Balasooriya Appuhamilage (Migration)

[2020] AATA 3344

Balasooriya Appuhamilage (Migration) [2020] AATA 3344 (11 August 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Sanduni Hanseni Perera Balasooriya Appuhamilage

CASE NUMBER:  1913826

HOME AFFAIRS REFERENCE(S):          BCC2019/174637

MEMBER:Cathrine Burnett-Wake

DATE:11 August 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Skilled (Provisional) (Class VC) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 485 visa:

·cl.485.311 of Schedule 2 to the Regulations.

Statement made on 11 August 2020 at 11:05am

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) – Subclass 485 (Temporary Graduate) – graduate work stream – member of family unit – spouse of primary applicant – validly married – development of relationship, shared life and future plans – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5F, 65
Migration Regulations 1994 (Cth), r 1.12(2)(a), Schedule 2, cl 485.311

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 23 May 2019 to refuse to grant the applicant a Skilled (Provisional) (Class VC) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 22 January 2019. Visa Class VC contains Subclass 485. (For visa applications made before 1 July 2013, there is also a Subclass 487, however that subclass is not relevant to the present matter.) The criteria for the grant of a Subclass 485 visa are set out in Part 485 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.

3. The delegate refused to grant the visa on the basis the applicant did not meet cl.485.311 of Schedule 2 to the Regulations because the delegate was not satisfied that the applicant was a member of the family unit and the spouse of the primary applicant, Mr Widanalage Dilshamal Ashain De Silva.

4. The applicant appeared before the Tribunal on 5 August 2020 to give evidence and present arguments. The Tribunal also received oral evidence from Mr De Silva.

5. The applicant was represented in relation to the review by her registered migration agent. The representative attended the Tribunal hearing.

6. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is whether the applicant is the spouse of Mr De Silva and therefore a member of his family unit for the purposes of satisfying cl.485.311.

8. Relevantly, r.1.12(2)(a) prescribes that a spouse or de facto partner of the family head is a member of the family unit.

9. ‘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 the circumstances of the relationship.

   Are the parties validly married: s.5F(2)(a)?

10. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. On the evidence, the parties were married to each other under a marriage that is valid for the purposes of the Act as required by s.5F(2)(a).

    Are the other requirements for a spouse relationship met: s.5F(2)(b)-(d) ‘mutual commitment to shared life to the exclusion of others; genuine and continuing relationship; and live together / not separately and apart on a permanent basis’?

11. The Tribunal notes that it has before it a significant amount of evidence relating to the spousal relationship between the applicant and Mr De Silva that was not available to the Department when it made its decision. Furthermore, the Tribunal had the benefit of being able to take evidence from both the applicant and Mr De Silva about the formation of their relationship, and how it has developed to the relationship it is today. Including discussing the financial aspects of the relationship, the nature of the household, the social aspects of the relationship and the nature of the commitment to each other.

12. The Tribunal heard from both the applicant and Mr De Silva’s separately. Their evidence was consistent and can be summarised as follows:

    ·The couple met in Sri Lanka in January 2016. Mr De Silva had travelled from Australia to visit his parents in the Seychelles where they were living at the time. He was on summer break from his Civil Engineering studies that he was undertaking in Australia. After leaving the Seychelles, he made a stopover in Sri Lanka, his home country, on route to Australia. It was during this stop over that he met the applicant. They met at a social gathering. Mr De Silva attended the social gathering with his sister and cousin. It was a planned dinner and movie with some friends. The applicant attended with her brother. It turned out that Mr De Silva’s cousin was a long-term friend of the applicant’s brother. And it was through this social gathering they first met.

    ·Both the applicant and Mr De Silva spoke about how they ‘hit it off instantly’ and they were attracted to each other and could not stop talking, including talking through the movie they were meant to be watching on their initial meeting. They also described how they texted and called constantly over the next few days before Mr De Silva departed for Australia.

    ·Both the applicant and Mr De Silva spoke about how their relationship progressed over the next two years. The applicant was studying law in Sri Lanka whilst the applicant was studying Civil Engineering in Australia. Although they were separated during this time, Mr De Silva made multiple trips back to Sri Lanka to see the applicant and they remained in constant contact. Mr De Silva also purchased the applicant multiple smart phones, upgrading each year ensuring they could maintain contact with the latest technology.

