1509532 (Migration)

[2018] AATA 2400

1509532 (Migration) [2018] AATA 2400 (11 May 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1509532

MEMBER:Ian Garnham

DATE:11 May 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Partner (Temporary) (Class UK) visa, with the direction that the applicant meets the following criteria for a Subclass 820 (Partner (Temporary)) visa:

·cl.820.211 of Schedule 2 to the Regulations

·cl.820.221 of Schedule 2 to the Regulations

Statement made on 11 May 2018 at 3:50pm

CATCHWORDS

Migration – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner (Temporary)) – Whether a genuine spousal relationship exists – Some joint house responsibilities – Some joint finances – Limited evidence of social aspects of the relationship – Compelling reasons for limited social representations – Evidence that relationship is continuous and ongoing – Decision remitted with direction

LEGISLATION

Migration Act 1958 (Cth), ss 5F, 65
Migration Regulations 1994 (Cth), r 1.15A(3), Schedule 2, cls 820.211, 820.221

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision of a delegate of the Minister for Immigration on 30 June 2015 to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 14 February 2014 on the basis of his relationship with his sponsor. At that time, Class UK contained only one subclass: Subclass 820 (Partner (Temporary)). The criteria for the grant of this visa are set out in Part 820 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.

3. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.820.221 because the visa applicant failed to provide evidence that he continued to be the spouse of his sponsor as set out in the legislation and there was no evidence provided that he met any of the alternative criteria set out in clause 820.211.

4. Specifically, on 20 April 2015 the department (DIBP) wrote to the visa applicant requesting further information (evidence of certain aspects of the relationship) by registered post.  On 8 May 2015 the letter was returned unclaimed.  On 12 May DIBP attempted to contact the review applicant and the sponsor by telephone.  Messages were left on the review applicant’s telephone but these calls were not returned.

5. In the submission the sponsor claims that she advised the department (DIBP) in March 2014 that they had changed address.      

6. The applicant appeared before the Tribunal on 17 November 2016 to give evidence and present arguments. The Tribunal also received oral evidence from; the [sponsor], her [sister], her [husband] and a friend of the [sponsor].

7. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and Vietnamese and English languages.

8. The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.  On 14 November 2016 a submission and 13 photographs of the parties in various settings over the period May 2013 to October 2016 were provided to the Tribunal.

9. The applicants also provided a copy of their narrative of the relationship and directly addressed relationship factors that the Tribunal is required to consider (the narrative).[1]

   [1] At FF: 88-90 (AAT)     

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

CONSIDERATION OF CLAIMS AND EVIDENCE

11.The issue in the present case is whether the parties are in a spouse or de facto relationship at the time of application and the time of decision.

Whether the parties are in a spouse or de facto relationship

12.Clauses 820.211(2)(a) and 820.221 require that at the time the visa application was made, and at the time of this decision, the 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 applicant claims to be the spouse of the sponsor who is an Australian citizen since [2014].

13.‘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 a married couple 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 about 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?

14.If the parties are validly married, they may meet the requirements of a spousal relationship, but not a de facto relationship.  In the department (DIBP) file a Marriage Certificate demonstrates the parties married [in] December 2013.[2] 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).

[2] At F: 40 (DIBP)

Are the other requirements for a spousal relationship met?

Migration background and claimed background to the relationship:

15.The sponsor is [a particular age] and came to Australia on a prospective marriage visa in May 2002. She was granted permanent residence in March 2005 and became an Australian citizen in [2014]. In the application she claims that she divorced in November 2011.

16.The visa applicant is [a particular age] and came to Australia from Taiwan in August 2012 on a working holiday visa that was valid until [10/2013].  He left Australia [in] 10/2013 and [later in] 10/2013 he was granted a visitor visa that was valid until [02/2014].  He returned to Australia [in] 11/2013.  He has declared no previous relationships. 

17.In February 2013 the parties were introduced by a common friend and the relationship quickly became serious.  They claim in the narrative that the visa applicant proposed to the sponsor on [a particular date in] 04/2013 and they began living together with a friend of the sponsor in mid-2013. 

Financial aspects of the relationship:

18.In the narrative and their evidence to the Tribunal the parties stated they have pooled their finances and shared household expenses since the beginning of their relationship, when they started living together, in mid-2013.

19.The sponsor does not work; at the hearing she said she is currently receiving Newstart allowance with a medical exemption. 

20.They have a joint bank account, formerly held in the name of the sponsor only and that the visa applicant was added to the account after they began living together.  This account receives the sponsor’s social security payments and is used solely by her to pay for food and some other household costs.  Bank statements for the period December 2015 to October 2016 were provided.[3]

[3] At FF: 58-62 (AAT)

21.The visa applicant works as [a particular occupation] in [a business] and also does casual work as [a different occupation].  He claims he earns $4-5,000/month.  His wages are used to meet most of the family costs, such as; current rent of $1,650/month, all of the utility bills, he also pays the sponsor’s [daughter]’s school fees, provides her with pocket money and pays her mobile phone bill.  They also claim the visa applicant has paid for their various independent trips back to Taiwan and Vietnam to visit their families.

22.The sponsor claims that her illness and the breakdown of her marriage were associated with compulsive [gambling].  In the narrative the parties say that when she becomes depressed she still tends to revert to gambling or extravagant over spending.  Under these circumstances the review applicant maintaining control of his income and meeting the predominant costs is an understandable way for them to manage the family finances.     

