1501129 (Migration)

[2016] AATA 3601

1501129 (Migration) [2016] AATA 3601 (23 March 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Wayne John Hickey

VISA APPLICANT:  Mrs Rhea Compas Hickey

CASE NUMBER:  1501129

DIBP REFERENCE(S):  OSF2013/042809

MEMBER:Rieteke Chenoweth

DATE:23 March 2016

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.309.211of Schedule 2 to the Regulations,

·cl.309.221 of Schedule 2 to the Regulations.

.

Statement made on 23 March 2016 at 9:15am

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 19 November 2014 to refuse to grant the visa applicant a Partner (Provisional) (Class UF) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 4 November 2013 on the basis of her relationship with her sponsor, the review applicant. At that time, Class UF contained only one subclass: Subclass 309 (Partner (Provisional). The criteria for the grant of this visa are set out in Part 309 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.309.211.

3. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.309.211 because the delegate was not satisfied that the review applicant and the visa applicant were in a genuine and ongoing relationship..

4. The review applicant appeared before the Tribunal on 22 March 2016 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Rhea Compas Hickey, the visa applicant.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in the present case is whether Mr Wayne John Hickey, the review applicant and Ms Rhea Hickey, the visa applicant are in a spouse relationship.

   Whether the parties are in a spouse or de facto relationship

7. Clause 309.211(2) and 309.221 require that at the time the visa application was made, and at the time of this decision, the visa applicant is the spouse or de facto partner of an Australian citizen or Australian permanent resident or an eligible New Zealand citizen. In the present case the visa applicant claims to be the spouse of the review applicant who is an Australian citizen.

8. ‘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 review applicant’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?

9. If the parties are validly married, they may meet the requirements of a spousal relationship, but not a de facto relationship. The parties were married on 21 December 2012.  There is a copy of the marriage certificate on the Department file.  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 s.5F(2)(a).

   Are the other requirements for a spousal relationship met?

   Financial aspects of the relationship

10. The review applicant told the Tribunal that when he met his wife on line he was impressed by the fact that she did not ask him for money.  She explained to him that she was working and while the family were not well off they did not need him to send money.  He said that he has sometimes paid for her internet access.  He has also bought her a laptop computer so that they could communicate with each other with Skype or Facetime. He has sent her money at times when there was a particular need. The visa applicant submitted a number of her payslips as evidence that she was employed. The review applicant submitted a number of Western Union remittance advices as evidence of his sending financial support to his wife.

11. The review applicant told the Tribunal that he had visited his wife in the Philippines in November 2013 and had taken a microwave oven as well as some pedestal fans as gifts to the family with him as they were not able to purchase them there. He had assembled the fans for them in the house in which his wife lived together with her parents. A few days after his arrival there was a serious typhoon and his wife’s parent’s house was destroyed as well as that of her sister and her husband and her brother and his wife.  She has a sister-in-law who was married to her deceased brother and her house was also destroyed. The houses were all close together.

12. The review applicant said that he was evacuated out to Australia a few days after the typhoon.  In the weeks after however, he paid for a generator and fuel for the family so they could have electricity again and also paid toward the cost of rebuilding the houses as well as paint.  He submitted a number of receipts to the Tribunal as evidence of this.  The Tribunal notes there is also a statutory declaration from the visa applicant’s brother, the visa applicant’s mother the visa applicant’s sister attesting to the relationship being genuine and also to the review applicant’s support for the family. There are also a number of receipts showing the review applicant paid for materials for the house. He said that he paid for his wife’s internet costs so that they could communicate easily. He also said that when he was there in 2013 he had prepaid the hotel for 3 weeks and the typhoon had hit after he was there 4 days.  He arranged for the visa applicant to get the refund from the hotel and use it for her own and the family’s needs.

13. The Tribunal accepts that the review applicant has provided material goods and money to the family of the visa applicant, particularly in the time after the typhoon struck their island.

14. The Tribunal accepts that the review applicant has assisted his wife’s family in the aftermath of the typhoon. 

    Nature of the household

15. The review applicant and the visa applicant have never set up a joint household in the Philippines.  The review applicant said that when he visited the Philippines he and his wife stayed in a hotel.  He has applied for her to be granted a visitor visa to come to Australia but this has been refused on two occasions.

