Chand (Migration)

[2022] AATA 4531

Chand (Migration) [2022] AATA 4531 (1 November 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Altashna Anileshni Chand

CASE NUMBER:  1833980

HOME AFFAIRS REFERENCE(S):          BCC2018/3330224

MEMBER:Ian Berry

DATE:1 November 2022

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal remits the application for a Skilled Regional Sponsored (Provisional) visa for reconsideration, with the direction that the applicant meets the following criteria for a 489 - Skilled - Regional (Provisional) visa:

· cl 489.311 of Schedule 2 to the Regulations

Statement made on 01 November 2022 at 2:39pm

CATCHWORDS 
MIGRATION – Skilled Regional Sponsored (Provisional) (Class SP) visa – Subclass 489 (Skilled – Regional (Provisional)) – member of the family unit – genuine spousal relationship – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5F, 65
Migration Regulations 1994 (Cth), rr 1.03, 1.12, 1.15A; Schedule 2, cl 489.311

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 (DOHA) to refuse to grant the applicant a Skilled Regional Sponsored (Provisional) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 3 September 2018. The delegate refused to grant the visa on 15 November 2018 on the basis that the applicant did not satisfy the requirements of cl 489.311 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). Clause 489.311 of Schedule 2 relevantly requires the applicant to be a member of the family unit of Mr Rajneel Pravinesh Ram at the time of decision. The delegate’s reasons were there was insufficient evidence provided to establish a relationship between Mr Ram and the applicant. Particularly, there is no evidence in relation to the social aspects of the relationship.

3. The applicant appeared before the Tribunal on 22 December 2021 and 21 October 2022 to give evidence and present arguments. The Tribunal received oral evidence from the applicant.  The Tribunal exercised its discretion to hold the hearing by telephone. During the COVID-19 pandemic, special circumstances exist for the telephone hearing. The Tribunal also considered the Tribunal’s objective of providing a review that is fair, just, economical and expedient. A hearing by telephone achieved this end.

4. The applicant was represented in relation to the review by her husband Mr R P Ram who appeared on her behalf pursuant to s.280 of the Act.

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

   Consideration of claims and evidence

6. The issue in this review is whether the applicant is a member of the family unit of Rajneel Pravinesh Ram and satisfies cl 489.311.

7. Section 5(1) of the Act provides that ‘member of the family unit’ of a person has the meaning given by the Migration Regulations 1994 (the Regulations). Regulation 1.03 provides ‘member of the family unit’ has the meaning set out in reg 1.12. The definition in reg 1.12 applies for the purposes of both the Act and the Regulations.

8. So far as is relevant, reg 1.12(2) provides that a person is a member of the family unit of another person (the family head) if the person is the spouse or de facto partner of the family head.

9. In this instance, the applicant is claiming to be the spouse of Rajneel Pravinesh Ram.

10. A person is a ‘spouse’ if they are in a ‘married relationship’ with the family head. ‘Spouse’ is defined by sec 5F of the Act, which provides that the couple must be married to each other in a marriage that is valid under the Migration Act; the couple must have a mutual commitment to a shared life as a married couple to the exclusion of all others; their relationship is genuine and continuing, and that the couple live together or do not live separately and apart on a permanent basis. The definition applies to same sex and different sex couples.

11. When considering whether the above requirements in sec 5F are satisfied and the applicant is the spouse of the family head, the Tribunal may consider any of the circumstances outlined in reg 1.15A of the Regulations. These circumstances are the financial aspects of the relationship, the nature of the household, the social aspects of the relationship, and the nature of the persons’ commitment to each other.

12. The information provided by the applicant in support of this review consists of the following:

    ·Statement of Mr Rajneel Ram.

    ·Letter of support dated 20 November 2018, from Mr Kamelsh Prasad. 

    ·Confirmation letter of support dated 20 November 2018, by Mr Ashneel Mishra confirming the validity of the marriage between the applicant and Mr Ram.

    ·Letter by Tamendra Narayan Sharma, dated 20 November 2018 certifying the marriage between Mr Ram and the applicant legally married on 14 February 2018.

    ·Letter of support by Arishma Roy dated 15 November 2018 a friend of the applicant.

    ·Letter of support from Sharol Sharma dated 5 November 2018.

    ·Statutory declaration of Mr Ram declared 3 December 2018.

    ·Statutory declaration of the applicant made 3 December 2018.

    ·Relationship statement by the applicant undated.

    ·Submission by the applicant about the application.

    ·Certificate of death of the applicant’s father dated 8 August 2018.

    ·Various payment slips of monies from Mr Ram to the applicant.

    ·Submission on the presence of married couple to the wider community.

    ·Statement of explanation by the applicant in relation to not providing information.

    ·Substantial number of photographs of the applicant, Mr Ram and others though not detailed.

    ·Wedding photographs of the couple.

