1410758 (Migration)

[2015] AATA 3844

1410758 (Migration) [2015] AATA 3844 (14 December 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Victoria Rosanna Elodie Faure-Evrard

CASE NUMBER:  1410758

DIBP REFERENCE(S):  CLF2011/222286

MEMBER:John Billings

DATE:14 December 2015

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Partner (Residence) (Class BS) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 801 (Partner) visa:

·cl.801.211 of Schedule 2 to the Regulations.

·cl.801.221 of Schedule 2 to the Regulations.

Statement made on 14 December 2015 at 3:36pm

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 5 June 2014 to refuse to grant the applicant a Partner (Residence) (Class BS) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant, Ms Faure-Evrard (also known as Faure), applied for the visa on 28 December 2011 on the basis of her relationship with her sponsor, Mr David Jabbour, who is an Australian citizen by descent. At that time, Class BS contained only one subclass: Subclass 801 (Partner). The criteria for the grant of this visa are set out in Part 801 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. Relevantly to this matter the primary criteria include cl.801.221 and cl.801.221.

3. The delegate refused to grant the visa on the basis that Ms Faure-Evrard did not satisfy cl.801.221.  The delegate was not satisfied that Ms Faure-Evrard and Mr Jabbour were in a genuine and continuing partner relationship. 

4. Ms Faure-Evrard appeared before the Tribunal on 30 October 2015 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Jabbour.  They told the Tribunal in effect that it was not proposed that Mr Jabbour’s father, Mr Samuel Jabbour, would attend.  He had a recent injury that caused him some difficulty with his mobility. 

5. Ms Faure-Evrard is a 23 year old national of France.  She works as a beauty therapist.  Mr Jabbour is aged 25 years.  He works as a personal trainer and studies part time.  He holds dual Australian-French nationality.  He was born in France to a French mother and an Australian father.  He has been to Australia numerous times since he was born.

6. According to the visa application and material in support, Ms Faure-Evrard and Mr Jabbour were introduced to each other by a mutual friend in Cannes in August 2009.  They began seeing each other after that.  Ms Faure-Evrard was living at a boarding school but on 14 November 2009, when Mr Jabbour visited Ms Faure-Evrard at her parents’ home, they decided they would live together.  At the time he was aged 19 years and she was 17.  In January 2010 they moved in with Mr Jabbour’s father in Mougins, near Cannes.  In mid-2010 Mr Jabbour’s father decided to re-settle in Australia.  Ms Faure-Evrard and Mr Jabbour rented an apartment in Nice.  The apartment was rented in Ms Faure-Evrard’s father’s name and the rent was paid by Mr Jabbour’s father.  At the end of 2010 Ms Faure-Evrard and Mr Jabbour visited Australia together for two-three weeks.  During this period Mr Jabbour bought an engagement ring and, on 1 January 2011, he proposed to Ms Faure-Evrard.  Ms Faure-Evrard and Mr Jabbour next visited Australia together from September 2011 to December 2012.  They returned to Australia together at the beginning of 2013.  Ms Faure-Evrard was granted a Subclass 820 visa on 25 June 2013. 

7. Ms Faure-Evrard and Mr Jabbour are now married.  They were married in Australia on 21 June 2015 and in August 2015 they travelled to France where they had a “renewal of vows” ceremony and a celebration with family and friends. 

8. The Department’s file includes a copy of the relevant pages of  Ms Faure-Evrard’s and Mr Jabbour’s passports, photographs taken in Australia and France, statements and statutory declarations in support of application, bank statements, utilities accounts and similar documents, and copy Facebook pages.  There are also documents relating to the accommodation in Nice and documents relating to a family trust that owns the property where Ms Faure-Evrard and Mr Jabbour have been living in Australia with Mr Jabbour’s father.  Ms Faure-Evrard provided a copy of the marriage certificate to the Tribunal with further statements, wedding photographs and copy Facebook pages.  She also provided evidence of a joint bank account that was opened relatively recently.  Soon after the hearing Ms Faure-Evrard submitted statutory declarations made by Ms Emily Bonello and Mr Neville Rawlings, two Australian friends.

9. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in the present case is whether Ms Faure-Evrard and Mr Jabbour have been and remain in a genuine and continuing partner relationship. 

11. The delegate expressed a number of concerns about the evidence in support of the application.  Some of the delegate’s specific concerns will be addressed below in the context of the financial aspects of the relationship; the nature of the household; the social aspects of the relationship; and the nature of the persons’ commitment to each other.  In summary, the delegate considered that there was insufficient evidence that Ms Faure-Evrard and Mr Jabbour had combined their financial arrangements, or that the relationship was acknowledged outside their immediate families.  The delegate also considered that some statements made by Ms Faure-Evrard during a telephone interview conducted before the date of the primary decision indicated that while she and Mr Jabbour shared accommodation they were not living as de facto partners. 

