for a Partner (Provisional) (Class UF) visa, subclass 309. The applicant sought review of a decision concerning their eligibility for the visa, with the core dispute revolving around whether the parties were in a genuine and continuing spousal relationship as required by the Migration Regulations 1994. The decision under review was made by the Tribunal.

The legal issues before the Tribunal were whether the parties met the criteria for a spouse relationship at the time of the visa application and at the time of the decision, as defined by section 5F of the Migration Act 1958 and relevant regulations. Specifically, the Tribunal had to determine if the parties were validly married, if there was a mutual commitment to a shared life to the exclusion of all others, and if the relationship was genuine and continuing, considering financial aspects, the nature of the household, social aspects, and the nature of their commitment to each other.

The Tribunal reasoned that the parties were validly married in Indonesia, satisfying the requirement of being married under a marriage valid for the purposes of the Act. While acknowledging that the parties maintained separate bank accounts and did not jointly own significant assets, the Tribunal found that they provided each other with financial resources and pooled some resources in a joint account. The Tribunal also noted that the parties had lived together for periods, shared household responsibilities, and represented themselves as spouses to family and friends, who supported the genuineness of their relationship. Considering the duration of their relationship, their emotional support for each other, and their stated long-term plans, the Tribunal was satisfied that the parties had a mutual commitment to a shared life to the exclusion of all others and that their relationship was genuine and continuing.

Consequently, the Tribunal remitted the application for a Partner (Provisional) visa for reconsideration, directing that the visa applicant met the criteria for a Subclass 309 visa, specifically clauses 309.211(2) and 309.221 of Schedule 2 to the Regulations.

Orders

Orders of the court

Full text does not contain this section.

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 EVIDENCEWhether 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 visa 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 visa applicant claims to be the spouse of the review applicant who is an Australian permanent resident. ‘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 visa applicant’s and review applicant’s household as well as their commitment to each other, which is set out in r.1.15A(3), which is extracted in the attachment to this decision. Each of the specific matters contained in r.1.15A(3) are effectively questions that must be answered.[1]Background[1] See He v MIBP [2017] FCAFC 206. The review applicant was born in 1977 and is an Indonesian citizen and Australian permanent resident. She was previously married to an Australian citizen and has a dependent child (born 2008) from that relationship. The review applicant and her former husband are divorced. The visa applicant was born in 1972 and is a citizen of Pakistan. He and the review applicant claim that they first met through a social media platform in 2017 and were married in November 2018.Are the parties validly married? If the parties are validly married, they may meet the requirements of a married relationship but not a de facto relationship. At the hearing, the review applicant and visa applicant confirmed that they were married in November 2018. The marriage was conducted in Bandung Indonesia, in the presence of family and friends. The evidence is that the review applicant and visa applicant had a religious Muslim ceremony followed by a civil ceremony. The Tribunal was provided with a copy of the marriage certificate and marriage book, which was issued by the Republic of Indonesia. The Tribunal also notes from the delegate’s decision that the Department accepts that the review and visa applicant are validly married. On the evidence, the Tribunal is satisfied and finds that the parties were married to each other under a marriage that is valid pursuant to s.5F(2)(a) of the Act.Are the other requirements for a spouse relationship met?Financial aspects of the relationship

Decision

Reasons for decision

The review applicant and visa applicant each independently spoke of their future plans. They want to buy their own home and to have a child together, if so blessed. They both said that they will not stop trying if the visa application is refused. The experience of their separation has made them even more determined to be together in the long term.Are the criteria for a defacto relationship the time of application and are the criteria for a spousal relationship at the time of decision been met? In this matter, the tribunal makes the following findings of fact:Financial aspects of the relationshipThe review applicant and visa applicant:a) Do not jointly own any significant assets.b) Maintain separate bank accounts as well as a joint bank account.c) Do not service any joint liabilities.d) Provide each other with financial resources from time to time.e) Pool some of their resources in a joint account but this is limited to occasional deposits and withdrawals as and when required.Nature of the householdThe review applicant and visa applicant:f) Have lived together for periods of up to three months after their marriage, in the context of visits to each other’s country. In particular, during the three-month period that the visa applicant was in Australia, they lived together in the review applicant’s rental home where they operated as a single household.g) When living together, they shared all the amenities of the property and each contributed to the household tasks such as cleaning, cooking and shopping and childcare.h) They have otherwise, due to their circumstances and not by choice, resided in different countries.Social Aspects of the relationshipi) The review applicant and visa applicant have represented themselves as spouses to family, friends, and third parties.j) Family and friends have expressed the opinion that the visa applicant and review applicant are in a genuine spousal relationship, which is evidenced by statutory declarations, statements provided in support, and the oral evidence of a witness provided at the hearing.k) The review applicant and visa applicant have planned and undertaken social activities as members of a couple; to date, this has mainly occurred on those occasions when they are visiting each other.The nature of their commitment to each otherThe review applicant and visa applicant:l) Met online in November 2017.m) Physically met in February 2018 and were married in November 2018.n) Have provided companionship and emotional support to each other since recognising their personal relationship in early 2018 and, in particular, during periods of physical separation.o) Describe their relationship as long-term and see their future as living together, buying a home together, and having a child together.Other finds of factp) The review applicant and visa applicant are not related by family and are both over the age of 18 years. Having had the opportunity of observing and testing the review applicant and visa applicant’s evidence at hearing in addition to the oral evidence provided by the witness, taking into account the materials and documents before the tribunal as well as its findings of fact, the tribunal is satisfied that the evidence supports the conclusion that the review applicant and the visa applicant have a mutual commitment to a shared life to the exclusion of all others and that it is a genuine and continuing relationship. [2][2] While the prescribed matters must be considered in Partner visa cases, they are not criteria that must each be satisfied - Li v MIAC [2007] FMCA 454 at [73]. The Court stated the Tribunal decision would have involved jurisdictional error ‘if the Tribunal had taken the view that, to meet the criteria, the applicant must have pooled her financial affairs with the sponsor’s…’. Decision upheld on appeal in Li V MIAC [2007] FCA 1098.

Ratio Decidendi

Legal Principle Established

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. (2) of Schedule 2 to the Regulations·cl.309.221 of Schedule 2 to the RegulationsMaxina MartellottaMemberAttachment - 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).