Thiruchelvam (Migration) - [2023] AATA 4627

Thiruchelvam (Migration) [2023] AATA 4627 (8 December 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Mr Nirojan Thiruchelvam
VISA APPLICANT:  Mrs Tharsika Nirojan
REPRESENTATIVE:  Mr Don Susantha Katugumpala (MARN: 9601070)
CASE NUMBER:  2009846
DIBP REFERENCE(S):  BCC2018/3806244
MEMBER:Brygyda Maiden
DATE:8 December 2023
PLACE OF DECISION:  Melbourne
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 08 December 2023 at 7:52pm
CATCHWORDS
MIGRATION –Partner (Provisional) (Class UF) visa - subclass 309 – Tribunal accepts that the marriage was valid –applicant shares his financial resources with the visa applicant – nature of the parties’ household provides a small amount of support for the parties being in a genuine and continuing relationship – parties had been in a relationship for approximately 11 years and married for eight years – couple view their relationship as a long-term one – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5F,65, 359
Migration Regulations 1994, r 1.15, Schedule 2, cls 309.211, 309.221
CASES
He v MIBP [2017] FCAFC 206
Jayasinghe v MIMA [2006] FCA 1700
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 11 June 2020 to refuse to grant the visa applicant a Partner (Provisional) (Class UF) visa under s 65 of the Migration Act 1958 (Cth) (the “Act”).
The visa applicant, a 30-year-old Sri Lankan national, applied for the visa on 18 June 2018 on the basis of her relationship with her 39-year-old 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 (Cth) (the “Regulations”). The primary criteria must be satisfied by at least one applicant.
The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl 309.211 due to the limited evidence before the delegate in support of the parties’ relationship.
On 26 April 2023, a representative of the Registrar of the Tribunal wrote to the review applicant through his representative requesting further information and supporting evidence and providing examples of the types of information that could be submitted. A response was requested by 10 May 2023. The representative submitted a number of documents to the Tribunal which were attached to his 10 May 2023 e-mail.
The review applicant appeared in person before the Tribunal on 22 November 2023 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant by video conference. The Tribunal was assisted by a Tamil (Sri Lankan) interpreter. The parties told the Tribunal that they could understand the interpreter…

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 Thiruchelvam (Migration)

Details

AGLC: Thiruchelvam (Migration) [2023] AATA 4627
Case: [2023] AATA 4627
Decision Date: 8 December 2023

CaseChat Overview and Summary

This matter concerned an appeal before the Administrative Appeals Tribunal regarding a Partner (Provisional) (Class UF) visa, subclass 309. The review applicant sought to have the Tribunal reconsider a decision that had refused the visa application for the visa applicant, who was his spouse. The core of the dispute revolved around whether the relationship between the parties was genuine and continuing, as required for the visa.

The Tribunal was required to determine whether the visa applicant was the "spouse" of the review applicant, as defined by the Migration Act 1958 (Cth). This involved assessing the genuineness and continuing nature of their relationship, considering various aspects including financial, household, social, and commitment elements as outlined in regulation 1.15A of the Migration Regulations 1994. The Tribunal also had to consider evidence of events subsequent to the visa application, provided such evidence logically tended to show the existence or non-existence of facts relevant to the determination of the relationship's status at the time of application.

The Tribunal's reasoning acknowledged discrepancies in the evidence presented by the parties, such as differing accounts of wedding attendance numbers, the duration of a visit to Sri Lanka, and the visa applicant's hobbies. However, it ultimately found that the review applicant and the visa applicant met the criteria for a spousal relationship under section 5F(2) of the Act, both at the time of the visa application and at the time of the decision. The Tribunal also accepted the explanations provided for the discrepancies, attributing them to the nature of the questions asked and language barriers.

Consequently, the Tribunal remitted the application for the Partner (Provisional) (Class UF) visa for reconsideration by the Minister. The direction was that the visa applicant met the criteria specified in cl 309.211 and cl 309.221 of Schedule 2 to the Regulations, leaving the remaining criteria to be assessed.

