1407538 (Migration)

[2015] AATA 3022

1407538 (Migration) [2015] AATA 3022 (2 July 2015)

DECISION RECORD       

DIVISION:  Migration & Refugee Division

REVIEW APPLICANT:  Mr Robin James Townsend

VISA APPLICANT:  Mrs Chinenye Chukwu

CASE NUMBER:  1407538

DIBP REFERENCE(S):  OSF2014032479

MEMBER:Helena Claringbold

DATE:2 July 2015

PLACE OF DECISION:  Sydney

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 02 July 2015 at 3:45pm

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 Immigration on 23 April 2014 to refuse to grant the visa applicant, Mrs Chinenye Chukwu, a Partner (Provisional) (Class UF) visa under s.65 of the Migration Act 1958 (the Act).

2. Mrs Chukwu was born on 16 January 1986.  She is a national of Nigeria.  An application for the visa was made on 18 February 2014 on the basis of her relationship with her sponsor, Mr Robin James Townsend.  Mr Townsend was born on 4 April 1951.  He is an Australian citizen, born in Australia (refer: D1 f33).

3. The delegate refused to grant the visas on the basis that Mrs Chukwu did not satisfy cl.309.211 and cl.309.221 because the delegate was not satisfied that Mrs Chukwu is the spouse of Mr Townsend.

4. Mr Townsend requested review of the delegate’s decision.  He appeared before the Tribunal on 25 June 2015 to give evidence and present arguments and provided the Tribunal with a copy of the delegate’s decision record. The Tribunal also received oral evidence from            Ms Chukwu.

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The issue in the present case is whether Mrs Chukwu is the spouse of Mr Townsend as defined in s.5F of the Act.

6. The Tribunal has taken into consideration all the evidence in the Department’s file OSF2014/032479, folio numbered 1-130, and the Tribunal file 1407538, folio numbered 1-351 and the oral evidence given by both parties at the Tribunal hearing.

   What is the background of this case based on all the evidence before the Tribunal?

7. Mrs Chukwu is 29 years old.  Her parents are deceased.  She has a brother, Somadina Nngji who resides in Malaysia.  She has studied English language (refer: D1f26) and is completing a Diploma in Business Programme, at the President College in Malaysia (refer: D1 f65).  She has resided in Malaysia since 2011.

8. Mr Townsend is 64 years old. He has been previously married to Ms Pauline Joy Townsend.  There are 2 children, Scott born on 5 October 1970 and Christy born on 15 September 1976, from this marriage.  The marriage began on 28 March 1970 and ended in divorce on 24 September 2011.  His mother Betty and sisters Helen and Julie reside in Australia.  He is employed as a steam turbine superintendent on various power stations and industrial steam turbines for Alston Ltd.

9. In November 2012 the parties met online.  On 12 February 2013 they committed to a shared life together.  On 9 June 2013 the parties met in Lagos, Nigeria.  On 13 June 2013 they married in Ikoyi, Nigeria.  Mr Townsend has travelled to Malaysia on 5 occasions to be with Ms Chukwu.

10. On 29 August 2014 the parties have lodged a second subclass 309 application, through Global Migration Solutions in Malaysia.

    Is the applicant the spouse or de facto of an eligible citizen?

11. The Tribunal is satisfied the review applicant is at the time of application and time of decision an Australian citizen (refer: D1 f33).

    Are the parties in a spouse or de facto relationship? Are they validly married?

    The parties claim they are the spouse of the other. ‘Spouse’ is defined in s.5F of the Act: s.5F(2)(a)-(d). If they are validly married, they may meet the requirements of a spousal relationship. The Tribunal is satisfied that 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) (refer: D1 f68).

    Are the other requirements for a spousal relationship met?

12. The Tribunal must consider all the circumstances of the relationship (including the matters specified in r.1.15A) in determining whether the parties are in a “married relationship” as defined by s.5F(2).

13. The Tribunal has had regard to the parties’ financial relationship; the nature of their household; the social aspects of the relationship; and the nature of their commitment to each other. On these aspects the Tribunal has considered all the evidence before it and is satisfied the facts of this case are as follows:

14. The sponsor has provided financial assistance to the visa applicant on a regular basis and Westpac payment summaries supports this.  The money is used to finance the visa applicant’s education and living expenses.  When the sponsor visits the visa applicant they share financial expenses.  The visa applicant is the beneficiary in the sponsor’s will and superannuation fund.  The parties anticipate combining their financial affairs when they cohabitate permanently.   Outside of marriage, they owe no legal obligation to each other.  They will establish a permanent household in Australia.  Their families are aware that they are in a married relationship.  It is also clear that to their family and acquaintances, including colleagues, that they represent themselves as being married to each other and this is supported by third party statutory declarations. The sponsor has been back to Malaysia numerous times to be with the applicant.  They have agreed knowledge of their routines, past history and future plans.  They have been married now for more than two years and plan to have children together if that is possible.

15. In view of all the above, the Tribunal is satisfied that there is broad-based public recognition of the parties’ relationship. The Tribunal is satisfied by the parties’ oral evidence at hearing that they demonstrate a sound knowledge of each other’s lives which is commensurate with a couple in a genuine and ongoing spousal relationship. In respect of whether there is a mutual commitment to a shared life as husband and wife to the exclusion of all others, the Tribunal accepts the parties’ oral evidence as presented at hearing.

    FINDINGS

16. Given these findings the Tribunal is satisfied that at the time the visa application was made and at the time of this decision the parties were in a spousal relationship.

17. Therefore the visa applicant meets cl.309.211 and cl.309.221.

18. 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

19. 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

    Helena Claringbold  2 July 2015
    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).