Kantajan (Migration) - [2024] ARTA 851

Kantajan (Migration) [2024] ARTA 851 (29 October 2024)
DECISION AND
REASONS FOR DECISION
Applicants:Mr Kailerd Kantajan
Mr Chayanut Kantajan
Mr Chayakorn Kantajan
Respondent:  Minister for Home Affairs
Tribunal Number:  2409692

Tribunal:General Member Kate Malyon
Place:Sydney
Date: 29 October 2024
Decision:The Tribunal remits the applications for Partner (Provisional) (Class UF) visas for reconsideration, with the direction that the first named visa applicant meets the following criteria for a Subclass 309 (Partner (Provisional)) visa:
·cl 309.211 of Schedule 2 to the Regulations; and,
·cl 309.221 of Schedule 2 to the Regulations.

I, General Member Kate Malyon, certify that this is
the Tribunal’s statement of decision and reasons.
Statement made on 29 October 2024 at 9:56 am
CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – genuine and continuing relationship – mutual money transfers – international visits – support for each other’s children – evidence of communication – partner registration with several authorities – shared business partnership – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5, 56, 65, 362
Migration Regulations 1994, Schedule 2, cls 309.211, 309.221; r 1.15
Privacy Act 1988 (Cth)
CASES
He v MIBP [2017] FCAFC 206
Jayasinghe v MIMA [2006] FCA 1700
Re MILGEA and Dhillon [1990] FCA 144
Singh v MIEA [1996] FCA 1429
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 10 April 2024 to refuse to grant the applicants Partner (Provisional) (Class UF) Subclass 309 visas under s 65 of the Migration Act 1958 (the Act).
The first named visa applicant, Thai national Kailerd Kantajan, applied for the visa on 13 December 2022 on the basis of his relationship with the sponsor, Australian permanent resident Ms Malivan Pongsumran. At that time, Class UF contained only one subclass: Subclass 309 Partner (Provisional). 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 Mr Kantajan did not satisfy

cl 309.211(2) of Schedule 2 to the Regulations. Whilst accepting that Mr Kantajan and Ms Pongsumran (hereinafter referred to as the couple) are married, the delegate was not satisfied Mr Kantajan had demonstrated that he is the ‘spouse’ of the sponsor as that word is defined in s 5F of the Act. The couple failed to respond to the Department’s multiple s 56 requests for further information sent via their representative. Following refusal of the visa application, the applicants sought review of the delegate’s decision.
Hearing – 2 September 2024
Mr Kantajan appeared before the Tribunal on 2 September 2024 to give evidence and present arguments by way of teleconference…

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 Kantajan (Migration)

Details

AGLC: Kantajan (Migration) [2024] ARTA 851
Case: [2024] ARTA 851
Decision Date: 29 October 2024

CaseChat Overview and Summary

In the case of Kantajan v Minister for Immigration, the applicant, Mr Kantajan, sought a Partner (Provisional) (Class UF) visa, subclass 309, from the Australian Government. The matter was heard by the Migration Review Tribunal, which had to decide whether Mr Kantajan and his Australian permanent resident sponsor, Ms Pongsumran, were in a genuine spousal relationship both at the time of application and at the time of the Tribunal's decision.

The central legal issues were whether Mr Kantajan and Ms Pongsumran met the criteria for a genuine spousal relationship under the Migration Act 1958 and the Migration Regulations 1994. Specifically, the Tribunal had to assess whether the relationship met the requirements for a marriage as defined by section 5F of the Act, and whether it fulfilled the conditions for a Subclass 309 visa as stipulated in clauses 309.211 and 309.221 of Schedule 2 to the Regulations.

The Tribunal concluded that it had more information than the delegate who originally refused Mr Kantajan's application. This included oral evidence from the hearing and extensive documentation submitted after the hearing. The Tribunal found that the matter should be remitted for reconsideration by the Department, as it had been able to consider evidence that was not available to the delegate. The Tribunal's assessment included evaluating the financial, social, and commitment aspects of the relationship as outlined in regulation 1.15A(3) of the Regulations. The Tribunal also considered evidence of events subsequent to the visa application, noting that such evidence could be relevant if it tended to show the existence or non-existence of facts relevant to the issue of the relationship's genuineness.

The Tribunal's decision was to remit Mr Kantajan's visa application for reconsideration, directing that he meets the criteria for a Subclass 309 visa. The applications of his two sons, who were dependents, would be determined based on the outcome of Mr Kantajan's application on remittal.

