Silva (Migration)

[2024] AATA 299

Silva (Migration) [2024] AATA 299 (13 February 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Mutumuni Kamal Silva

VISA APPLICANT:  Mrs Hasitha Ruklanthi Silva

CASE NUMBER:  2317922

DIBP REFERENCE(S):  BCC2019/6988366

MEMBER:Peter Emmerton

DATE:13 February 2024

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal affirms the decision not to grant the visa applicant a Partner (Provisional) (Class UF) visa.

Statement made on 13 February 2024 at 3:00pm

CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – genuine and continuing relationship – validly married in home country one week after meeting – age gap – short time spent together before sponsor’s return – limited evidence of financial, household and social aspects of relationship and nature of commitment – COVID travel restrictions – modest means, insecure housing and living in different countries – applicant’s intention to lodge dependent application for adult daughter – sponsorship withdrawn and unconvincing explanation for retraction – adverse information not relevant or given no weight – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5CB(2)(b), 5F(2), 65, 376
Migration Regulations 1994 (Cth), r 1.15A(3), Schedule 2, cls 309.211(2), 309.221

CASE
He v MIBP [2017] FCAFC 206

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 1 September 2023 to refuse to grant the visa applicant a Partner (Provisional) (Class UF) visa under s 65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 3 January 2020 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.

3. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl 309.211 because they were not satisfied the evidence provided was sufficient to demonstrate that the relationship between the parties was genuine and continuing as required by section 5F(2c) or 5CB(2b).

4. The review applicant appeared before the Tribunal on 13 February 2024 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant Mrs Hasitha Ruklanthi Silva.

5. The applicants were unrepresented.

6. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is whether the couple is in a genuine spousal relationship as defined by section 5F of the Act.

8. In determining the applicants’ claims the Tribunal must first make findings of fact on material matters in dispute. This may involve an assessment of credibility and in so doing, the Tribunal is aware of the need and the importance of being sensitive to the circumstances and the difficulties applicants often face before the Tribunal in their individual circumstances.

9. The applicants rely on the evidence given before the Tribunal together with written submissions and supporting evidence provided to the Tribunal and previously to the Department.

10. The Tribunal raised the issue of a Non-Disclosure Certificate under section 376 of the Migration Act. It explained in general terms that reports had been made to the Department stating the relationship was non genuine. These statements raised issues including members of the applicant’s family were unhappy with the marriage and it was kept secret. The sponsor had committed family violence to a previous wife from whom he is divorced. He failed to support a previous wife and child and abandoned them. Some of these allegations were anonymous and in others the source identified themselves. The Tribunal gives no weight to evidence provided anonymously as it can’t be examined. It does not consider the issue of some family members of the visa applicant’s family being unhappy with the marriage as relevant as no evidence was provided to support the claim.

11. The Tribunal asked if the review applicant would like to comment or respond. He stated that it was his belief that his previous wife had made false claims as she didn’t want him to find another wife and he believed she wanted him to die alone. No evidence was proffered to substantiate this statement.

    Whether the parties are in a spouse or de facto relationship

12. 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. In the present case the visa applicant claims to be the spouse of the review applicant who is an Australian citizen.

13. ‘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 of the circumstances of the relationship. This includes evidence of the financial and social aspects and the nature of the visa applicant’s and review applicant’s household and their commitment to each other as set out in            reg 1.15A(3), which is extracted in the attachment to this decision. 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.

    Are the parties validly married?

14. If the parties are validly married, they may meet the requirements of a spousal relationship, but not a de facto relationship. The delegate accepted a Marriage Certificate as evidence that the couple were legally married. The Certificate is dated 1 August 2019, issued in Sri Lanka. The Tribunal also accepts this evidence and stated so during the hearing. On the evidence, 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 spousal relationship met?

