1513042 (Migration)

[2016] AATA 4807

1513042 (Migration) [2016] AATA 4807 (14 December 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr David Chace Jr

CASE NUMBER:  1513042

DIBP REFERENCE(S):  BCC2014/664771

MEMBER:Susan Trotter

DATE:14 December 2016

PLACE OF DECISION:  Brisbane

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(2) of Schedule 2 to the Regulations

·cl.820.221(1) of Schedule 2 to the Regulations

Statement made on 14 December 2016 at 4:26pm

CATCHWORDS
Migration – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner (Temporary)) – Insufficient evidence of relationship – Birth of son – Genuine commitment

LEGISLATION
Migration Act 1958, ss 5F(2)(a) – (d), 65

Migration Regulations 1994, Schedule 2, cl 820.211(2)(a), cl 820.221(1)

CASES
Bretag v MILGEA (Federal Court, unreported, O’Loughlin J, 29 November 1991

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 9 September 2015 to refuse to grant the applicant, Mr David Chace Jr, a Partner (Residence) (Class BS) visa under s.65 of the Migration Act 1958 (the Act).

2. Mr Chace Jnr applied for the visa on 7 March 2014 on the basis of his relationship with his sponsor and wife, Mrs Kate Chace. 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).

3. The delegate refused to grant the visa on the basis that there was a lack of evidence provided regarding the relationship between Mr Chace Jnr and Mrs Chace and that it was reasonable to expect that there would be a wide variety of evidence to provide regarding their relationship, which Mr Chace Jnr had not provided despite being given three opportunities to do so over a period of nine months.

4. Mr Chace Jnr lodged an application for review of the delegate’s decision with the Tribunal on 22 September 2015.

5. Mr Chace Jnr appeared before the Tribunal on 14 December 2016 by telephone to give evidence and present arguments. The Tribunal also heard Mrs Chace by telephone.

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

   PRELIMINARY MATTER

7. The Tribunal discussed with Mr Chace Jnr at the outset the visa refusal decision for which he sought review. The Tribunal observed that the Department, in its decision of 9 September 2015 had essentially made two decisions, a decision to refuse the temporary visa (Subclass 820) and a decision to refuse the permanent visa (Subclass 801).  

8. There is a two stage process for partner visas. The applicant must hold a provisional visa in order to be granted a permanent visa. The grant of the provisional visa enables an applicant to remain in Australia on a temporary basis. The grant of a permanent visa may subsequently be considered, and would generally depend on whether the relationship has continued for a period of at least two years.

9. One of the key criteria for a Subclass 801 visa is that you need to have held a 820 visa. The Department refused to grant the 801 visa because having refused the 820 visa, Mr Chace Jnr did not and had not held an 820 visa.

10. The application for review lodged with the Tribunal on 22 September 2015 appears to be an application for review of the refusal to grant the Subclass 801 visa. The Tribunal discussed with Mr Chace Jnr whether, given that he is not yet the holder of a Subclass 820 visa, he in fact intended to seek review of the refusal to grant a Subclass 820 visa. Mr Chace Jnr confirmed that that had been his intention and the Tribunal proceeded on that basis.

    ISSUES

11. The Partner (Temporary) (Class UK) visa class contains one visa Subclass: Subclass 820 (Partner).

12. The criteria for a Subclass 820 visa are set out in Part 820 of Schedule 2 to the Regulations. Clauses 820.211(2)(a) and 820.221(1) 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, Australian permanent resident or an eligible New Zealand citizen and that the sponsor was not prohibited from being a sponsoring partner under cl.820.211(2B). In the present case, Mr Chace Jnr claims to be the spouse of the sponsor, Mrs Chace, who is an Australian citizen by birth.

13. ‘Spouse’ is defined in section 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: subparagraphs 5F(2)(a) - (d) of the Act. 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 of the relationship and the nature of the visa applicant’s and sponsor’s household and their commitment to each other as set out in regulation 1.15A(3), which is extracted in the attachment to this decision.