    ·Wedding photographs of the couple and family members.

    ·Various documents of the applicant’s endearment to her husband.

    ·Various photographs the details of which have not been explained.

    ·More photographs with relatives.

    ·Correspondence between the applicant and the Tribunal concerning a request for priority processing.

    ·Employment letter of engagement of the applicant dated 15 January 2021.

    ·Various tenancy agreements.

    ·CBA bank statements of the couple.

    ·The applicant’s Form 80 – Personal Particulars for Assessment Including Character Assessment Dated 29 July 2022.

    ·Various documents under the prehearing submissions with further documents under the prehearing submissions.

    ·Statutory declaration of Mr Ram in relation to bank accounts held.

    ·Statutory declaration by Mr Daniel Shaw friend to Mr Ram and the applicant, made 6 October 2022.

    ·Statutory declaration of Kristy Collins friend to applicant and Mr Ram made 6 October 2022.

    ·Statement of the the applicant’s eldest and only sister Ms AA Chand dated 8 October 2022.

    ·Statement of Mr Ram’s brother Mr S Kumar dated 9 October 2022.

    ·Statement of Ms R Kumar concerning the couple, dated 9 October 2022.

    ·Statement of Ms Radhika Ram the eldest sister of Mr Ram dated 7 October 2022.

    ·Statement of W A D Sumudini providing information in relation to the couple, dated 9 October 2022.

13. Mr Ram and the applicant married in a religious ceremony in Fiji where they both once lived.  However a relationship formed between Mr Ram and the applicant through the use of the Internet where the applicant was living in Fiji and Mr Ram lived in Australia.  Through Internet communications they took the further step of speaking with each other on the phone which ultimately led to their meeting in Fiji.

14. They solemnised their relationship by marriage on 14 February 2018 at the Lautoka registry in Fiji.  Mr Ram was then employed in Australia in study employment.

15. On 12 July 2018, the applicant applied for and received a FA-600 visitor visa and entered Australia on 3 August 2018.  On 3 September 2018 the applicant then applied for and received a bridging Visa A.

16. The Tribunal decided to hold a second hearing as the applicant was represented by Mr Ram and a migration representative had not been engaged.  There were concerns about the evidence put forward on her behalf as truly showing the position of their relationship.  A number of statements have been received as well as the evidence from the applicant in more recent times which show that there has been a commitment to the world at large of the their relationship.  They are now both of employment and the put together their funds for common purposes.  There are no children of the relationship though that certainly has been discussed between them.

17. There has been a substantial number of photographs submitted to the Tribunal though there is no commentary as to the people represented in the photographs.  In this instance it’s fairly clear that they are with relatives and friends.

18. The Tribunal accepts from the oral evidence given by the applicant that she is in a loving relationship with her husband Mr Ram, they both worked together and enjoy the company of their friends in Geelong Victoria.

19. The Tribunal accepts the documents provided by the applicant including the photographic and oral evidence of family and friends and is of the opinion that to the couple are treated by their friends as being in a supportive relationship.  Now, they have been living for approximately four years together.  They have been on holidays together.  The bank statements indicate a patent of the expenditure which is consistent with a couple living together.  The Tribunal is satisfied that Mr Ram and the applicant are:

    a.Living together as a married couple and that the marriage is valid.

    b.That there is a mutual commitment to a shared life between Mr Ram and the applicant in that they are sharing the life as a married couple to the exclusion of all others as Sir it is testified by their friends and relatives.

    c.The evidence presented to the tribunal is that their relationship is both genuine and continuing.

    d.They are living together. 

20. Accordingly, the applicant is the spouse of the family head and cl 489.311 is met.

    decision

21. The Tribunal remits the application for a Skilled Regional Sponsored (Provisional) visa for reconsideration, with the direction that the applicant meets the following criteria for a 489 - Skilled - Regional (Provisional) visa:

    ·cl 489.311 of Schedule 2 to the Regulations

    Ian Berry
    Member

    1.12     Member of the family unit

    (1)This regulation has effect for the purposes of the definition of member of the family unit in subsection 5(1) of the Act.

    General rule

    (2)A person is a member of the family unit of another person (the family head) if the person is:

    (a)     a spouse or de facto partner of the family head; or

    (b)     a child or step-child of the family head or of a spouse or de facto partner of the family head (other than a child or step-child who is engaged to be married or has a spouse or de factor partner) and:

    (i)has not turned 18; or

    (ii)has turned 18, but has not turned 23 and is dependent on the family head or on the spouse or de facto partner of the family head; or

    (iii)has turned 23 and is under paragraph 1.05A(1)(b) dependent on the family head or on the spouse or de facto partner of the family head; or

    (c)      is a dependent child of a person who meets the conditions in (b).

    This subregulation has effect subject to the later subregulations of this regulation.

    …