1506209 (Migration)

[2016] AATA 4304

1506209 (Migration) [2016] AATA 4304 (18 August 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Emire Celik Akyol
Mr Selim Kagan Dilmen

CASE NUMBER:  1506209

DIBP REFERENCE(S):  clf2015/24442 osf2012/006104

MEMBER:Lisa Lo Piccolo

DATE:18 August 2016

PLACE OF DECISION:  Melbourne

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

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

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

Statement made on 18 August 2016 at 9:38am

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 April 2015 to refuse to grant the visa applicants Partner (Migrant) (Class BC) visas under s.65 of the Migration Act 1958 (the Act).

2. The first named applicant (the applicant) applied for the visa on 19 September 2012 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.

4. The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy cl.100.221(2)(b) because the delegate was not satisfied that the applicant is the spouse or de facto partner of her sponsor, the review applicant (sponsor).   A copy of the delegate’s decision was provided to the Tribunal by the review applicant.

5. The applicants appeared before the Tribunal on 10 August 2016 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor as well as three family friends, Mr Muharrem Cingoz, Mr Orhan Donmex and Mrs Cezminaz Cingoz. The Tribunal hearing was conducted with the assistance of an interpreter in the Turkish and English languages.

6. The applicants were represented in relation to the review by their registered migration agent. The representative attended the Tribunal hearing.

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

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The issue in the present case is whether the applicant is the spouse of the sponsor.

Whether the parties are in a spouse or de facto relationship

1. 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.

2. ‘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?

1. 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

   
   

   10 September 2012 in Ankara, Turkey.  A copy of the Certificate of Marriage is on the Department’s file.  There is no evidence before the Tribunal to raise any issue as to the validity of the marriage for the purposes of the Marriage Act.  Therefore, the Tribunal finds that 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?

1. The delegate made, in essence, a “no evidence” decision, documenting in the decision his various contacts with the parties in an ultimately futile attempt to elicit supporting evidence of the parties’ relationship.

2. At the Tribunal hearing, the sponsor and the applicant expressed frustration with the process and the fact that they had not understood what the Department had required them to produce.  They said they had received the correspondence from the Department and asked a friend to assist them to understand it because of their English language deficiencies.  They both thought they had provided what was required and express absolute surprise that the application had been refused.  The Tribunal notes that the applicants provided the Tribunal with a great deal of documentary evidence that was not available to the delegate including statutory declarations from the sponsor and the applicant, four statutory declarations (Form 888) from friends and family as well as evidence of their relationship including photographs, correspondence from Centrelink and the Department of Human Services, payslips, bank statements, car registration and water utility bills.

3. The Tribunal must consider all the circumstances of the relationship, (including the matters specified in r.1.15A(3)) in determining whether the parties are in a “married relationship” as defined by s.5F, and whether the relationship falls within the definition of “spouse”.

4. In assessing these issues, the Tribunal has had regard to documents on the Departmental file as well as the documents submitted to the Tribunal and referred to above. 

Financial aspects of the relationship

1. The applicant and the sponsor gave consistent evidence that they both work at the same polystyrene factory and contribute to the household expenses.  The parties reside in Government housing and both the applicant and the sponsor gave consistent evidence that the sponsor is responsible for managing their joint finances.  Both said that the sponsor is not very good with money and so he relies upon the applicant to manage their affairs.  Numerous documents were submitted to the Tribunal which support each of the applicant’s claims.

2. In these circumstances, the Tribunal accepts the evidence of the parties that they pool their financial resources and share their day to day household expenses.

Nature of the household

1. The applicant and the sponsor gave consistent evidence that they are living in Government housing with the applicant’s son.  The statutory declarations submitted to the Tribunal indicate that the parties host dinners for friends and family at the house they share together. 

2. The parties both stated that the sponsor attends to the housework, including laundry, cleaning and cooking, although the sponsor assists whenever he is able.  The applicant and the sponsor have a large vegetable garden at their home which both described as the place they enjoy spending their time especially during the summer months.

3. In view of the documentary evidence and the consistent oral evidence of the parties, the Tribunal is satisfied that the parties have established a shared household and places significant weight on this aspect of the relationship.

Social aspects of the relationship

1. The applicant submitted a number of photographs taken of the parties in different settings during the course of their relationship.  These photographs show sightseeing that the parties have done together, as well as various other birthdays and other special occasions that they sponsor and applicant have shared during their relationship.  They also evidence many social functions that the couple have attended together in Australia surrounded by friends and family. 