15. In forming an opinion whether they are in a spousal relationship, consideration must be given to all of the circumstances of the relationship. This includes evidence of the financial and social aspects, the nature of the visa applicant’s and review applicant’s household and their commitment to each other as set out in r.1.15A which is attached to this decision.

16. The applicant lodged a valid application for a Class UF Partner (Provisional) and BC Partner (Migrant) visa on 3 January 2020 on the grounds of being in a spousal relationship with an Australian citizen, Mr Mutumuni Kamal Silva.

17. The visa applicant and the sponsor have declared previous marriage relationships and provided evidence of Divorces. This is the applicant’s second relationship and the sponsor’s third relationship.

18. The Department has declared the DOB of the sponsor and the DOB of the applicant. The Tribunal accepts this as fact and therefore it is agreed that both parties have met personally since turning 18. It notes the sponsor was born in 1949 and the applicant was born in 1981.

19. Both the visa applicant and the sponsor are therefore greater than 18 years of age.

20. It is accepted by the Tribunal the parties submitted that they were introduced in early 2019 through an introduction made by the sponsor’s cousin who is the applicant’s uncle. They commenced communication on 14 April 2019 and met in person in Sri Lanka on 26 July 2019 when the sponsor travelled to Sri Lanka. They married less than 1 week later, on 1 August 2019 in Sri Lanka. This was corroborated during the hearing. The sponsor departed Sri Lanka on 21 September 2019 having spent 2 months in Sri Lanka and the parties have not spent any time together since that date.

21. The Departmental travel records verify the claimed travel of the sponsor. There is no record to indicate the visa applicant has visited Australia. It is noted she applied for a visitor visa which was denied.

22. The Tribunal has considered the documentary evidence provided to the Department and the Tribunal.

23. The following evidence, in addition to the documentation provided to the delegate and the department was provided to the Tribunal prior to the hearing.

    ·Text messages and call records 2023 and 2024

    ·Westpac Bank payment summaries - 9 ranging between $300 and $700

    ·Applicant statements including apparent correspondence to Dept, undated

    ·Statutory declaration (offshore) of Tholka Mudiyanselage Anula Pushpa Kumari dated 20 December 2019

    ·Statutory declaration (offshore) of Kapuwella Gamage Gihan Priyashantha Kumara dated 20 December 2019

    ·Statement of M.P Rasika Dilruski - 9 September 2021

    ·Character statement of G.G.R Pushpakumari - 21 September 2021

    ·Character statement of May Triple Gems Bless Her - 21 September 2021

    ·Outline of evidence of the relationship, clarification of the applicants (undated)

24. The Tribunal has considered all aspects of the relationship.  

25. The Tribunal has determined that there is not a demonstrated clear mutual commitment to a shared life together. The Tribunal is not satisfied that there is a mutual commitment to a shared life as a married couple to the exclusion of all others, the relationship is genuine and continuing, and the couple will live together, or not live separately and apart on a permanent basis: s 5F(2)(a)-(d).

    Financial Aspects of the Relationship

26. In relation to the financial aspects of the relationship between the applicant and the sponsor, the Tribunal has considered joint asset ownership, joint liabilities, pooling of financial resources, legal obligations and the sharing of daily household expenses.

27. In relation to any joint ownership of real estate or other major assets, the Tribunal has determined that the couple do not jointly own any major assets or real estate. This is not in the opinion of the Tribunal unusual for a couple of modest means, currently housed in two different countries, planning to live together in Australia. It further notes the evidence provided to indicate the sponsor has needed Government assistance in relation to financial hardship and medical conditions which has culminated in insecure housing at a point in time.

28. The Tribunal accepts the documented evidence, (a substantial range of money transfer receipts emanating from Adelaide, South Australia), that the review Applicant has assisted the visa applicant’s expenses via some substantial money transfers post marriage for several years. It is accepted that it is most likely all the receipts refer to the transfer of funds from the sponsor to the applicant although the Department was concerned by the lack of verifiable evidence of clearly indicating this fact in all instances. This was raised by the Tribunal at the hearing, it accepts the claims made by the parties as accurate.

