1501046 (Migration)

[2016] AATA 3522

1501046 (Migration) [2016] AATA 3522 (16 March 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs ALMAZ BEGUM

CASE NUMBER:  1501046

DIBP REFERENCE(S):  OSF2011/048520

MEMBER:Michael Cooke

DATE:16 March 2016

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 (Partner) visa:

·cl.100.221(1) of Schedule 2 to the Regulations

Statement made on 16 March 2016 at 2:16pm

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 8 January 2015 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 21 February 2011 on the basis of her relationship with her sponsor. At that time, Class BC contained one subclass: Subclass 100 (Partner). 

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. Relevantly to this matter, the primary criteria include cl.100.221(2)(b).

4. The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy c1.100.211(2)(b) because the parties did not meet the definition of spouse in s.5F of the Act

5. The applicant appeared before the Tribunal on 16 March 2016 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor. The Tribunal hearing was conducted with the assistance of an interpreter in the Hindi (Fiji) and English languages.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is whether the applicant meets the definition of spouse of the sponsoring partner .

   SPOUSE/DE FACTO (cl.100.221(2)(b), (2A)(b))

   Whether the parties are in a spouse or de facto relationship

8. 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 or de facto partner of the ‘sponsoring partner’. Unless the applicant was granted a Subclass 309 visa by Ministerial intervention, the ‘sponsoring partner’ is the person who was specified as the applicant’s spouse or de facto partner or intended spouse or de facto partner in the related Subclass 309 application, being an Australian citizen, permanent resident or eligible New Zealand citizen. In the present case the applicant claims to be the spouse of the sponsor, a ‘sponsoring partner’ within the meaning of that term.

9. ‘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 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?

10. If the parties are validly married, they may meet the requirements of a spousal relationship, but not a de facto relationship. On the evidence, (an Australian Marriage Certificate) 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).

    Are the other requirements for a spousal relationship met?

    ·Financial aspects of the relationship — including joint ownership of assets, and joint liabilities; extent of pooling of financial resources, any legal obligations owed to the other party; any sharing of day-to-day household expenses.

11. The parties have indicated they have separate accounts but access to each other's accounts. The applicant is a 100% beneficiary of the sponsors' superannuation.

    ·Nature of the household — including any joint responsibility for care and support of children, parties' living arrangements; and any sharing of housework.

12. The parties have indicated they have lived in the same unit for 5 years. They share the care of two young children. The applicant is a homemaker whilst the sponsor maintains the family.

    ·Social aspects of the relationship — including whether parties represent themselves to other people as being married to each other; the opinion of friends and acquaintances about the nature of the relationship; and any basis on which the persons plan and undertake joint social activities joint social activities.

13. The parties have submitted photographic evidenced to the Department of their large wedding. They undertake joint social activities

    ·Nature of persons' commitment to each other - including duration of the relationship; the length of time they have lived together; degree of companionship and emotional support they draw from each other; and whether they see the relationship as long-term,

14. The parties have lived together for many years and have two young Australian children. They informed in the hearing that they see their relationship as a long term one.

    ·Any other relevant considerations

15. The sponsor indicated the failure to inform the Department of matters to do with the case was due to a prolonged illness he suffered. During this time his father took care of the correspondence he received. He was slack and information from the Department was not conveyed to him.

16. Having considered r.1.15A(3) matters the Tribunal finds the parties have a mutual commitment to a shared life to the exclusion of others; a genuine and continuing relationship; and they live together and not separately and apart on a permanent basis). They satisfy the definition of spouse contained in s.5F(2)(b)-(d).

17. Given these findings the Tribunal is satisfied that at the time of this decision the parties are in a spousal relationship.

18. Therefore, the applicant meets c1.100.221(2)(b).

19. 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

20. 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 (Partner) visa:

    • c1.100.221(1) of Schedule 2 to the Regulations

    Michael Cooke
    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).