CHAPMAN (Migration) - [2022] AATA 2912

CHAPMAN (Migration) [2022] AATA 2912 (4 July 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Mr Joshua Robert CHAPMAN
VISA APPLICANTS:  Ms Nishaben Jagdishchandra RAVAL
Ms Misha Vivekanand SHASTRI
Ms Mita Vivekanand SHASTRI
Mr Vishnu Vivekanand SHASTRI
REPRESENTATIVE:  Mr Sam Tejani
CASE NUMBER:  1718813
DIBP REFERENCE(S):  BCC2016/1749774
MEMBER:Mireya Hyland
DATE:4 July 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the application for a Partner (Provisional) (Class UF) visa for reconsideration, with the direction that the first named visa applicant meets the following criteria for a Subclass 309 (Partner (Provisional)) visa:
· all the subclauses in cl.309.21 of Schedule 2 to the Regulations; and
· cl.309.221 of Schedule 2 to the Regulations.

DECISION:The Tribunal remits the application for Partner (Provisional) (Class UF) visas for reconsideration, with the direction that the second, third, and fourth named visa applicants meet the following criteria for a Subclass 309 (Partner (Provisional)) visa:
· cl.309.311 of Schedule 2 to the Regulations.

Statement made on 04 July 2022 at 11:19am
CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – genuine and continuing relationship – validly married – limited evidence of shared finances and household – personal support through health issues – members of the family unit – wholly or substantially reliant – decision under review remitted
LEGISLATION
Marriage Act 1961
Migration Act 1958, ss 5, 12, 65, 88
Migration Regulations 1994, Schedule 2, cls 309.211 – 309.213, 309.221, 309.321; rr 1.12, 1.15
CASES
He v MIBP [2017] FCAFC 206
Huynh v MIMA [2006] FCAFC 122
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 8 August 2017 to refuse to grant the visa applicants, Nishaben Jagdishchandra Raval and her three children, Partner (Provisional) (Class UF) visas under s.65 of the Migration Act 1958 (the Act).
Ms Raval and her children, Misha, Mita, and Vishnu VIVEKANAND SHASTRI, applied for the visas on 16 May 2017 on the basis of Ms Raval’s relationship with their sponsor, Joshua Robert CHAPMAN. At that time, Class UF contained 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 delegate refused to grant the visa on the basis that Ms Raval does not satisfy cl.309.211 because the delegate did not accept that she is the spouse of Mr Chapman. Mr Chapman provided that decision to the Tribunal with his review application.
Mr Chapman appeared before the Tribunal on 17 June 2019 to give evidence and present arguments. The hearing was conducted in English. The Tribunal also received oral evidence from Ms Raval. She gave evidence with the assistance of an interpreter in the Gujarati and English languages. Unfortunately, the telephone connection to India was unsatisfactory and Ms Raval and the interpreter could not hear or understand each other. Therefore, it was necessary for…

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 CHAPMAN (Migration)

Details

AGLC: CHAPMAN (Migration) [2022] AATA 2912
Case: [2022] AATA 2912
Decision Date: 4 July 2022

CaseChat Overview and Summary

This matter concerned an appeal by Mr Chapman and Ms Raval against a decision regarding Ms Raval's Partner (Provisional) (Class UF) visa application, subclass 309. The primary issues before the court were whether Ms Raval was Mr Chapman's spouse and whether Ms Raval's children were members of her family unit for the purposes of the visa application.

The court was required to determine if Ms Raval and Mr Chapman were in a married relationship as defined by section 5F of the Migration Act 1958 (Cth). This involved assessing whether they were married under a marriage valid for the purposes of the Act, demonstrated a mutual commitment to a shared life as a married couple to the exclusion of others, and whether their relationship was genuine and continuing, and that they lived together or not separately and apart on a permanent basis. Additionally, the court needed to consider if Ms Raval's children qualified as members of her family unit at the time of the decision, specifically whether they were wholly or substantially reliant on Ms Raval for financial support for their basic needs.

The court found that while Ms Raval and Mr Chapman were validly married, the evidence presented regarding the financial aspects of their relationship and the nature of their household was limited. However, the court was satisfied that Ms Raval's children met the criteria to be considered members of her family unit at the time of the visa application. Furthermore, the court determined that at the time of the decision, Ms Raval's two adult daughters, Mita and Misha, were wholly or substantially reliant on Ms Raval for financial support for their basic needs, and were not reliant on any other person or source of support. The court also noted that Ms Raval's son, Vishnu, continued to meet the age criteria for being a member of the family unit.