29. The Tribunal notes that the review applicant relies upon financial support from Centrelink. The Tribunal has considered the proportion of his meagre funds that are sent to his wife on over several years and has concluded that this is a proportionally substantial financial commitment. It was confirmed by both parties the applicant has not worked post their marriage and the sponsor supports her and her adult daughter.

30. The Tribunal received no evidence that the couple have any joint liabilities.

31. Regarding the extent of any pooling of financial resources, especially in relation to major financial commitments, the Tribunal again, notes, that money transfer receipts were presented demonstrating money transferred from the sponsor to the visa applicant over several years. It also appreciates that it is not possible to establish a joint bank account with a foreign national, as a direct result of Australia’s appropriately stringent “money laundering” legislation. It further appreciates that both parties have minimal financial resources. It accepts the sponsor’s assertion during the hearing that he believed it unnecessary as he sends his wife money transfers.

32. Whether one person in the relationship owes any legal obligation in respect of the other. The Tribunal has determined that aside from the usual legal obligations associated with a marriage, the couple have not provided any evidence to indicate any additional legal obligations, nor is there any evidence before it from any source to indicate otherwise.

33. The basis of any sharing of day-to-day household expenses. The Tribunal acknowledges that the couple have lived apart for a considerable time post marriage. In fact, they have only cohabited according to hotel receipts and hotel staff assertions for 2 months in the hotel when the sponsor was in Sri Lanka. The hotel accounts were in the name of Mr and Mrs Silva.

34. There is no evidence of joint liabilities provided to the Tribunal.

35. There is no evidence of Wills or Insurance policies indicating the couple’s interdependence.

36. Therefore, there is little verifiable evidence of day to day sharing of household expenses aside from the claimed financial contribution made by the sponsor to the applicant.  

37. Although requests were made by the department on 24 August 2021 and 1 December 2021 for more evidence of their financial commitment, the parties did not submit further evidence. A claim was made during the hearing that the sponsor uploaded information via his Department account. There is no evidence to support this assertion.

38. The Tribunal notes the statements made by both parties regarding their relationship. Both statements generic in nature providing minimal verifiable evidence. They are almost identical clearly making it impossible to identify the author. The Sponsor claimed under questioning he wrote his letter which his wife copied as she doesn’t communicate in English.

39. The Tribunal places only moderate weight on the evidence in support of the financial aspects of the relationship, whilst accepting the limitations imposed by the ongoing geographic separation.

    Nature of the Household

40. In relation to the nature of the household aspects of the relationship between the applicant and the sponsor, the Tribunal has considered the following.

41. Any joint responsibility for the care of children. The Tribunal notes that the couple do not have children from their marriage, which is unsurprising based upon their stages in life and physical separation. The visa applicant has raised 1 dependent child born in 2001 who lives in their jointly owned home. The sponsor has 2 adult children from a previous relationship and 1 child born in 2013 who is cared for by her mother and he claims to assist in her support. No evidence has been provided to demonstrate these claims.

42. Any sharing of responsibility for housework. The Tribunal notes little opportunity has existed to share household responsibilities other than their brief 2-month cohabitations in Sri Lanka when they met and married. This time was spent in a hotel, so it is not possible to establish a household routine. It notes the aspirational claims once they are reunited. When questioned as to why they stayed in a hotel for 2 months after the marriage, both parties stated it was because of the lack of air-conditioning in the applicant’s home, which the sponsor found difficult. The Tribunal considers this statement reasonable considering his health and age.

43. The Tribunal places little weight on the evidence presented in relation to the nature of the household.

    Social Aspects

44. In relation to the social aspects of the relationship between the applicant and the sponsor, the Tribunal has considered the following.