Orders

Orders of the court

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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. It acknowledges that it has significantly more information than that which was available to the delegate at the time of their decision, in particular, oral evidence at the hearing as well as the extensive indexed and paginated documentation submitted after the hearing.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in the present case is whether Mr Kantajan and Ms Pongsumran were in a genuine spousal relationship both at the time of application and at the time of this decision. Relevant provisions of the Act and the Regulations referred to in this decision are set out in the Attachment to the decision. Are the parties in a spousal or de facto relationship? Clause 309.211(2) of Schedule 2 to the Regulations requires that, at the time the visa application was made, Mr Kantajan was the spouse or de facto partner of an Australian citizen or Australian permanent resident or an eligible New Zealand citizen. With limited exceptions that only apply in relation to a decision to grant or not grant a Subclass 309 visa made on or after 20 August 2022, the primary visa applicant must continue to be the spouse or de facto partner at the time of the Tribunal’s decision: cl 309.221 of Schedule 2 to the Regulations. In the present case, Mr Kantajan claims to be the spouse of the sponsor, Australian permanent resident Ms Pongsumran. The word ‘spouse’ is defined in s 5F of the Act and provides that a person is the spouse of another where the 2 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 also 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) - s 5F(2)(d) of the Act. 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 of the parties’ relationship as well as the nature of the first names visa applicant’s and the sponsor’s household and their commitment to each other as set out in reg 1.15A(3) of the Regulations. These provisions are extracted in the Attachment to this decision. Each of the specific matters contained in reg 1.15A(3) of the Regulations are effectively questions which must be answered by the decision-maker: He v MIBP [2017] FCAFC 206 at paras [76] – [77]. The Tribunal’s assessment of whether the claimed relationship involves a ‘mutual commitment to a shared life’ requires an assessment of the subjective intentions of the parties: Singh v MIEA [1996] FCA 1429 at [13]. Relevant to its review of the delegate’s refusal of Mr Kantajan’s Subclass 309 visa application, the Tribunal notes the following comments of Middleton J in Jayasinghe v MIMA [2006] FCA 1700 at para [35]:Evidence of events subsequent to 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’: see Minister for Immigration and Ethnic Affairs v Pochi (1980) 4 ALD 139 at 160 per Deane J. The Tribunal must consider all relevant evidence, which may include evidence of events subsequent to the date of application insofar as it assists in the task of determining whether the appellant and the sponsor were in a marriage relationship at the time of the application. The question of whether particular evidence is relevant and the weight it is to be given is clearly a matter for the Tribunal.