12. The Tribunal has received important evidence that was not available to the delegate.  There is evidence that Ms Faure-Evrard and Mr Jabbour are now married.  But there is also evidence that their financial arrangements developed as Ms Faure-Evrard and Mr Jabbour moved from being students to starting their careers.  There is now evidence from persons outside their immediate family – Ms Bonello and Mr Rawlings.  Ms Bonello has declared that she has known the couple for two and a half years.  Mr Rawlings has declared that he has known them for three years.  The Tribunal has heard oral evidence from Ms Faure-Evrard and Mr Jabbour and been able to test the evidence.  The Tribunal found them to be impressive witnesses who responded directly to questions.  Their evidence was internally consistent and consistent with the evidence given by the other.  The evidence is supported by photographs and other documents.  The Tribunal accepts their evidence as credible.

13. Put briefly, this case has particular features that have meant that the kind of evidence that would normally be expected to exist was not available from the outset.  The Tribunal is satisfied by the oral evidence, supported by the documentary evidence, that at the time the relationship began Ms Faure-Evrard and Mr Jabbour were students and that, financially, they were very reliant on Mr Jabbour’s father especially.  In Australia they have been living in the same house as Mr Jabbour’s father though, as their evidence and his statutory declarations indicate, they have been living as a couple.  Initially, their financial arrangements were atypical because as students they had separate accounts but also because the family trust managed their accommodation and Mr Jabbour’s father took responsibility for utilities bills.  Further, the evidence indicates that most of Ms Faure-Evrard’s and Mr Jabbour’s friends are in France.  Their Australian friends are fewer in number and have not been friends for as many years. 

14. In an undated statement submitted to the Tribunal in 2014 Ms Faure-Evrard expressed her point of view concerning the telephone interview with the delegate.  She suggested that there were misunderstandings but also stated that she was guarded in responding to personal questions, not feeling sure that the Department would proceed in that manner rather than by inviting her, through the migration agent she had at the time, to a formal interview.  In particular she said that she responded to a question about when Mr Jabbour returned home from work by saying when he was to return that day.  As she said it was late at night the delegate took that to indicate, for instance, that her and his daily routines were not compatible.  The delegate considered that statement to contradict statements made in her statutory declaration that she and he shared household tasks.  The consequence of statements made by Ms Faure-Evrard (or perceived to have been made by her) during the interview, the lack of evidence of combined financial arrangements and the paucity of evidence from persons outside Mr Jabbour’s close family, was that the delegate was not satisfied that the relationship was genuine and continuing.

15. Having had the opportunity to hear both from Ms Faure-Evrard and Mr Jabbour and to consider the further evidence submitted, the Tribunal has come to a different conclusion to the delegate.  The Tribunal is satisfied that the relationship is genuine and continuing.    

    Whether the parties are in a spouse or de facto relationship

16. Relevantly to this matter, cl.801.221(2)(c) requires that at the time of this decision, the applicant is the spouse of the ‘sponsoring partner’, who must be an Australian citizen or Australian permanent resident or an eligible New Zealand citizen who was specified in the related Subclass 820 visa application as the spouse or de facto partner of the applicant. In the present case the applicant claims to be the spouse of the sponsor who is an Australia citizen and was identified in the Subclass 820 visa application. On the evidence before it, the Tribunal is satisfied that the sponsor is the ‘sponsoring partner’ of the applicant.

17. ‘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 husband and wife 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 as to 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 sponsor’s household and their commitment to each other as set out in r.1.15A(3), which is extracted in the attachment to this decision.

    Are the parties validly married?

18. If the parties are validly married, they may meet the requirements of a spousal relationship, but not a de facto relationship.  On the basis of the marriage certificate and the oral evidence the Tribunal finds that the parties are married to each other under a marriage that is valid for the purposes of the Act as required by s.5F(2)(a).

    Are the other requirements for a spousal relationship met?

    Financial aspects of the relationship

19. Ms Faure-Evrard and Mr Jabbour gave evidence about the way the financial aspects of their relationship have developed from the time they were students until the present.  The financial support provided especially by Mr Jabbour’s father and the involvement of the family trust, of which both Mr Jabbour and his father are beneficiaries, has meant that the financial aspects of the relationship have not developed in a typical way.  Even when Ms Faure-Evrard and Mr Jabbour had separate student bank accounts (with the same bank, it is noted) there was evidence that each gave the other access to their account as the other required. 

