Mootoo (Migration) - [2024] AATA 521

Mootoo (Migration) [2024] AATA 521 (9 February 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Mr Samuel Kithay Mootoo
VISA APPLICANT:  Ms Naw Hsei Nay Thar
REPRESENTATIVE:  Mr Ganasan Arujunan
CASE NUMBER:  2317829
DIBP REFERENCE(S):  BCC2021/1966258
MEMBER:Stephen Conwell
DATE:9 February 2024
PLACE OF DECISION:  Perth
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
cl.309.221 of Schedule 2 to the Regulations

Statement made on 09 February 2024 at 4:10pm
CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – genuine and continuing relationship – validly married in home country – sponsor’s short stay there and no meeting in person since – COVID travel restrictions and political and civil unrest – limited opportunities for financial and social aspects and nature of household – nature of commitment – no supporting statements from family members – statements from church members in Australia given limited weight – first stage of two-stage process, with further assessment by department – decision made without hearing necessary – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5F(2), 65, 360(2)(a)
Migration Regulations 1994 (Cth), r 1.15A(3), Schedule 2, cls 309.211(2), 309.221
CASES
He v MIBP [2017] FCAFC 206
Li v Minister for Immigration [2007] FMCA 454
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 Home Affairs on 30 October 2023 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 (the applicant) applied for the visa on 16 October 2021 on the basis of her relationship with her sponsor, the review applicant. 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 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 the applicant did not satisfy cl.309.211 because there was insufficient evidence that the parties were in a spousal relationship as set out in s.5F of the Act.
The review applicant (the sponsor) was represented in relation to the review by his registered migration agent. The sponsor provided a copy of the delegate’s decision to the Tribunal for the purposes of the review.
The sponsor applied to the Tribunal for a priority hearing, on the grounds of ongoing political and civil unrest in Myanmar and as a consequence, his concerns for the applicant’s safety. The priority request was granted on 5 January 2024.
The Tribunal is in receipt of more information than was available to the delegate. In reaching its decision the Tribunal did not consider a hearing to be necessary as it was able to find in favour of the visa applicant on the basis of the material before it, pursuant to s.360(2)(a) of the Act.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the parties are in a genuine spousal relationship.
Background
The sponsor is an Australian citizen by conferral. He came to Australia under a Humanitarian visa. He and his siblings were orphans from Myanmar. They lived in a refugee camp in Thailand before coming to Australia.
The applicant is a Burmese national of the same ethnic and religious background. The couple were introduced during an international phone call between the sponsor and a close friend of the applicant. A friendship and relationship developed, and the sponsor travelled to Myanmar where the parties married on 20 June 2019. The parties have not met in person since the sponsor departed Myanmar on 26 June 2019, six days after their wedding.
CONSIDERATION OF CLAIMS AND EVIDENCE
Whether the parties are in a spouse or de facto relationship
Clauses 309.211(2) and 309.221 require that at the time the visa application was made, and at the time of this decision, the 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 the visa applicant claims to be the spouse of the sponsor 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). In forming an opinion about these matters, regard must be had to all the circumstances of the relationship. This includes evidence of the financial and social aspects and the nature of the visa applicant’s and sponsor’s household and their commitment to each other as set out in r.1.15A(3), which is extracted in the attachment to this decision. Each of the specific matters contained in r.1.15A(3) are effectively questions which must be answered: He v MIBP [2017] FCAFC 206.
Are the parties validly married?
If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. The parties have provided a signed and certified copy of a Certificate of Marriage that shows that the marriage took place in Myanmar on 20 June 2019. As both parties are Seventh-Day Adventists, the marriage was officiated within that church. The Tribunal is satisfied that the Certificate of Marriage is genuine and that 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?
The Tribunal must consider all the circumstances of the relationship (including the matters specified in r.1.15A) in determining whether the parties are in a “married relationship” as defined by s.5F(2). Accordingly, this Tribunal has had regard to the parties’ financial relationship; the nature of their household; the social aspects of the relationship; and the nature of their commitment to each other. On these aspects this Tribunal has considered all the evidence before it.
