xxx (Migration) - [2021] AATA 1163

xxx (Migration) [2021] AATA 1163 (5 March 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ms Biyanka Manel Wathukara xxx
CASE NUMBER:  1815057
HOME AFFAIRS REFERENCE(S):          BCC2016/1234373
MEMBER:Meena Sripathy
DATE:5 March 2021
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the application for a Partner (Temporary) (Class UK) visa, with the direction that the applicant meets the following criteria for a Subclass 820 (Partner) visa:
·cl 820.211 of Schedule 2 to the Regulations
·cl 820.221 of Schedule 2 to the Regulations.

Statement made on 05 March 2021 at 12:01pm

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – genuine and ongoing relationship – compelling reasons to waive Schedule 3 criteria – sponsorship limitation – joint bank account – knowledge of each other’s families – joint social activities – relationship motivated by a migration outcome – emotional and physical support to the sponsor – no period of unlawful residence – impact of COVID 19 travel restrictions – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5, 65
Migration Regulations 1994, Schedule 2, cls 820.211, 820.221; Schedule 3; rr 1.03, 1.15, 1.20
CASES
Ally v MIAC [2008] FCAFC 49
Babicci v MIMIA (2005) 141 FCR 285
He v MIBP [2017] FCAFC 206
Jayasinghe v MIMA [2006] FCA 1700
MZYPZ v MIAC [2012] FCA 478
Re MILGEA and Dhillon [1990] FCA 144
Waensila v MIBP [2016] FCAFC 32
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 to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 17 March 2016 on the basis of her relationship with her sponsor. At that time, Class UK contained only one subclass: Subclass 820 (Partner). The criteria for the grant of this visa are set out in Part 820 of Schedule 2 to the Migration Regulations 1994 (Cth) (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 21 May 2018 on the basis that the visa applicant did not satisfy cl 820.211(2)(a) because the delegate was not satisfied the applicant and sponsor were in a genuine spouse relationship as that term is defined in s.5F of the Act at time of application. The delegate also found she did not met the requirements of cl.820.211(2)(d)(ii) as she was not the holder of a substantive visa at time of application and does not meet Schedule 3 criterion 3001 and was not satisfied there are compelling reasons to waive the Schedule 3 requirements. The delegate also found the applicant does not meet cl. 820.221.
The applicant made an application for review of this decision to the Tribunal on 23 May 2018.
In…

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: xxx (Migration) [2021] AATA 1163
Case: [2021] AATA 1163
Decision Date: 5 March 2021

CaseChat Overview and Summary

This matter concerned an appeal by an applicant for a Partner (Temporary) (Class UK) visa, Subclass 820, against the delegate's decision to refuse the application. The applicant, a Sri Lankan national, was sponsored by an Australian citizen. The delegate had refused the application on the grounds that the applicant and sponsor were not in a genuine spouse relationship at the time of application or decision, and that there were no compelling reasons to waive Schedule 3 criteria.

The Tribunal was required to determine whether the applicant and sponsor were in a genuine and continuing spouse relationship, both at the time of the visa application and at the time of the Tribunal's decision. Additionally, the Tribunal needed to consider whether there were compelling reasons to waive the Schedule 3 criteria, which typically apply when an applicant does not hold a substantive visa at the time of application.

The Tribunal applied the definition of "spouse" under section 5F of the Migration Act 1958 (Cth), which requires a valid marriage, a mutual commitment to a shared life to the exclusion of others, a genuine and continuing relationship, and cohabitation. The Tribunal considered all circumstances of the relationship, including financial, household, social aspects, and commitment to each other, as outlined in regulation 1.15A(3) of the Migration Regulations 1994. Crucially, the Tribunal accepted that evidence of subsequent events could be used to infer the existence of the relationship at the time of application. After reviewing substantial documentary and oral evidence, including evidence of joint finances, living arrangements, social activities, and support from friends and family, the Tribunal was satisfied that the applicant and sponsor were in a genuine spouse relationship at the time of the decision. The Tribunal also found that the evidence supported a finding that they were in a genuine spouse relationship at the time of application, despite initial concerns.

Consequently, the Tribunal remitted the application for the visa to the Minister with a direction that the applicant met the criteria for a Subclass 820 (Partner) visa concerning the genuine spouse relationship and the waiver of Schedule 3 criteria. The Minister was to consider the remaining criteria for the visa.