20. Ms Faure-Evrard and Mr Jabbour still have their individual accounts but they now also have a joint bank account that they use primarily for saving towards the purchase of their own home (or an investment property should Mr Jabbour’s father move out and they decide to remain where they are).  The bank statements submitted to the Tribunal show that there is a joint account but they do not show a significant savings history.  The evidence did not indicate that Ms Faure-Evrard or Mr Jabbour have given much thought to superannuation or the possibility of nominating the other as fund beneficiary.  So far, still early in their working lives, Ms Faure-Evrard and Mr Jabbour do not jointly own real estate or other major assets but the Tribunal accepts that they have been making plans in relation to that.  The Tribunal further accepts the evidence that, while they are not liable, directly if at all, for accommodation and utilities costs they share day to day expenses including shopping and petrol.

21. Generally, the Tribunal places only limited weight on this consideration. 

    Nature of the household

22. On the basis of the oral evidence and the supporting documents, the Tribunal finds that Ms Faure-Evrard and Mr Jabbour have lived together in France and in Australia since early 2010. 

23. There are no children of the relationship but Ms Faure-Evrard and Mr Jabbour gave evidence about their plans to start a family when their careers are better established.  The Tribunal accepts that Ms Faure-Evrard and Mr Jabbour have since early 2010 lived as a couple even though they have shared a house with Mr Jabbour’s father for a considerable period of time.  The Tribunal is further satisfied that they share responsibility for shopping, cooking and general housework and manage that according to their daily needs and any impact that their work and Mr Jabbour’s study might have from time to time. 

24. The Tribunal places substantial weight on this consideration.  

    Social aspects of the relationship

25. As noted, there was limited evidence before the delegate concerning the social aspects of the relationship.  That evidence was provided by close family members and a close friend of Mr Jabbour’s father.  The Tribunal accepts the explanation for the state of the evidence – that most of Ms Faure-Evrard’s and Mr Jabbour’s friends, their longstanding friends, are in France. 

26. The Tribunal now has evidence in the form of statutory declarations by two Australian friends.  On the basis of that evidence but also the oral evidence given by Ms Faure-Evrard and Mr Jabbour and the evidence that supported their evidence – especially the statutory declarations, photographs and Facebook pages - the Tribunal finds that Ms Faure-Evrard and Mr Jabbour have  represented themselves to their families and friends in Australia and France as being de facto partners and now spouses.  The Tribunal accepts that they have undertaken various social activities in evidence in Australia and in France and the Tribunal has had regard to the opinion of close family members about the nature of the relationship. 

27. The Tribunal places weight on this consideration.  

    Nature of persons’ commitment to each other

28. The Tribunal accepts the evidence that Ms Faure-Evrard and Mr Jabbour have been in a committed relationship since late 2009.  The relationship has been maintained over a number of years.  The Tribunal heard directly from them about what each of them means to the other.  They gave consistent evidence about that and about their future plans together including their plans to have a family.   The statutory declarations made by family members and friends support the evidence that they gave.  

29. The Tribunal places substantial weight on this consideration.  

30. In the primary decision the delegate noted, among other things, that during the telephone interview Ms Faure-Evrard made no reference to her engagement or wedding plans.   In her written statements and oral evidence Mr Faure-Evrard explained the decision-making process that she and Mr Jabbour undertook (taking into account matters including the seasons and the cost of travel for wedding guests) before they ultimately decided upon a small wedding in Australia followed by a much larger ceremony and celebration in France.  Both gave evidence to the Tribunal about their plans for a honeymoon in 2016.  Taking into account all the evidence the Tribunal would not consider it to be significant if Ms Faure-Evrard did not mention her and Mr Jabbour’s wedding plans to the delegate when he telephoned her. 

31. Having regard to the above matters the Tribunal finds that Ms Faure-Evrard and Mr Jabbour have had, since late 2009, and continue to have a mutual commitment to a shared life as (now) husband and wife to the exclusion of all others and that the relationship between them has been and remains genuine and continuing.  The Tribunal heard evidence that there were occasions in 2014 when Ms Faure-Evrard had a holiday with her father in Thailand, and when she travelled to France alone to visit her family.   Bearing that in mind the Tribunal finds that since the relationship began, Ms Faure-Evrard and Mr Jabbour have not lived separately and apart on a permanent basis and they do not now live separately and apart on a permanent basis.

32. 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 801 visa.

    DECISION

33. The Tribunal remits the application for a Partner (Residence) (Class BS) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 801 (Partner) visa:

    ·cl.801.211 of Schedule 2 to the Regulations.

    ·cl.801.221 of Schedule 2 to the Regulations.

    John Billings
    Senior Member

    
    

    ATTACHMENT - Extract from Migration Regulations 1994

    1.15A     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).