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…

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 Mootoo (Migration)

Details

AGLC: Mootoo (Migration) [2024] AATA 521
Case: [2024] AATA 521
Decision Date: 9 February 2024

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered an application for a Partner (Provisional) (Class UF) visa made by a Burmese national. The applicant claimed to be the spouse of an Australian citizen, the sponsor. The parties met via international phone call, developed a relationship, and married in Myanmar on 20 June 2019. The sponsor departed Myanmar six days later, and the parties have not met in person since. The Tribunal was required to determine whether the parties were in a genuine and continuing married relationship, as defined by section 5F of the Migration Act 1958 (Cth) and Regulation 1.15A of the Migration Regulations 1994.

The Tribunal's reasoning focused on the definition of a "married relationship" under section 5F(2) of the Act, which requires a mutual commitment to a shared life to the exclusion of others, a genuine and continuing relationship, and that the couple live together or not separately and apart on a permanent basis. The Tribunal was satisfied that the parties were validly married in Myanmar, fulfilling the requirement of section 5F(2)(a). However, the Tribunal also had to consider all the circumstances of the relationship, including the financial and social aspects, the nature of their household, and their commitment to each other, as outlined in Regulation 1.15A(3). The Tribunal noted the limited opportunities for assessing these aspects due to COVID-19 travel restrictions, political unrest, the sponsor's short stay in Myanmar, and the lack of in-person contact since the wedding. Furthermore, the Tribunal gave limited weight to statements from church members in Australia and noted the absence of supporting statements from family members.

Given the limited evidence available to fully assess the remaining criteria for a genuine and continuing married relationship, the Tribunal determined that the application should be remitted to the Minister for reconsideration. The Tribunal directed that the visa applicant meets the criteria under clauses 309.211 and 309.221 of Schedule 2 to the Regulations, allowing for further assessment of the relationship's genuineness and continuation by the Department.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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 EVIDENCEWhether 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.

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 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 ConwellMemberATTACHMENT - Extract from Migration Regulations 19941.15ASpouse(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).

Ratio Decidendi

Legal Principle Established

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