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 Information in the application forms indicates the applicant is a 52 year old Sri Lankan national. She is sponsored by Sellapperumarage Ranjana Lal Fernando, who is a 57 year old Sri Lankan born Australian citizen. The sponsor was previously married and provides information that he sponsored both his previous partners for visas in 1996 and 2007. The applicant was previously married from 1998 to 2010 and had one child of this marriage. The parties indicate they met on 12 August 2015, committed to a shared life together in September and married on 30 December 2015. The applicant has a mother, two siblings and a son (born in 2006) residing in Sri Lanka. It is indicated the sponsor has parents and one sibling residing in Sri Lanka and four adult children (born between 1987 and 1999), three of whom reside in Australia and one in Sri Lanka. On 16 April 2018 the Department invited the applicant to provide submissions addressing Schedule 3 criteria 3001 or whether there are compelling reasons not to apply these criteria and to provide further evidence in support of her relationship with the sponsor. On 20 April 2018 the applicant responded with a submission from her representative and supporting documents. It was submitted that the sponsor was sick at the time she lodged her visa application and she was unable to return to Sri Lanka at that time due to his circumstances. It was also submitted that she was unaware at that time that she did not hold a substantive visa and ‘did not disclose the humanitarian visa application she made’. The following evidence in support of the relationship was provided to the Department: ·A Statutory Declaration dated 20 April 2018 from the applicant;·photos of the couple; ·Joint electricity bill for period from 9 February 2018·Joint bank statement for period from January to March 2018 (referred to in delegate’s decision record but not provided to Tribunal in BCC2016/1234373) ·Handwritten Residential Tenancy Agreement commencing 7 October 2016 without an end date. On 21 May 2018 the delegate refused the application, having considered the evidence provided. The delegate was not satisfied the applicant and sponsor were in a genuine spouse relationship at time of application and time of decision, or that there were compelling reasons for not applying the Schedule 3 criteria. Before the Tribunal the applicant provided a bundle of evidence, delivered by hand to the Tribunal on 29 November 2019, including NAB bank statements for the joint account for periods from July 2016 to date; tenancy agreements in their joint names for periods from December 2015 to date; correspondence addressed to each of them at the same address; sponsor’s tax returns showing declaration of applicant as spouse; sponsor’s superannuation account (claiming that applicant is nominated sole beneficiary- this however is not indicated on the documents provided); support letters from 5 friends and community members; evidence of money transfers to applicant’s brother for expenses of her son; evidence of sponsor’s trip to Sri Lanka to visit applicant’s ill mother who subsequently passed away.

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 820 visa.DECISION The Tribunal remits the application for a Partner (Temporary) (Class UK) visa, with the direction that the applicant meets the following criteria for a Subclass 820 (Partner) visa:·cl 820.211 of Schedule 2 to the Regulations·cl 820.221 of Schedule 2 to the RegulationsMeena SripathyMemberATTACHMENT - Extract from Migration Regulations 19941.15A Spouse(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

Following the hearing the following further evidence was submitted: ·Statement from Prasanna Kariyawasam, founding member of Sri Lanka Lions Sports Club, who knows the sponsor in that context since 1993 and attests to his knowledge of the relationship and states his opinion that it is a genuine relationship based on observations of the applicant and sponsor together since 2016 ·Statement from Don Perakum Wellappuli Arachchige, President of Sinhala Association of Australia, who knows the sponsor in that context and attests to having introduced the applicant and sponsor to each other, attended their marriage and states his opinion that it is a genuine relationship based on observations of the applicant and sponsor together when socialising on numerous occasions. ·Annotated photos showing the sponsor with members of the applicant’s close family in Sri Lanka, including her son, brother and sister and their families and their attendances at various special occasions including birthday celebrations, weddings and the funeral of the sponsor’s father. FINDINGS AND CONSIDERATION For the following reasons, having carefully considered all of the evidence before the Department and Tribunal, including the substantial amount of additional documentary evidence provided to the Tribunal since lodgement of the review in 2018, the passage of time since then and the oral evidence of the applicant and sponsor at the hearing, the Tribunal is satisfied the applicant and sponsor are in a genuine spouse relationship as at the time of its decision. Although as discussed further below, it had some initial concerns about the circumstances surrounding the inception of the relationship, taking into consideration the substantial evidence provided since that time, the Tribunal is satisfied that the evidence also supports a finding that they were in a genuine spouse relationship at time of application on the basis that the weight of evidence now before it tends logically to support this conclusion.[1][1] Ally v MIAC [2008] FCAFC 49 at [32]–[35]; Jayasinghe v MIMA [2006] FCA 1700 at [35], citing MIEA v Pochi (1980) 4 ALD 139 at [24] per Deane J which held that evidence of subsequent events may be taken into account if it ‘tends to logically show the existence or non-existence of’ the relationship at that particular time’. The Tribunal’s assessment of evidence and reasons for these conclusions follow. Whether the parties are in a spouse or de facto relationship Clauses 820.211(2)(a) and 820.221 require that at the time the visa application was made, and at the time of this decision, the 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 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 of the circumstances of the relationship. This includes evidence of the financial and social aspects and the nature of the parties’ 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) are effectively questions which must be answered: He v MIBP [2017] FCAFC 206.Are the parties validly married?