45. The review applicant and visa applicant claimed that they present themselves to society as a married couple and as a couple in a committed relationship. It again refers to the statements made by the couple asserting this as fact as well as reflecting upon supporting statements and the verbal evidence provided by the couple and the visa applicant’s sister in her brief written statement.

46. There are call logs and electronic communication documents that indicate regular attempts at communication, many of which failed to connect. Sri Lankan electronic infrastructure is not considered overly sophisticated or reliable in the view of the Tribunal. The logs provide very little in the way of any substance that could be interpreted as demonstrating a deep relationship or involvement in each other’s lives or a connection with either persons social or familial circumstances. The sponsor claimed this is because of the poor communication system.

47. Minimal photographic evidence has been provided that indicates a social connection with other parties. None shows the couple with others in a social setting and 2 indicate 1 additional person at what appears to be their wedding ceremony. There appears to be no evidence of friends or family in any setting other than the 1 person at their wedding whose identity is unproven but accepted as likely to be the applicant’s daughter.  

48. Marriage ceremonies and associated rituals are important personal (and familial) milestones in most cultures including Sri Lanka.  As such, it would be expected that these events are well-attended and given a substantial degree of prominence if the couple were recognised as a genuine couple. No suitable explanation was provided by the visa applicant nor the sponsor at the hearing as to why there were minimal guests at the wedding and no photographs showing guests.

49. The Tribunal places minimal weight on the statements made by the hotel staff as to the legitimacy of the relationship.

50. The very brief and undetailed Statutory Declaration made by the applicant’s sister is noted. It is also noted that the applicants did not provide evidence that the family approved of the marriage.

51. When asked why there were no other written statements made in support of the relationship the applicant said she though there could only be 1. This statement was unverified, and no explanation was provided to explain how such an assumption could have arisen.

52. When asked about things they did for the 2 months after the wedding the sponsor stated much of the time was spent preparing a visitor visa application for his wife, which was subsequently rejected and visiting temples for blessings. No supporting evidence was provided.

53. The Tribunal notes and accepts as fact that the couple have been unable to spend much time together due to the travel restrictions imposed by the Covid-19 pandemic, the sponsor’s health, the visitor visa refusal and their financial circumstances. This has naturally made it difficult to amass large quantities of evidence over substantial time periods demonstrating social engagement. However, the almost complete lack of evidence demonstrating the social pillar for the 2 months they were together in Sri Lanka does not support the relationship claims.

54. The Tribunal places substantial negative weight upon the lack of cumulative evidence provided in support of the social aspects of their relationship.

    Nature of the Commitment

    In relation to the nature of the persons’ commitment to each other, the Tribunal has considered the following. The parties’ commitment to each other, the circumstances of their meeting, the development of their relationship, the length of time the parties have lived together, the degree of companionship and emotional support that they draw from each other and their relationship aspirations.

1. The duration of the relationship. The Tribunal was presented with a modest range of written testimony and documentary evidence supported by verbal evidence during the hearing, clearly showing the relationship evolved quickly. It is noted the marriage took place less than 1 week after the couple met following an introduction from a relative of both the sponsor and applicant. Neither party presented verifiable evidence prior to or at the hearing that supported a credible explanation for such a rapid development from their first meeting to a bona fide marriage 6 days later.

2. The length of time they have lived together. As previously stated, the couple have not lived together for lengthy periods of time, due to circumstances the Tribunal accepts are in part out of their control. It accepts that they claim to have lived together as man and wife post the marriage, for the relatively brief period of time available to them in a hotel.

3. The Tribunal like the Department reviewed the parties’ communication evidence. It notes text messages submitted were substantially missed calls, ‘Good morning’ or ‘Good night’ greetings and a series of emojis. Apart from these, the applicant has not provided any other written communication evidence. As the parties have been in a married relationship for more than four years the Tribunal would have expected communications that would indicate general conversation about day-to-day activities, family and friends. The limited communication evidence does not support an integrated or developed relationship.

