White (Migration) - [2024] AATA 3868

White (Migration) [2024] AATA 3868 (19 September 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Mrs Laarni Palar White
VISA APPLICANT:  Mr Nirmal Singh Sandhu
REPRESENTATIVE:  Mr Joseph Chan
CASE NUMBER:  2103796
DIBP REFERENCE(S):  BCC2019/2986564
MEMBER:Tegen Downes
DATE:19 September 2024
PLACE OF DECISION:  Brisbane
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(2)(a) of Schedule 2 to the Regulations

Statement made on 19 September 2024 at 12:11pm
CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – subclass 309 – whether the parties have provided false and misleading information – couple represented themselves to other people as being in a married relationship – nature of the commitment is indicative of a married relationship – parties validly married – parties are in a genuine spousal relationship – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5, 65, 375
Migration Regulations 1994, rr 5F, 1.15, Schedule 2, cls 309.211, 309.221
CASES
He v MIBP [2017] FCAFC 206
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 15 January 2021 to refuse to grant the visa applicant (the applicant) a Partner (Provisional) (Class UF) visa under section 65 of the Migration Act 1958 (the Act).
The applicant applied for the visa on 12 June 2019 on the basis of his relationship with his sponsor, the review applicant (the sponsor). 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 delegate refused to grant the visa on the basis that the applicant did not satisfy

cl 309.211(2) of Schedule 2 to the Regulations because the delegate was not satisfied that the applicant was the ‘spouse’ of the sponsor, within the meaning of the Act.
The sponsor appeared before the Tribunal on 27 August 2024 to give evidence and present arguments. The Tribunal also received oral evidence via Microsoft Teams from the applicant and the sponsor’s sister.
The sponsor was represented in relation to the review. The material submitted by the representative did not comply with Tribunal’s requirements and expectations set out in the Migration and Refugee Division Practice Direction. This adversely affected the Tribunal’s ability to carry out its functions in accordance with its objects, as set out in section 2A of the Administrative Appeals Tribunal Act 1975 (Cth).
The file provided to the Tribunal by the department includes a certificate and notification regarding the disclose of certain information to the Tribunal under s375A of the Act. It certifies that disclosure of the material covered by the certificate would be contrary to the public interest because it would disclose lawful methods for preventing, detecting and investigating…

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 White (Migration)

Details

AGLC: White (Migration) [2024] AATA 3868
Case: [2024] AATA 3868
Decision Date: 19 September 2024

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered an application for a Partner (Provisional) (Class UF) visa, subclass 309, made by an applicant from India sponsored by an Australian citizen. The core of the dispute revolved around whether the parties had provided false and misleading information regarding the nature and commitment of their relationship, particularly in light of inconsistencies in their evidence and the timing of key events.

The Tribunal was required to determine if the applicant and sponsor were in a genuine spousal relationship at the time of the visa application, and whether they had misrepresented the nature of their commitment to each other. This involved assessing the credibility of their evidence concerning when they met, when their relationship became romantic, and when they committed to a shared life to the exclusion of others. The Tribunal also had to consider the relevance of events occurring after the visa application date in assessing the relationship at the time of application.

The Tribunal noted significant inconsistencies in the evidence provided by the applicant and sponsor, including discrepancies regarding where and when they first met, and evasiveness regarding the transition to a romantic and mutually exclusive relationship. While the parties represented themselves as being in a married relationship and provided evidence of a wedding ceremony, the Tribunal found the evidence regarding the commitment to a shared life to be contradictory and lacking in clarity. Applying the principles that evidence of events after the application date can be relevant to determining the existence of a partner relationship at the time of application, the Tribunal concluded that the application should be remitted for reconsideration. The Tribunal directed that the applicant be taken to meet criterion cl 309.211(2)(a) of Schedule 2 to the Regulations, indicating that the visa application should be reconsidered by the Minister, with the remaining criteria to be assessed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

In forming a view of the relationship at the time of application, the Tribunal must consider all relevant evidence, which may include evidence of events after the date of application insofar as it assists in the task of determining whether the applicant and the sponsor were in a partner relationship at the time of the application. Evidence of events after 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: Ally v MIAC [2008] FCAFC 49 at [32]–[35]; Jayasinghe v MIMA [2006] FCA 1700 at [35], citing MIEA v Poche (1980) 4 ALD 139.CONSIDERATION OF CLAIMS AND EVIDENCEBackground The applicant is a 39-year-old man from India. He is twice divorced. He claims to be in a married relationship with the sponsor, a 63-year-old Australian citizen who was born in the Philippines. The sponsor is widowed with two adult children. According to the visa application, the applicant first came to Australia in December 2008 as a dependent to his first wife. His visa was cancelled in 2010 after their relationship ended, but the applicant overstayed his visa and remained in Australia unlawfully. The applicant applied for an onshore partner visa in April 2012, sponsored by his second wife. This visa was refused on Schedule 3 criteria grounds. He applied to the Tribunal for review of that decision, but the Tribunal (differently constituted) affirmed the department’s decision in September 2015. The applicant departed Australia in January 2016. He then applied for an offshore partner visa sponsored by his second wife on 19 May 2016. The department refused to grant that visa. The applicant and his second wife were divorced on 18 November 2018. In the present visa application, the couple claim to have met on 24 December 2011 and to have married on 1 February 2019. The visa application nominates the wedding date as the date the applicant and the sponsor committed to a shared life together to the exclusion of all others, whereas the sponsorship form nominates 15 June 2018 as the date of commitment. It is notable that this date is shortly after the applicant’s previous offshore partner visa application (sponsored by his second wife) was refused, that it is before the applicant and his second wife divorced, and that it is four months after the sponsor’s first husband passed away. The applicant and the sponsor both gave oral evidence to the effect that they first met on 24 December 2011 at Snap Fitness. The sponsor gave evidence to the effect that she was doing her morning workout and the applicant was also there doing his workout. I note that this is inconsistent with the sponsorship form submitted with the visa application, wherein the sponsor declared that the couple first met at Anytime Fitness Gym in Springwood. The applicant and the sponsor both gave evidence to the effect that their relationship started as friends and that it later became romantic. However, their evidence as to when this transition occurred was inconsistent and evasive. The applicant was also evasive as to when their relationship became mutually exclusive.

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(2)(a)of Schedule 2 to the RegulationsTegen DownesMemberATTACHMENT - 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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