Kubukawa (Migration) - [2025] ARTA 343

Kubukawa (Migration) [2025] ARTA 343 (14 March 2025)
DECISION AND
REASONS FOR DECISION
Applicant:Mr Ifereimi Koromueli Kubukawa
Visa Applicant:  Ms Varanisese Varo
Respondent:  Minister for Immigration and Multicultural Affairs
Tribunal Number:  2200163

Tribunal:General Member Kate Malyon
Place:Sydney
Date: 14 March 2025
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 309.211 of Schedule 2 to the Regulations; and,
·cl 309.221 of Schedule 2 to the Regulations.

Statement made on 14 March 2025 at 4:36 pm
CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – subclass 309 – parties are validly married – financial aspects of the parties’ relationship points in favour of them being in a genuine and continuing relationship – social aspects of the relationship are consistent with a married relationship – couple had a 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, rr 1.09, 1.15, Schedule 2, cls 309.211, 309.221
CASES
He v MIBP [2017] FCAFC 206
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 9 December 2021 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, Fijian national Varanisese Varo, applied for the visa on 28 May 2019 on the basis of her relationship with her sponsor, the review applicant Ifereimi Koromueli Kubukawa, who is an Australian citizen. 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 delegate refused to grant the visa on the basis that Ms Varo did not satisfy cl 309.211 and cl 309.221 of Schedule 2 to the Regulations. Whilst accepting that Ms Varo and Mr Kubukawa (hereinafter referred to as the couple) are married, the delegate was not satisfied Ms Varo had demonstrated that she is the ‘spouse’ of the sponsor as defined in s 5F of the Act.
Following refusal of Ms Varo’s visa application, Mr Kubukawa sought review of the delegate’s decision. Since lodgement of the review application, further documentary evidence has been provided including handwritten statements from each of Ms Varo and Mr Kubukawa in response to the s 359(2) Outreach letter of 5 August 2024.
The matter was set down for hearing on 10 October 2024. The hearing invitation requested the couple provide at least 7 days prior to the hearing a submission supported by further probative evidence to address all of the delegate’s reasons for refusing Ms Varo’s Subclass 309 visa application. On 30…

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 Kubukawa (Migration)

Details

AGLC: Kubukawa (Migration) [2025] ARTA 343
Case: [2025] ARTA 343
Decision Date: 14 March 2025

CaseChat Overview and Summary

Mr Kubukawa, an Australian citizen, sponsored his wife Ms Varo for a Partner (Provisional) (Class UF) visa (subclass 309). The matter was referred to the Migration Review Tribunal (MRT) for review of the visa refusal. The Tribunal concluded that the matter should be remitted for reconsideration by the Minister.

The primary issue for the Tribunal was whether the parties were in a genuine spousal relationship at the time of the application and at the time of the Tribunal's decision. The Tribunal considered evidence of the financial and social aspects of the relationship, as well as the nature of their household and their commitment to each other. The Tribunal found that the financial aspects of the parties' relationship and social aspects of the relationship were consistent with a married relationship. The Tribunal also found that the couple had a mutual commitment to a shared life to the exclusion of all others.

Given the findings above, the Tribunal concluded that the appropriate course was to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 309 visa. The Tribunal directed that the primary and secondary visa applicants met the following criteria for a Subclass 309 (Partner (Provisional)) visa: cl 309.211 and cl 309.221 of Schedule 2 to the Regulations.

Orders

Orders of the court

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Background

Background to the litigation

For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration. The Tribunal acknowledges it has significantly more information than that which was available to the delegate, in particular, oral evidence at the hearing.BACKGROUND Mr Kubukawa is a 60-year-old Australian citizen who was born in Fiji and migrated to Australia in 2008 after being granted a Partner visa sponsored by his then de facto partner Tracey. He was granted permanent residence on 26 November 2010 and, subsequently, acquired Australian citizenship on 26 October 2016. During the hearing, Mr Kubukawa apologised for incorrectly stating in his online Sponsorship for a partner to migrate to Australia form lodged in respect of his sponsorship of Ms Varo that he had not been in a previous relationship with anyone and nor had he been sponsored to Australia as a partner. He said he thought the question on the form was asking about a former spouse, not his former de facto partner Tracey. After the hearing, Mr Kubukawa provided the Tribunal with a formal Notification of incorrect answer(s) form in this regard, the original of which had been lodged by the representative with the Department on 14 June 2020. Both of Mr Kubukawa’s parents are deceased. Two of his siblings continue to live in Fiji and one of his brothers is an Australian citizen residing in Australia. Mr Kubukawa lives in regional NSW in Griffith and works as a Farm Hand / Farm Machinery Operator with chicken producer Baiada Poultry. Ms Varo is a 40-year-old citizen of Fiji. She has not declared any previous marriages or de facto relationships. Her father is her sole surviving parent. Ms Varo has only one sibling, a brother who also lives in Fiji. She has not been in the paid workforce since 2011: rather, she looks after her aged father as her mother has passed away. Ms Varo told the Tribunal her brother will look after their father when her Subclass 820 visa is finally granted and she moves to Australia to be with her husband. As stated in the application, the couple have known of each other since they were children as they come from the same beachside village of Viseisei, just north of Nadi. They met up in 2012 on social media. The couple’s relationship developed online, and they started communicating on a daily basis. It was when Mr Kubukawa returned to Fiji on 19 December 2017 and they met again face-to-face that they realised just how romantically serious their relationship was and, after lodging necessary documentation with Fijian authorities, they married in Fiji on 19 January 2018. Sixteen months later on 28 May 2019, Ms Varo lodged a Partner visa application (Subclass 309) which was refused by the Department on 9 December 2021. Since refusal of her visa application, Ms Varo has applied unsuccessfully for a visa to visit Australia. However, her husband has returned on multiple occasions to Fiji to spend time with his wife including for 3 months from 21 November 2022 to 21 February 2023 after international borders were opened again following the COVID-19 pandemic and most recently for a week in late October 2024. CONSIDERATION OF CLAIMS AND EVIDENCEIssue

Evidence

Evidence Before The Court

Since refusal of her visa application, Ms Varo has applied unsuccessfully for a visa to visit Australia. However, her husband has returned on multiple occasions to Fiji to spend time with his wife including for 3 months from 21 November 2022 to 21 February 2023 after international borders were opened again following the COVID-19 pandemic and most recently for a week in late October 2024. CONSIDERATION OF CLAIMS AND EVIDENCEIssue The issue in the present case is whether the couple 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.Whether the parties are in a spouse relationship Clause 309.211(2) requires that, at the time the visa application was made, the visa applicant is 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 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, the visa applicant claims to be the spouse of the review applicant who is an Australian citizen. The word ‘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. This includes evidence of the financial and social aspects of the parties’ relationship as well as the nature of their household and their commitment to each other as set out in reg 1.15A(3) of the Regulations. Each of the specific matters contained in reg 1.15A(3) is effectively a question which must be answered: He v MIBP [2017] FCAFC 206. 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 Ms Varo’s Subclass 390 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

Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 309 visa.DECISION The Tribunal remits the application for a Partner (Provisional) (Class UF) visa for reconsideration, with the direction that the primary and secondary visa applicants 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 RegulationsDate(s) of hearing: 10 October 2024Representative for the Applicant: Mr Mukesh Chand 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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