Consequently, the Tribunal concluded that the matter should be remitted for reconsideration, as the children were found to be members of Ms Raval's family unit at the time of the decision.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The issues in the present case are whether Ms Raval is Mr Chapman’s spouse and whether Ms Raval’s children are members of her family unit. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.CONSIDERATION OF CLAIMS AND EVIDENCE Ms Raval was born in India on 28 September 1976 and is 45 years of age. She lives in Rajkot, Gujarat in India and is an Indian citizen. Ms Raval claims one previous married relationship to Vivekanand Jayendrabhai Shastri, born on 8 August 1972. They married on 20 February 1999 and divorced on 11 February 2009. There are three children of the marriage, the secondary applicants, Mita and Misha, born 28 December 1999 (now aged 22), and Vishnu, born 26 November 2004 (now aged 17). Ms Raval is a self-employed astrologer. Mr Chapman was born on 23 September 1985 in Sydney, Australia and is 36 years of age. He is an Australian citizen and claims no other nationality. He claims no previous relationships. He works for Westmead Children’s Hospital and does other casual work for extra money. He rents a residence in the Western suburbs of Sydney. Ms Raval and Mr Chapman have known each other since November 2015 when they met on facebook through a mutual friend. They began chatting about common interests and eventually started talking on WhatsApp and Skype. They shared their views, likes, and values. Mr Chapman found Ms Raval to be a brave, intelligent, caring woman. She had the qualities he was looking for in a life partner. She helped him with some personal and professional issues he was facing at the time. Ms Raval was looking for a matrimonial partner. Mr Chapman proposed to Ms Raval on Valentine’s Day 2016. She hesitated at first because of their age gap and her three children. After discussing it with her children she accepted Mr Chapman’s proposal. Ms Raval and her children wanted a traditional Indian wedding. Therefore, Mr Chapman departed Australia on 3 April 2016 and went to India. They were married on 15 April 2016 which was the Rama Navami holiday. They honeymooned in the local area before Mr Chapman returned to Australia. Mr Chapman, Ms Raval and the children enjoyed a holiday in Thailand in September 2017 and Mr Chapman returned to India in 2018. Ms Raval met Mr Chapman in Thailand in April 2022.Whether Ms Raval is Mr Chapman’s Spouse Clause 309.211(2) and 309.221 require that at the time when the visa application was made, and at the time of this decision, a 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 Ms Raval claims to be the spouse of Mr Chapman who is an Australian citizen. ‘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) of the Act. In forming an opinion about these matters, regard must be had to all of the circumstances of the relationship: r.1.15A(2). This includes evidence of the financial aspects of the relationship and the nature of their household, as well as the social aspects of the relationship and the nature of their commitment to each other: r.1.15A(3). Each of the specific matters contained in r.1.15A(3) are effectively questions which must be answered[1] and the Tribunal has considered each one in relation to the evidence and satisfied itself about each of them.[1] He v MIBP [2017] FCAFC 206.Are Ms Raval and Mr Chapman Validly Married – s.5F(2)(a) of the Act

Decision

Reasons for decision

The Tribunal is satisfied that Ms Raval’s children met r.1.12(2)(b) and were members of her family unit on 16 May 2017. As a result, they meet cl.309.311 because they made a combined application with Ms Raval and were members of her family unit at the time of the application.Members of Ms Raval’s Family Unit at the Time of Decision - cl.309.321 Although they made a combined application with Ms Raval, because Ms Raval has not been granted a Subclass 309 (Partner (Provisional)) visa at the time of this decision, her children do not meet cl.309.321 of the Regulations. However, for the following reasons the Tribunal finds that they meet r.1.12(2)(b) and are members of Ms Raval’s family unit at the time of decision for the purposes of cl.309.321. At the time of this decision, Vishnu is 17 years of age and so still has not turned 18. Therefore, he continues to meet r.1.12(2)(b)(i) of the Regulations and is a member of Ms Raval’s family unit at the time of this decision. Mita and Misha have turned 18, but at 22 years of age have not turned 23. They will meet r.1.12(2)(ii) if they are ‘dependent’ on their mother. The term ‘dependent’ is defined in r.1.05A of the Regulations. Relevantly, it requires that at the relevant time, and for a substantial period immediately before that time, the person who is claiming to be dependent (that is, Misha and Mita) must be wholly or substantially reliant on the other person (in this case, Ms Raval) for financial support to meet basic needs for food, clothing and shelter. Further, Misha’s and Mita’s reliance on Ms Raval must be greater than their reliance on any other person or source of financial support to meet those basic needs: r.1.05A(1)(a)(ii) and (ii). The terms of r.1.05A(1) do not carry with them any implication of necessity or lack of choice. The question is whether, as a matter of fact, the children are relying on their mother for support.[5] That said, the claim is that her daughters are completely financially reliant on Ms Raval, not only for their basic needs for food, clothing and shelter, but for everything.[5] Huynh v MIMA [2006] FCAFC 122 at [44]. The Tribunal accepts based on the documentation and evidence at the hearings that after completing school, Mita and Misha started a four year course in homeopathic medicine. It also accepts that they completed exams in March 2022 and are now undertaking unpaid work experience for 12 months, until March 2023, in order to complete their qualification. Although Mr Chapman has provided some funds for their course, Mita and Misha continue to live with their mother in the home shared with her sister. The family has lived there together since before the time of application. Ms Raval has always been and continues to be responsible for providing Mita and Misha with all their food and all their clothing. On the basis of its findings above, the Tribunal finds that at the time of this decision and for a substantial period immediately before that time, Mita and Misha were wholly or substantially reliant on Ms Raval for financial support to meet their basic needs for food, clothing and shelter. It finds they were not reliant on any other person or source of support for financial support to meet their basic needs for food, clothing and shelter. At the time of this decision Mita and Misha are dependent on Ms Raval as defined in the Regulations.

Ratio Decidendi

Legal Principle Established

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