Nature of the household:

23.The parties claim that they initially lived together for about a month, in April 2013, at the home of a friend of the sponsor.  Since that time they have rented houses together and have only lived apart when they have travelled overseas independently.  In the narrative they claim the visa applicant has returned to Taiwan to visit his parents in November 2013 (6 weeks) and January 2016 (4 weeks) and that the sponsor has returned to Vietnam to visit her sick mother and/or as part of her recovery from depression in the following periods; October 2014 (2 weeks), August 2015 (2 weeks), April 2016 (2 weeks) and August 2016 (2 weeks).  I note these dates and periods approximately concur with the Movement Details of the parties.

24.They have provided rental details for all of this period.  Firstly for a rental in [Suburb 1] for 12 months commencing [in] April 2013 that is in the sole name of the sponsor.[4]  However a letter from the land agent acknowledges that they were told that the visa applicant was also a tenant [in] 06/2013 and that the property was vacated [in] 08/2014.  Copies of further 12 month rental agreements for a different property in [Suburb 1] in the names of both of the parties commencing [in] 08/2015 and [in] 09/2016 have been provided.[5]

[4] At F: 78 (AAT)

[5] At F: 52&53 (AAT)

25.At the hearing the parties said that the visa applicant takes on the major responsibility for the management of the household.  They claim he is the primary cook and cleaner of the house.  They the sponsor’s daughter came to live with them about one month after they began their first rental together in mid-2013.  They claim that the visa applicant also cares for the sponsor’s daughter and often takes her to school and prepares meals for her.  The sponsor’s daughter also provided a letter of support for the visa applicant in which, she confirms the claimed support and care he provides for her.[6]  She also states that the visa applicant pays for her schooling and other costs as set out in paragraph 21.

[6] At F: 80 (AAT)

26.At the hearing, the sponsor candidly admitted that she maintained some contact with her former husband and, in particular, she would regularly go to his place to pick up food for her daughter because her daughter initially did not like the food that the visa applicant prepared.  However, as time has gone by her daughter has acclimatised to the visa applicant’s food and her father prepares food for her less and less.     

Social aspects of the relationship:

27.The parties have had limited involvement of their families in their relationship to the point that they have not met each other’s parents and siblings living in Taiwan and Vietnam.  The visa applicant’s parents and 2 siblings live in Taiwan and during the period of the relationship the visa applicant has returned alone to visit them on 2 occasions.  The sponsor’s parents and 4 siblings live in Vietnam and during the period of the relationship the visa applicant has returned alone to visit them on 4 occasions.  At the hearing the sponsor said that she has not wanted to meet the visa applicant’s family or him meet her family in Vietnam because she is embarrassed because of her illness.  For the same reason they did not have any wedding celebration other than a small group of close friends who also attended the hearing as witnesses.  They included the sponsor’s sister who also lives in Australia and her husband.  All of these witnesses attested to the genuineness of their relationship.

28.In the narrative the parties stated that they both seek a quiet life and do not undertake social activities together although they have provided evidence of themselves fishing and conducting some limited outings together as well as eating out with their close circle of friends.

29.I accept that due to the significant difference in their ages and the nature of the sponsor’s illness that they do not have a wide circle of friends or that they have included their families living overseas in the celebration and recognition of the relationship.  I also accept that they conduct limited social activities together.       

Commitment to the relationship:

30.The sponsor has long-standing mental health issues; in the documents her illness is described as a psychotic disorder.  The illness most recently culminated in admission to [a particular mental health service] over the period; [05/2016] to [06/2016].[7]  The hospital notes acknowledge she was brought to the Emergency Department by her partner and a letter from her case manager dated [in] 07/2016 acknowledges that the visa applicant provides significant support in many areas of her life.[8]  It states the visa applicant provides; …invaluable support with her medication regime, financial contribution, parenting duties, and household duties. 

[7] At FF: 63-64 (AAT)

[8] At F: 57 (AAT)

31.In the sponsor’s daughter’s letter of support for the relationship, she states that the relationship he has with her and the level of care he provides for her mother has been significant in stabilising her mother’s illness.[9]  In particular, she refers to the period of the sponsor’s acute illness and hospitalisation and the support the visa applicant provided her mother at that time.  She also acknowledges the care that the visa applicant provided for her during her mother’s absence.

[9] At F: 80 (AAT)

32.I accept that the relationship began when the parties state that it did which means it is now of 5 years duration.  I also accept that the parties have lived together, other than the limited times set out in paragraph 23, for this 5 year period.         

33.I am satisfied by the evidence that has been provided to the tribunal that, at the time the visa application was made and the time of this decision, the parties were and are in a spousal relationship.  I am also satisfied that they have a mutual commitment to a shared life together as husband and wife to the exclusion of all others.  The tribunal is also satisfied and finds that the relationship between the parties is genuine and continuing and they do not live separately and apart on a permanent basis.

34.On the basis of the above findings the Tribunal is satisfied that the requirements of s.5F(2) are met at the time the visa application was made and the time of this decision.

35.Therefore the applicant meets cl.820.211(2)(a).

36.The tribunal also finds at the time of application the visa applicant was the holder of a substantive visa and therefore cl.820.211(2)(d) does not apply.  The tribunal also finds that the sponsor is not a woman who was granted a woman-at-risk visa, and that the applicant is the spouse of the sponsoring partner.  The sponsor is an Australian citizen over 18 years old as required by cl.820.211(2)(c) and is not prohibited by cl.820.211(2B) from being a sponsoring partner.

37.Therefore the requirements of cl.820.211 and cl.820.221 are met.

38.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 820 visa.

DECISION

39.The Tribunal remits the application for a Partner (Temporary) (Class UK) visa, with the direction that the applicant meets the following criteria for a Subclass 820 (Partner (Temporary)) visa:

·cl.820.211 of Schedule 2 to the Regulations

·cl.820.221 of Schedule 2 to the Regulations

Ian Garnham
Member

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).

1. 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.

2. 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).