Decision

Reasons for decision

The applications of the second and third named visa applicants, Mr Kantajan’s 2 sons Chayanut Kantajan and Chayakorn Kantajan, are based on their each being a member of the family unit of a person who meets the primary criteria. Accordingly, their applications will be determined by reference to the outcome of Mr Kantajan’s application on remittal to the Department for reconsideration. 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:·cl 309.211 of Schedule 2 to the Regulations; and, ·cl 309.221 of Schedule 2 to the Regulations.Kate MalyonGeneral MemberDate(s) of hearing: 2 September 2024 Representative for the Applicants: Mr Winai Jiamsakul (MARN: 0321571)ATTACHMENT - Extracts from Migration Act 1958 and Migration Regulations 1994Migration Act 1958 …5F Spouse(1) For the purposes of this Act, a person is the spouse of another person (whether of the same sex or a different sex) if, under subsection (2), the 2 persons are in a married relationship.(2) For the purposes of subsection (1), persons are in a married relationship if:(a) shoot they are married to each other under a marriage that is valid for the purposes of this Act; and(b) they have a mutual commitment to a shared life as a married couple to the exclusion of all others; and(c) the relationship between them is genuine and continuing; and(d) they:(i)live together; or(ii)do not live separately and apart on a permanent basis.(3) The regulations may make provision in relation to the determination of whether one or more of the conditions in paragraphs (2)(a), (b), (c) and (d) exist. The regulations may make different provision in relation to the determination for different purposes whether one or more of those conditions exist.Note: Section 12 also affects the determination of whether the condition in paragraph (2)(a) of this section exists.Migration Regulations 1994…1.15ASpouse(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).…Schedule 2 - Subclass 309 -- Partner (Provisional)309.1--Interpretation309.111 In this Part:"intended spouse" means the person referred to in subparagraph 309.211(3)(a)(i), (ii) or (iii).Note: eligible New Zealand citizen and guardian are defined in regulation 1.03, parent is defined in subsection 5(1) of the Act (also see regulation 1.14A), de facto partner is defined in section 5CB of the Act (also see regulation 1.09A), and spouse is defined in section 5F of the Act (also see regulation 1.15A).309.2 - Primary criteria309.21 - Criteria to be satisfied at time of application309.211 (1) The applicant meets the requirements of subclause (2) or (3).(2) The applicant meets the requirements of this subclause if the applicant is the spouse or de facto partner of:(a) an Australian citizen; or(b) an Australian permanent resident; or(c) an eligible New Zealand citizen.(3) The applicant meets the requirements of this subclause if:(a) the applicant intends to marry:(i) an Australian citizen; or(ii) an Australian permanent resident; or(iii) an eligible New Zealand citizen; and(b) the intended marriage will, if it takes place, be a valid marriage for the purposes of section 12 of the Act.Note: If the applicant is an applicant referred to in subclause 309.211(3), the marriage must have taken place before the applicant can be granted a visa of this subclass: see clause 309.224.309.212 (1) The spouse, de facto partner or intended spouse of the applicant is not prohibited by subclause (2) from being a sponsor.(2) The spouse, de facto partner or intended spouse is prohibited from being a sponsor if:(a) the applicant is a male person; and(b) the spouse, de facto partner or intended spouse is a woman who was granted a Subclass 204 (Woman at Risk) visa within the 5 years immediately preceding the application; and(c) on the date of grant of that visa:(i) the applicant was a former spouse or former de facto partner of that woman, having been divorced or permanently separated from that woman; or(ii) the applicant was the spouse or de facto partner of that woman and that relationship had not been declared to Immigration.309.213 (1) If the applicant is an applicant referred to in subclause 309.211(2), the applicant is sponsored:(a) if the applicant's spouse or de facto partner has turned 18--by that spouse or de facto partner; or,(b) if the applicant's spouse has not turned 18--by a parent or guardian of that spouse who:(i) has turned 18; and(ii) is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen.(2) If the applicant is an applicant referred to in subclause 309.211(3), the applicant is sponsored:(a) if the applicant's intended spouse has turned 18--by that intended spouse; or(b) if the applicant's intended spouse has not turned 18--by a parent or guardian of that intended spouse who:(i) has turned 18; and(ii) is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen.…309.22 - Criteria to be satisfied at time of decision309.221 The applicant continues to satisfy the criterion in clause 309.211.309.222 The sponsorship referred to in clause 309.213 has been approved by the Minister and is still in force.Note: Regulations 1.20J, 1.20KA and 1.20KB limit the Minister's discretion to approve sponsorships.309.223 In the case of an applicant who meets the requirements of subclause 309.211(2), the applicant continues to be the spouse or de facto partner of the person referred to in paragraph 309.211(2)(a), (b) or (c) who was the applicant's spouse or de facto partner at the time of the application.309.224 If the applicant is an applicant referred to in subclause 309.211(3), the marriage referred to in that subclause has taken place and the applicant continues to be the spouse of the intended spouse.309.225 The applicant:(a) satisfies public interest criteria 4001, 4002, 4003, 4004, 4007, 4009, 4020 and 4021 ; and(b) if the applicant had turned 18 at the time of application -- satisfies public interest criterion 4019.309.226 If the applicant has previously been in Australia, the applicant satisfies special return criteria 5001 and 5002.309.228 (1) Each member of the family unit of the applicant who is an applicant for a Subclass 309 visa is a person who:(a) satisfies public interest criteria 4001, 4002, 4003, 4004, 4007, 4009 and 4020; and(aa) if the person had turned 18 at the time of application, satisfies public interest criterion 4019; and(b) if the person has previously been in Australia, satisfies special return criteria 5001 and 5002.(2) Each member of the family unit of the applicant who is not an applicant for a Subclass 309 visa is a person who:(a) satisfies public interest criteria 4001, 4002, 4003 and 4004; and(b) satisfies public interest criterion 4007, unless the Minister is satisfied that it would be unreasonable to require the person to undergo assessment in relation to that criterion.309.229 If a person (in this clause called the additional applicant):(a) is a member of the family unit of the applicant; and(b) has not turned 18; and(c) made a combined application with the applicant-- public interest criteria 4015 and 4016 are satisfied in relation to the additional applicant.oOOo

Ratio Decidendi

Legal Principle Established

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