The parties, through their representative, have provided various submissions and documentation to support their claimed spousal relationship. In particular the Tribunal has regard to the representative’s written submission of 1 January 2024; the sponsor’s statutory declarations of 4 September and 17 October 2021 and 5 May 2023; the applicant’s personal statement of 7 October 2021; a letter from the Director of Seventh Day Adventist Church, Myanmar dated 25 Apr 2023; a letter from Pastor John Horvath, Perth, dated 16 Apr 2023; money transmittals from the sponsor to the applicant from October 2021 to April 2023; news articles concerning the ongoing political and civil unrest in Myanmar.
With respect to the criteria in Regulation 1.15A(3), the parties have provided a plausible account of their lives to date and of their relationship with each other, including evidence of their financial, emotional, household and social interaction.
As noted by the representative, regarding the financial aspects of the relationship, the applicant lives a semi-rural life with her parents (who are farmers) in Myanmar, whilst the sponsor lives in Australia where he has full-time employment. The sponsor has been sending money to financially support the applicant. The evidence shows that these money transfers have been regularly made over the past three years.
The Tribunal is satisfied that the parties have tried, despite the difficulties of living in different countries, to pool their financial resources to the extent that such things are possible in their current circumstances.
For a number of reasons, in particular the volatile political situation in Myanmar as well as the parties’ limited finances, they have not had the opportunity to spend more time together to live as a married couple in a shared household. Having married in June 2019, the sponsor’s plans to visit the applicant in 2020 were stymied by the global pandemic which restricted all international travel from approximately March 2020 to March 2022. The sponsor did travel to Thailand in March 2023 hoping to see her but unfortunately due to ongoing civil unrest she could not travel to Thailand to meet him. The sponsor remained in Thailand for some three weeks, but the parties could find no other way to meet up.
Whilst the couple have not spent a great deal of time together, duration does not necessarily dictate significance or bona fides, particularly given the challenges of their living in different countries and the intervention of the COVID pandemic. The Tribunal therefore places no weight on the ‘nature of the household’ aspect of the relationship.
In respect to the social aspects of the relationship, it is claimed that the applicant’s family did not attend the wedding as they could not afford to travel to the venue which was some distance from where they lived. The representative points to the five statutory declarations (Form 888) from Australian citizens about their genuine and continuing relationships, as well as the statements from Churches in Myanmar (where the parties married) and in Perth. It is submitted that statements from non-family members should carry more weight and furthermore there is no requirement under the migration legislation that the applicant’s parents must give statements.
The Tribunal does not accept this reasoning. It is up to the parties to make their case and to provide sufficient supporting evidence to satisfy the decision-maker. The Tribunal gives only limited positive weight to the statutory declarations (Form 888), as the declarants are all friends of the sponsor through their Church congregation. None have met the applicant in person nor have any seen the two together as a couple.
The Tribunal gives neutral weight to the social aspects of the relationship.
With respect to the nature of commitment to each other, the Tribunal is satisfied the applicant and her sponsor have a shared understanding of what their future will look like and have clear aspirations and plans for their life together, bound together by a shared ethnicity and Christian faith.
The Tribunal is also mindful that each of the matters in r.1.15A(3) are not ‘criteria’ which must be ‘met’. See Li v Minister for Immigration [2007] FMCA 454, Riley FM at [70]–[72].
As this is the initial stage of a two-stage process, and the second stage is required prior to the granting of any permanent visa, the Department will be in a position to reassess in due course whether the parties continue to meet the criteria.
For now, the Tribunal is satisfied that the applicant’s relationship with her sponsor is consistent with the requirements of the Act and Regulations. In respect of whether there is a mutual commitment to a shared life as husband and wife to the exclusion of all others, the Tribunal is satisfied that the couple share this mutual commitment based upon the parties’ statements, the length of time in which they have maintained their relationship in spite of their living in different countries, and the documentary evidence presented.
Accordingly, the Tribunal is satisfied that the parties are genuinely committed to each other to the exclusion of all others.
FINDINGS
On the basis of the above, the Tribunal is satisfied that the requirements of s.5F(2) are met at the time the visa application was made and at the time of the decision.
Therefore, the visa applicant meets cl.309.211 and 309.221.
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 visa applicant meets the following criteria for a Subclass 309 (Partner (Provisional)) visa:
·cl.309.211 of Schedule 2 to the Regulations
·cl.309.221 of Schedule 2 to the Regulations
Stephen Conwell
Member
ATTACHMENT - Extract from 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).