Orders

Orders of the court

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Background

Background to the litigation

The Tribunal accepts the review applicant’s explanation in relation to why he mentioned make-up and the visa applicant’s explanation as to why she did not could have been attributed to the question the Tribunal asked. For this reason, the Tribunal does not attach any negative weight to this evidence.Background According to the visa applicant’s proof of relationship statement (undated) on the Department file, the parties met on approximately 4 February 2015 in person, but their parents had arranged their marriage proposal in approximately December 2012, and the parties started talking after that. The parties talked for around two years until they were married on 5 February 2015. The spouse visa was granted on 2 December 2015 and the visa applicant arrived in Australia on 24 January 2016. The parties applied for a second stage spouse visa on 17 July 2017. Whilst waiting for approval the application was refused as the visa applicant claimed not to have been aware that the Department of Immigration had sent her a s 56 of the Act request which she did not receive. The visa was refused and the visa applicant claimed not to have received the notification. She learned of the refusal when her employer told her that her work rights ceased in May 2018. On contacting the Department she was advised about the refusal and the parties’ representative informed them that they were out of time for an appeal. The parties decided that the visa applicant should return to Sri Lanka and make an offshore spouse visa application. According to the submissions of the applicant’s representative dated 9 May 2023:Upon receipt of the refusal, the Applicant’s agent handing the matter had advised the Applicant to depart the country, despite the Applicant’s eligibility to remain lawfully in Australia until a determination was made on the application for a Merits review. The Applicant’s spouse chose to follow due process and on the advise [sic] of the Agent duly adhered to the visa conditions to leave Australia in a timely manner before the expiry of her visa. Accordingly, Mrs. Tharsika Nirojan left the country depriving the couple of their time together. Had they been provided the right advise [sic], the Applicant’s spouse would not have under any circumstances taken the decision to leave the country and would have continued to live as a married couple pending the Tribunal outcome. The review applicant gave generally consistent information at the hearing. He told the Tribunal that the visa applicant had come to Australia in 2016 to join him. They both lived in Sunshine until June 2018. He applied for permanent residency for the visa applicant with the assistance of a lawyer but admitted to making a mistake by using the visa applicant’s e-mail. Immigration had requested further information, and the enquiry came to the visa applicant’s e-mail address, and the visa applicant had language issues and did not know how to use e-mail. According to the review applicant his problems were caused by him providing the visa applicant’s email address. The review applicant also indicated that he learned of the visa refusal from the parties’ manager at work. On learning this, he attended Immigration’s office in the city and they told him he had 21 days to apply to the Tribunal, but by the time he learned of this, the period had expired. The visa applicant was given a five-week bridging visa E, and she returned to Sri Lanka. Immigration rejected the application because additional documents they had requested from the parties’ lawyer had not been provided. If the parties had been asked for the documents they would have provided them.

Evidence

Evidence Before The Court

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 visa applicant is the “spouse” (as defined in s 5F of the Act) of the review applicant. Middleton J stated in Jayasinghe v MIMA [2006] FCA 1700 at [35]:This does not mean that evidence subsequent to the visa application does not need to be considered at all. 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. Accordingly, the Tribunal has also had regard to evidence of events subsequent to the date of the visa application.Section 359AA of the Act Towards the end of the hearing, the Tribunal followed the procedure under s 359AA of the Act and put information that the Tribunal considers would be the reason, or a part of the reason, for the affirming the decision that is under review to the review applicant. The Tribunal stated it received information at the hearing from the review applicant and the visa applicant. The information received was:A.the review applicant said there were 200 – 250 people at the parties’ wedding, however, the visa applicant said there were about 100 people;B.the review applicant said he was in Sri Lanka for a period of 2 months in 2022 and the review applicant lived with the visa applicant during that period. However, the visa applicant said that the review applicant was in Sri Lanka for one month and she could not remember the month;C.in relation to the visa applicant’s hobbies and interests, the review applicant said that she likes make-up and making sweet snacks. The visa applicant said she liked making sweet snacks and watching television. The Tribunal explained that the information was relevant to the review because the information may indicate that the review applicant’s relationship with the visa applicant was not genuine. It appears to show that the review applicant’s wedding was not as claimed, the review applicant had limited personal knowledge of the visa applicant’s personal circumstances, and the parties may not have visited and lived with each other as claimed. This may lead the Tribunal to doubt that the parties are in a genuine and continuing relationship and doubt that the parties lived together as claimed. It also casts doubt upon the credibility of some of the review applicant’s and visa applicant’s evidence. In order for the visa applicant to be granted the visa, the Tribunal needs to be satisfied that the review applicant and the visa applicant are in a spousal relationship as per s 5F(2) of the Act. The Tribunal asked the review applicant if he understood what the information is and how the information the Tribunal shared with him was relevant to the review, and the review applicant answered “yes”.

Decision

Reasons for decision

On the basis of the above in the reg 1.15A matters, 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 this decision. Therefore, the visa applicant meets cl 309.211 and cl 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; and·cl 309.221 of Schedule 2 to the Regulations. Brygyda MaidenMemberATTACHMENT - 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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