16. The review applicant said that he has been hoping that his wife will be granted the visa soon and they can live together in Australia. He visited his wife in the Philippines in 2013 and December 2014.

17. The Tribunal accepts that where applicants live in separate countries it is not unusual for them not to have set up a joint household.

    Social aspects of the relationship

18. The applicants submitted a number of photographs depicting themselves at their wedding and with members of the family. They submitted more photographs to the Tribunal of members of the family and some of the devastation after the typhoon.

19. The Tribunal notes there are a number of Forms 888 on the Department and the Tribunal files attesting to the relationship being genuine. The statutory declaration from the visa applicant’s mother attested to the fact that when the review applicant visited The Philippines he and the visa applicant stayed in a hotel together.

20. The Tribunal accepts that the review applicant and the visa applicant are perceived by members of the family as being in a spouse relationship.

    Nature of persons commitment to each other

21. The review applicant has a complicated family history.  He has been married on three previous occasions and has lived in a de facto relationship with another woman whom he sponsored from the Philippines.  He has 7 children in total from his various relationships. He said that he has 3 children from the de facto relationship. He had two children from that relationship before he sponsored his de facto spouse and she already had 1 child from a previous relationship she had in the Philippines. They subsequently had another child together who was born in Australia in 2006. When they initially applied for a spouse visa she tried to get an annulment of her previous marriage but this was not successful so they applied on the basis of the de facto relationship.

22. The visa applicant told the Tribunal she knew of her husband’s previous relationships and about his children.  She has spoken to a number of the children on Skype. 

23. The review applicant said he was estranged from two of the three children of his first marriage. The third child, a daughter is in contact with him on a regular basis and is supportive of his new relationship. His second marriage broke up after his wife’s son was killed in a motorbike accident. He has no children from this relationship. His son from his third marriage is a law student.  He remains in regular contact with this son and the son has spoken to the visa applicant on Skype.

24. The review applicant said that for the last few months he has had no contact with the children from his de facto relationship.  He said this marriage broke up because his wife was unfaithful to him.  She has now partnered again and she has become very religious.  He used to have the children in the holidays and on alternate weekends but his former de facto has become very religious and now insists on taking the children to church on Friday nights and Saturdays so it is very difficult for him to see them.  He said her new partner also tries to prevent him from seeing them. Their mother has also persuaded the children to become vegetarian and as he likes to barbeque meat to feed them this has made more difficult if they are at his home for a meal.

25. The Tribunal asked the review applicant why he had gone on line.  He said he was looking for a wife because he had been on his own for 2 years and wanted someone to live with. He said he does not like being alone and was therefore looking for someone.  He said that he had talked to a number of other women in the chat room he frequented but considered that they were not genuinely interested in a relationship but more interested in his money. He said that the visa applicant had not asked him for money and they had talked for extended periods and considered they had common interests. He considered that she was someone who worked hard and lived with her family and had a good value system.   

26. The visa applicant said that she had also gone on line because she was looking for a partner. She said that she found him easy to talk to and that they had things in common. She also likes karaoke and dancing which are two of his interests.

27. The Tribunal accepts that many people go online looking for partners. The Tribunal further accepts that the desire to migrate to Australia in not incompatible with the being in a genuine relationship.

28. The Tribunal asked the review applicant whether he intended to have more children with the visa applicant.  He said they had talked about it and he knew his wife would want to have children.  He was happy to have further children even though he already has 7 others.  He thought they might have 2 of 3 children. He said that last time he was visiting her they thought she may be pregnant but she then found out she was not. The visa applicant also said that she wanted to have children and thought that they might have 3 or 4.  They both said they had discussed this together.

29. The Tribunal put to both the applicants that there is a 44 year age gap between them and asked them if they saw that as a problem. They each individually said that they had talked about this and were not concerned about it.  The visa applicant said that if necessary at a later date she had to take care of him she was prepared to do this.

30. The Tribunal is satisfied the applicants have a mutual commitment to a shared life as husband and wife to the exclusion of all others and the relationship between them is genuine and continuing.  They live together or do not live separately and apart on a permanent basis.

31. 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.

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

33. 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

34. 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

    ·cl.309.221 of Schedule 2 to the Regulations]

    Rieteke Chenoweth
    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).