1420444 (Migration)

[2016] AATA 3952

1420444 (Migration) [2016] AATA 3952 (31 May 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Kim Ngan Hoang

CASE NUMBER:  1420444

DIBP REFERENCE(S):  CLF2011/15644

MEMBER:Nicholas McGowan

DATE:Tuesday 31 May 2016

PLACE OF DECISION:  Sydney

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

·     cl.801.221(2)(c) of Schedule 2 to the Regulations.

Statement made on 31 May 2016 at 1:26pm

APPLICATION FOR REVIEW

1. The applicant applied for the visas on 7 February 2011. The applicant was granted an 820 visa on 5 July 2011. The applicant was refused the 801 visa on 4 December 2014. The applicant appealed the 801 visa refusal on 16 December 2014. The applicant and her sponsor appeared before the Tribunal on 31 May 2016. The applicant was represented.

   CONSIDERATION OF CLAIMS AND EVIDENCE

2. On the evidence before it, the Tribunal is satisfied that the sponsor is the ‘sponsoring partner’ of the applicant: cl.820.221(2)(c). In this case, the Tribunal considered the circumstances of the parties as set out in r.1.15A(3) in forming an opinion as to the matters in s.5F(a)-(d). The evidentiary basis for the Tribunal’s findings is the oral evidence as provided at hearing by the applicant and sponsor (and documentary evidence as filed).

3. The Tribunal discussed the lives of the parties at length, including their living arrangements; their finances; their commitment to each other; broader recognition of their relationship; and the undertaking of any social activities together. The Tribunal is satisfied that the parties live together with the applicant’s parents; that the applicant works and supports the sponsor (who quit his job last December); that the parties anticipate starting a family together; that they have little by means of monetary savings, and; that they are both in generally good health. The Tribunal is satisfied from all the evidence, but in particular the sponsor and applicant’s consistent and spontaneous oral evidence at hearing, that the parties are committed to each other for the long-term, that they draw companionship from each other and see their relationship as long term, and that they have a sound understanding of each other as discussed at hearing. The Tribunal is satisfied their married relationship is almost six years long; having married in December 2010. From all the evidence, the Tribunal is satisfied that the applicant and sponsor meet the requirements of s.5F(2)(a)-(d) for a married relationship, and therefore satisfy the definition of ‘spouse’ as contained in s.5F of the Act.

   Other considerations

4. The Tribunal discussed the allegations (of a contrived relationship) contained in the Department’s file with the applicant and her sponsor. The Tribunal notes the Department did not conduct a site visit. The Tribunal found no basis in fact to substantiate the allegations levelled. Accordingly, the Tribunal accorded the allegations no adverse weight. The Tribunal came to this conclusion after having discussed the allegations with the parties thoroughly.

   FINDINGS

5. On the evidence before the Tribunal, the parties were married to each other under a marriage that is valid for the purposes of the Act: s.5F(2)(a). The Tribunal is satisfied that at the time of decision the applicant and sponsor had 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. They therefore meet the requirements of s.5F(2)(b) and s.5F(2)(c) for a married relationship. The Tribunal is also satisfied that at the time of decision the parties meet the requirement of s.5F(2)(d) for a married relationship in that they live together. For these reasons the Tribunal is satisfied that at the time of decision the parties were in a ‘married relationship’ within the meaning of s.5F(2) of the Act. Therefore, at the time of this decision the Tribunal’s is satisfied the applicant is the spouse, within the meaning of s.5F, of the sponsoring partner. Therefore, the applicant meets cl.801.221(2)(c). Given these findings, the appropriate course is to remit the applications for the visa to the Minister to consider the remaining criteria.

   *  *  *  *  *

   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).