2. The Tribunal places some weight on the statutory declarations that were submitted in support of the relationship from friends and family attesting to the genuine nature of the parties’ relationship.  He said he often attends parties and dinners at their place and he has been assisting them with the renovation as well.  He said he thinks they are a good couple.  He said he

3. Four statutory declarations were provided by various family members, friends and colleagues.  In addition, the Tribunal heard oral evidence from three close family friends who described the loving relationship the couple share, and their belief, based on their observations gleaned through regular social contact, that the relationship is genuine and continuing and supported by the sponsor’s children and family members in Australia and both families in Turkey.  The Tribunal gives significant weight to the oral evidence of the witnesses.

4. The Tribunal is satisfied from the documentary and oral evidence before it that the parties have represented themselves socially to family and friends as a married couple, and the relationship is fully accepted and supported by them.  The Tribunal places significant weight on this aspect of the relationship.

The nature of the person’s commitment to each other

1. The Tribunal had the benefit of taking oral evidence from the applicant and the sponsor, as well as three other witnesses.  The Tribunal assessed both the sponsor and the applicant to be highly credible witnesses.  The Tribunal was impressed with the unhesitating responses to its enquiries by both the sponsor and the applicant and neither applicant attempted to embellish or exaggerate the claims in this matter.  The Tribunal noted that the applicant and the sponsor gave highly consistent evidence which corroborated the documentary evidence submitted.  The Tribunal notes the substantial number of declarations made by family and acquaintances in support of the applicant and sponsor’s relationship.

2. The Tribunal is satisfied that the applicant and sponsor have now been in a committed relationship since August 2011, a period of over five (5) years at the time of this decision.   They have been married since 10 September 2012.  The Tribunal finds the applicant gave consistent oral evidence in relation to the inception and development of their relationship, the manner in which their relationship has developed and demonstrated a high degree of familiarity about the sponsor, his family, each other’s past circumstances and family composition.  They also demonstrated shared goals and plans for the future.

3. The Tribunal found the evidence of both parties to be honest and credible.  The Tribunal was struck by the genuine level of concern they showed for each other’s welfare, life and future.  The applicant and sponsor talked about their genuine care and concern for each other and the manner in which they have enhanced each other’s lives.  They both said that they look after each other that they were well suited and happy.  The Tribunal gives significant weight to the statutory declarations provided by friends and family.

4. The Tribunal also places weight on the role that the sponsor has taken with respect to the applicant’s son and in growing relationship between him and the sponsor’s children and grandchildren.

5. The Tribunal accepts from the evidence that the parties have a strong commitment to one another and that they are in a genuine spousal relationship.

6. After having regard to the Tribunal’s findings in relation to the financial aspects, the nature of the household, the social aspects and the nature of the persons’ commitment to each other, the Tribunal considers these findings together demonstrate that 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.  The Tribunal places weight on the length of the parties’ relationship, the evidence of the parties and the documents submitted which corroborate the oral evidence given by the applicant regarding other factors in their relationship. 

CONCLUSIONS

1. In conclusion, the Tribunal is satisfied that at the time of decision the applicant and the sponsoring partner have a mutual commitment to a shared life as husband and wife to the exclusion of all others. The Tribunal is satisfied 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.

2. Additionally, the Tribunal is satisfied that at the time of decision the applicant and the sponsoring partner live together and do not live separately and apart on a permanent basis. Accordingly, they meet the requirements of s.5F(2)(d) for a married relationship.

3. For these reasons the Tribunal finds that at the time of decision the applicant and the sponsoring partner are in a married relationship within the meaning of s.5F(2) and therefore satisfy the definition of ‘spouse’ contained in s.5F of the Act.

4. The Tribunal finds that at the time of the decision the applicant is the spouse within the meaning of s.5F, of the sponsoring partner, who is the person who was specified as the applicant’s spouse in the Subclass 309 application.  Therefore, the Tribunal finds that the applicant meets the criterion contained in cl.100.221(2)(b) for the grant of a Subclass 100 visa.

5. The Tribunal also finds that the applicant continues to be sponsored by his sponsoring partner and that at least 2 years has passed since the application was made. The applicant therefore meets the requirements of cl.100.221(2)(c).  On this basis, the Tribunal will remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 100 visa.

6. 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.

7. As the second named visa applicant applied on the basis of being a member of the applicant's family unit, his application will be determined by reference to the outcome of the applicant's application on remittal to the Department for reconsideration.

DECISION

1. The Tribunal remits the applications for Partner (Migrant) (Class BC) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 100 (Partner) visa:

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

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

Lisa Lo Piccolo
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).