To (Migration) - [2023] AATA 4331

To (Migration) [2023] AATA 4331 (19 December 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Mr Van Hong To
VISA APPLICANT:  Mrs Thi My Linh Phan
REPRESENTATIVE:  Mr Nick Koenig (MARN: 9251516)
CASE NUMBER:  2011894
DIBP REFERENCE(S):  BCC2019/2380101
MEMBER:Cheryl Cartwright
DATE:19 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
·cl 309.221 of Schedule 2 to the Regulations

Statement made on 19 December 2023 at 4:47pm
CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – genuine and continuing relationship – validly married – money transfers – sponsor’s multiple visits to Vietnam – joint social activities and family events – plan to purchase a home – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5, 65, 360
Migration Regulations 1994, Schedule 2, cls 309.211, 309.221; r 1.15
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 3 July 2020 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 applied for the visa on 4 May 2019 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 visa applicant did not satisfy cl 309.211(2) because there was insufficient evidence to demonstrate that the visa applicant was the spouse, as defined under s 5F of the Act, of a person who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen. The visa applicant therefore did not satisfy cl 309.211.
On 21 July 2020 the Tribunal received an application from the review applicant for a review of the decision. Upon reviewing the submissions and further evidence, the Tribunal considered that, based on the material before it, a hearing was not required and that the review should be decided in the review applicant’s favour pursuant to s 360(2)(a). The Tribunal cancelled the hearing that was scheduled for 6 February 2024.
The review applicant was represented in relation to the review.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE

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.

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Details

AGLC: To (Migration) [2023] AATA 4331
Case: [2023] AATA 4331
Decision Date: 19 December 2023

CaseChat Overview and Summary

This matter concerned an application for a Partner (Provisional) (Class UF) visa, subclass 309. The central dispute revolved around whether the visa applicant met the requirements of cl 309.211, specifically whether they were the spouse of an Australian citizen at the time of the application and continued to be so at the time of the Tribunal's decision, as required by cl 309.221. The Tribunal was tasked with considering all relevant evidence, including events subsequent to the visa application, to determine the genuineness and continuing nature of the claimed married relationship.

The legal issues before the Tribunal included whether the parties were validly married for the purposes of the Act, which necessitates a mutual commitment to a shared life as a married couple to the exclusion of others, and whether the relationship was genuine and continuing. The Tribunal was required to assess these matters by having regard to all circumstances of the relationship, including the financial and social aspects, the nature of the household, and the commitment to each other, as outlined in reg 1.15A(3) of the Migration Regulations 1994. Each specific matter within reg 1.15A(3) was to be addressed as a distinct question.

The Tribunal reasoned that evidence of events subsequent to the visa application could logically demonstrate facts relevant to the existence or non-existence of the claimed marital relationship at the time of application. It acknowledged that the weight and relevance of such evidence were matters for the Tribunal to determine. In this instance, the Tribunal concluded that the appropriate course was to remit the application for reconsideration by the Minister. The Tribunal directed that the visa applicant met the criteria under 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

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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 satisfies cl 309.211 by meeting the requirements of subclause (2) or (3). As Middleton J stated in Jayasinghe v MIMA [2006] FCA 1700 at [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. In deciding this matter, the Tribunal has also had regard to evidence of events subsequent to the date of the visa application. In the circumstances of this case, the Tribunal considers that it is appropriate to make findings about cl 309.221 (a time of decision criterion) as well.Whether the parties are in a spouse or de facto 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. In the present case the visa applicant claims to be the spouse of the review applicant who is an Australian citizen. A copy of his passport is on file. ‘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?

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 RegulationsCheryl CartwrightMemberATTACHMENT - 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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