4. The degree of companionship and emotional support that the persons draw from each other was considered. No evidence has been presented that substantiates the level of companionship or emotional support the couple draw from each other. Any written evidence from the couple or individuals supporting their claims show little depth of information or emotional connection.

5. Whilst it is accepted the couple have limited financial resources, the Tribunal is surprised that no meeting of the couple has taken place in the 4 years post marriage. It has not occurred in Australia, Sri Lanka or any other place should difficulties have arisen in obtaining visitor visas in either of the couple’s countries. It does accept the sponsor’s health was likely to be a restricting factor.

6. There is no evidence of any sort to indicate the couple have undertaken joint holidays or short excursions. This was confirmed during the hearing. There is scant evidence to suggest the parties have spent much time together as a couple.

7. The Tribunal notes the applicant provided a letter dated 04 January 2020 and confirmed her intention to lodge a dependent application for her adult daughter from her first marriage to migrate to Australia once she completes her secondary education in Sri Lanka.

8. On 24 February 2020 the sponsor provided the following information to the Department.

   ‘I Mutumuni Kamal Silva is not satisfied with my relationship with Hasitha Ruklanthi Silva
   After we got married on 01st of August 2019, she refused to share the bed with me and
   she spent majority of time away from me including all nights until I left Sri Lanka on 20th
   September 2019. It is apparent to me that her only intention is to secure 309 visa and
   migrate to Australia. From our conversations I do not feel that she is in love with me. Up to
   now she has not informed our relationship to her family and friends. Under the circumstances I want to withdraw my sponsorship application and cancel 309 visa processing.’

   The sponsor on 2 March 2020 wrote to the Department and retracted the above information statement.

9. The Tribunal is unconvinced by the retraction, nor the verbal explanation provided during the hearing as to why this took place. It notes the claim that the sponsor’s previous wife had obtained access to his email via his daughters iPad which he has also used. This does not explain how the claimed unauthorised usage could have occurred with the statement being made on the correct form using his Departmental account. The same method being used for his retraction. It has formed a view that at the very least the couple were unsure of the relationship. It may also reasonably be interpreted when combined with the admission by the applicant she intended to apply to bring her adult daughter to Australia, to indicate the arrangement was to provide the visa applicant an opportunity to obtain a visa, migrate to Australia and have her daughter join her later. The sponsor possibly benefitting from the visa applicant’s care and companionship as he enters the latter stages of his life.

10. The Tribunal notes the very substantial age difference between the parties, the sponsor is 32 years senior in age. This is culturally unusual in Sri Lanka and could be expected to raise challenges in establishing a meaningful committed relationship.

11. The sponsor has two previous marriages with three children of his own, 1 of whom is still school age. He declared that he finds living arrangements in Australia financially challenging and sought housing assistance from the government of Australia. The sponsor has married a person who already has a child from her previous marriage thus adding more liability upon himself although she is likely to have finished study prior to a potential arrival in Australia. Overall the Tribunal finds this circumstance unusual.

12. The Tribunal places substantial negative weight upon the lack cumulative evidence provided in support of the couple’s commitment to each other.

13. The Tribunal has determined that there is not a demonstrated clear mutual commitment to a shared life together. The Tribunal is not satisfied that there is a mutual commitment to a shared life as a married couple to the exclusion of all others, the relationship is genuine and continuing, and the couple will live together, or not live separately and apart on a permanent basis: s 5F(2)(a)-(d).

14. On the basis of the above the Tribunal is not satisfied that the requirements of s 5F(2) are met at the time the visa application was made and at the time of this decision.

15. Therefore, the visa applicant does not meet cl.309.211 and cl.309.221.

16. For the reasons above, the visa applicant does not satisfy the criteria for the grant of the visa.

    DECISION

17. The Tribunal affirms the decision not to grant the visa applicant a Partner (Provisional) (Class UF) visa.

    Peter Emmerton
    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).