1418626 (Migration)

[2015] AATA 3814

1418626 (Migration) [2015] AATA 3814 (4 December 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Redmond Samuel Reece Beales

CASE NUMBER:  1418626

DIBP REFERENCE(S):  OSF2008/000304

MEMBER:Wendy Banfield

DATE:4 December 2015

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Partner (Migrant) (Class BC) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 100 (Spouse) visa:

·cl.100.221 of Schedule 2 to the Regulations

Statement made on 04 December 2015 at 4:08pm

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 24 October 2014 to refuse to grant the visa applicant a Partner (Migrant) (Class BC) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 18 September 2008 on the basis of his relationship with his sponsor. At that time, Class BC contained two subclasses: Subclass 100 (Spouse) and 110 (Interdependency). The applicant has made claims only for the Subclass 100 visa and does not claim to be in an interdependent relationship as required by Subclass 110. 

3. The criteria for the grant of a Subclass 100 visa are set out in Part 100 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.

4. The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy cl.100.221 because at the time of decision, there was no evidence that demonstrated the applicant continued to be the spouse of the sponsor.

   Background

5. The applicant is a citizen of the United Kingdom and is currently 29 years old. He had been living in New Zealand since 2001 prior to coming to Australia He works as a hotel manager in Balmain and lives in Rozelle.

6. The sponsor is an Australian citizen and is currently 33 years old. She manages the hotel in Balmain jointly with the applicant and lives with him in Rozelle.

7. The applicant and sponsor were both working for a modelling agency when they met in New Zealand in 2006 and began a relationship. On 18 September 2008 an application for a Partner (Provisional) (Class UF) visa and Partner (Migrant) (Class BC) was lodged on the basis of the applicant’s de facto relationship with the sponsor. On 28 October 2008 a Subclass 309 visa was granted and the applicant arrived in Australia on 29 October 2008. The parties were married in Australia on 11 February 2012.

8. On 29 July 2010 the Department sent a request letter to the applicant regarding the Subclass 100 visa but there was no response. Between August and October 2014 the Department attempted to contact the applicant but was unable to do so. A decision to refuse the application for the Subclass 100 visa was made on 24 October 2014.

9. The applicant appeared before the Tribunal on 17 November 2015 to give evidence and present arguments. The Tribunal also received oral evidence from Alysha Dawn Beales, the applicant’s partner and the applicant and sponsor’s employer, Timothy Condon.

10. The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. The issue in the present case is whether the applicant is the spouse of the sponsor at the time of decision.

    Whether the parties are in a ‘spouse’ relationship

13. Clause 100.221 requires that the applicant meet one of five alternative requirements. These include cl.100.221(2) and (2A) which require, amongst other things, that at the time of this decision, the applicant is the spouse of the ‘sponsoring spouse’. Unless the applicant was granted a Subclass 309 visa by Ministerial intervention, the ‘sponsoring spouse’ is the person who was specified as the applicant’s spouse or intended spouse in the related Subclass 309 application. In the present case the applicant claims to be the spouse of the sponsor,  a ‘sponsoring spouse’ within the meaning of that term.

14. ‘Spouse’ is defined in r.1.15A of the Regulations and provides that a person is the spouse of another where the two persons are either in a married or de facto relationship.  Persons are in a de facto relationship if they are not validly married to each other. 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: r.1.15A(1A). 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 parties’ 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?

15. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. On the evidence, the parties were married to each other under a marriage that is valid for the purposes of the Act as required by r.1.15A(1A)(a).

    Are the other requirements for a spousal relationship met?

    Financial aspects of the relationship

16. The Tribunal considered the joint ownership of assets, joint liabilities, the extent of pooling of financial resources, any legal obligations owed to the other party and any sharing of day-to-day household expenses. The applicant submitted a large number of Commonwealth Bank joint account statements covering 2014 and 2015. The applicant and sponsor’s wages are paid into the account and a wide range of direct debits and expenses are paid from it. The Tribunal accepts that the bank account is evidence of pooling of financial resources. The applicant and sponsor do not own property but they rent a house together in Balmain and provided lease documents in evidence. Copies of utilities bills in joint names were also submitted.

17. The Tribunal is satisfied that the applicant and sponsor have combined the financial aspects of their lives and share daily living expenses.