    ·At the completion of their respective studies and after having been in a long-distance relationship for approximately two years they decided to marry, with the intention for the applicant to join Mr De Silva in Australia after the wedding. They chose the date of their wedding, 26 January 2018, as it was the same date the applicant’s parents were married, so was significant to them.

    ·The couple decided Australia was where they would like to establish their futures. Their plan was to apply for the Graduate 485 visa which Mr De Silva was eligible for, having successfully completed his engineering qualification. Both explained that they hoped to be eligible for residency and to settle in Australia.

    ·In mid-2018, the applicant travelled to Australia on a tourist visa with the plan to then apply for the 485. Upon arrival in Australia, the applicant commenced living with Mr De Silva and his sister.

    ·Since arriving in Australia, the applicant has consistently resided with Mr De Silva. They have lived in 3 separate properties in Australia, sharing with Mr De Silva’s sister.

    ·The applicant is supported financially by Mr De Silva. He has worked full time, whilst the applicant has undertaken several subjects through Victoria University for her legal qualifications to be recognised in Australia. The applicant has also undertaken the Practical Legal Training course and is due to be admitted as a Solicitor in August 2020. Mr De Silva supported the applicant throughout her periods of study.

    ·As Mr De Silva works full time, the applicant tends to do most of the household chores. Cooking, cleaning and general day to day upkeep of the home.

    ·The applicant and Mr De Silva have travelled to various destinations around Australia. Including Queensland, Sydney, Adelaide and many regional areas of Victoria. They have also travelled overseas together, including visiting Mr De Silva’s parents in the Seychelles and the applicant’s family in Sri Lanka.

    ·Mr De Silva’s main hobby is photography. Each weekend (when not restricted due to the pandemic) they like to take day trips to various national parks and waterfalls. The Grampians is their favourite destination to go on a weekend to take photos.

    ·When at home, the couple like to watch Netflix and other streaming services. They also like to take walks down on the Geelong foreshore and like to exercise together.

    ·Due to the pandemic, Mr De Silva’s work has not been consistent, as such, the couple have been relying on financial assistance to meet the short fall from Mr De Silva’s sister whom they live with, as well as Mr De Silva’s parents.

    ·Both the applicant and Mr De Silva spoke at length about their mutual love, commitment and their future aspirations as a couple, including starting a family once in their thirties and the desire for their futures to be in Australia, together.

13. The claims made by the applicant and Mr De Silva at hearing are supported by documentary evidence. The Tribunal has before it is supporting statutory declarations from friends and family which attest that the couple are in a committed, genuine and continuing relationship. The Tribunal also has numerous photos of the couple, supporting the claims about the trips they have made interstate and internationally, and their weekend photography trips to Victorian regional areas. The verbal evidence taken from both the applicant and Mr De Silva was also sufficient to satisfy the Tribunal that the couple have a mutual committed to a shared life as a married couple to the exclusion of all others and that the relationship between them is genuine and continuing. Their evidence was consistent with each other and aligned with the supporting evidence provided. Furthermore, the applicant has submitted enough supporting evidence to satisfy the Tribunal that she and Mr De Silva live together and have done so since her arrival in Australia. This evidence includes tenancy agreements, utility bills and other official personal correspondence addressed to each individually (and together) at the same residential address.

14. The applicant and Mr De Silva presented as a united couple that was in step and the supporting evidence, including the narrative regarding how the relationship developed over a 2-year period prior to marriage and their shared life as a couple since marriage has led the Tribunal to be satisfied that the applicant and Mr De Silva meet the requirements in s.5F(2)(b)-(d).

15. The Tribunal therefore finds that the applicant satisfies cl.485.311 and is the spouse of Mr De Silva, as defined in s.5F of the Act, and is therefore a member of Mr De Silva’s family unit.

16. Given the findings above, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria.

17. The Tribunal remits the application for a Skilled (Provisional) (Class VC) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 485 visa:

    ·cl.485.311 of Schedule 2 to the Regulations.

    Cathrine Burnett-Wake
    Member