    Nature of the household

18. The applicant and sponsor do not currently have responsibility for the care and support of children; however, they live together and share household responsibilities. They gave evidence about the share arrangement in place where a friend sub-lets a room in their residence. The parties were able to describe the occupation of the rooms and living areas in the house and provided a copy of their lease agreement for the property in Rozelle. The witness provided evidence in support of the relationship and confirmed the applicant and sponsor live together. The friend who sub-lets a room in the house is also an employee of the witness and the Tribunal accepts the evidence of Mr Condon and the applicant and sponsor regarding the nature of the household.

    Social aspects of the relationship

19. The applicant and sponsor demonstrated broad knowledge of each other’s families, friends and social activities. They gave consistent evidence about their most recent social outings and their day to day activities. Since they live and work together, the applicant and sponsor were able to describe each other’s routines and daily practices in detail. Wedding photos were submitted that demonstrate a marriage ceremony attended by other people who appear to be family and friends. The Tribunal is satisfied that parties represent themselves to other people as being married to each other and that they plan and undertake joint social activities.

20. The parties represent themselves to other people as being married to each other and have provided evidence of the opinion of friends and acquaintances about the nature of the relationship. They plan and undertake joint social activities and gave evidence at the hearing, supported by their witness, that they arrange their work schedules so as to have days off together.

    Nature of persons’ commitment to each other

21. The applicant has provided evidence of a long term relationship of seven years duration that is continuing at the time of decision. The parties have also lived together for a long period and have been married since February 2012. The Tribunal is satisfied that the parties provide each other with companionship and emotional support and view the relationship as long-term. The applicant and sponsor referred to the same long term plans which is to one day own a bar or pub together. The applicant and sponsor were credible witnesses and provided consistent, detailed evidence about the history of the relationship and the nature of their commitment to each other.

22. The Tribunal accepts the applicant experienced communication difficulties with the Department as advised by the applicant’s representative, Charles Appleton. It appears some of the Department’s correspondence was addressed to a different agent in error but sent to Mr Appleton.

23. The Tribunal has considered the evidence both individually and cumulatively. The evidence submitted demonstrates the long term nature of the spouse relationship and this was supported by the applicant and sponsor’s oral evidence during the hearing.

24. At the time of this decision, the Tribunal is satisfied there is a mutual commitment to a shared life as husband and wife to the exclusion of all others, and that the relationship is genuine and continuing and that they continue to live together.

25. The Tribunal is satisfied that at the time of this decision the parties are in a spousal relationship. Therefore the applicant meets cl.100.221.

26. 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 100 visa.

    DECISION

27. The Tribunal remits the application for a Partner (Migrant) (Class BC) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 100 (Spouse) visa:

    ·cl.100.221 of Schedule 2 to the Regulations

    Wendy Banfield
    Member

    
    

    ATTACHMENT  - Extract from Migration Regulations 1994

    1.15ASpouse

    …

    (3)In forming an opinion whether 2 persons are in a married relationship, or a de facto relationship, in relation to an application for:

    (ad)a Partner (Migrant) (Class BC) visa; or

    (ae)a Partner (Provisional) (Class UF) visa; or

    (af)a Partner (Residence) (Class BS) visa; or

    (ag)a Partner (Temporary) (Class UK) visa;

    the Minister must have regard to all of the circumstances of the relationship, including, in particular:

    (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 party to the relationship owes any legal obligation in respect of the other; and

    (v)     the basis of any sharing of day‑to‑day household expenses;

    (b)the nature of the household, including:

    (i)       any joint responsibility for care and support of children, if any; and

    (ii)      the parties’ living arrangements; and

    (iii)     any sharing of responsibility for housework;

    (c)the social aspects of the relationship, including:

    (i)       whether the persons represent themselves to other people as being married or in a de facto relationship with each other;

    (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;

    (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)In forming an opinion whether 2 persons are in a married relationship, or a de facto relationship, in relation to an application for a visa of a class other than a class specified in paragraph (3) (ad), (ae), (af) or (ag), the Minister may have regard to any of the factors set out in subregulation (3).

    (5)If 2 persons have been living together at the same address for 6 months or longer, that fact is to be taken to be strong evidence that the relationship is genuine and continuing, but a relationship of shorter duration is not to be taken not to be genuine and continuing only for that reason.