14. Cl.820.211(2)(c) requires the applicant to be sponsored by their spouse or de facto partner if the spouse or de facto partner has turned 18.

15. Additionally, in the case of an applicant who is not the holder of a substantive visa at the time of application, further requirements must be met pursuant to cl.820.211(2)(d).

16. It follows that the issues for the Tribunal to determine are:

    (a)  Was and is Mr Chace Jnr the spouse of Mrs Chace at the time of application and at the time of decision?, that is:

    (i)were and are Mr Chace Jnr and Mrs Chace validly married[1]?; and

    (ii)were and are the other requirements for a spousal relationship met[2]?; and, if so,

    (b)  Is Mrs Chace not prohibited from being a sponsoring partner?;

    (c)  Is Mr Chace Jnr sponsored as required?; and

    (d)  Did Mr Chace Jnr hold a substantive visa at the time of the visa application?

    [1] s.5F(a) of the Act

    [2] s.5F(b)-(d) of the Act

    CONSIDERATION OF CLAIMS AND EVIDENCE

17. Mr Chace Jnr is a 40 year old citizen of the United States of America (the USA). Mrs Chace is a 38 year old Australian citizen by birth.

18. According to the visa application, Mr Chace Jnr and Mrs Chace first met on 4 January 2013, committed to a long-term relationship on 15 May 2013 and married on 4 October 2013.

    Issue 1 – Were and are Mr Chace Jnr and Mrs Chace validly married at the time of the visa application and at the time of the decision?

19. If the parties are validly married, they may meet the requirements of a spousal relationship, but not a de facto relationship.

20. Mr Chace Jnr and Mrs Chace were married on 4 October 2013 in the USA. The Tribunal has sighted a copy of the marriage certificate and is satisfied on the evidence that Mr Chace Jnr and Mrs Chace were married on 4 October 2013 under a marriage that is valid for the purposes of the Act as required by s.5F(2)(a) and continue to be validly married. S.5F(2)(a) is therefore met at the time of decision.

21. The Tribunal is therefore satisfied that paragraph (a) of s.5F(2) of the Act was satisfied at the time of the visa application and is satisfied at the time of the decision.

    Issue 2 – Were and are the other requirements for a spousal relationship met at the time of the visa application and at the time of the decision?

22. The Tribunal considered all of the circumstances of Mr Chace Jnr’s and Mrs Chace’s relationship, including the matters to which it is required to have regard, pursuant to r.1.15A(3), in considering whether the other requirements for a spousal relationship were met at the relevant times.

    Financial aspects of the relationship – including joint ownership of assets, and joint liabilities; extent of any pooling of financial resources, any legal obligations owed in respect of the other person; and the basis of any sharing of day-to-day household expenses.

23. Mr Chace Jnr has provided the following documents to the Tribunal, in addition to those provided to the Department, in relation to the financial aspects of his relationship with Mrs Chace:

    (a)  A letter from Mrs Chace dated 29 November 2016 stating, amongst other things, that following the birth of their son on 20 November 2015, they have chosen for Mr Chace Jnr to stay home and be the primary caregiver for their son as it was more financially beneficial for their family for Mrs Chace to return to her long-term employment.

    (b)  An undated letter from Mrs Chace, received by the Tribunal on 20 November 2016, stating, amongst other things, that Mr Chace Jnr’s and Mrs Chace’s joint finances are directed through Mrs Chace’s long standing bank account, to which her salary is deposited, and to which Mr Chace Jnr has full access. Mrs Chace notes that Mr Chace Jnr also has possession of her visa credit card. She states that they previously held a joint bank account but found it easier to use one account.

    (c)  A joint letter from Mr Chace Jnr and Mrs Chace dated 23 September 2015 stating, amongst other things, that Mr Chace Jnr has had difficulty finding employment in Australia and that a decision was made that instead of day care, Mr Chace Jnr would be the primary care giver for their (then yet to be born) son with Mrs Chace returning to work and her income then being the source of income to cover their joint expenses.

    (d)  A general tenancy agreement in relation to the joint lease and financial obligation of Mr Chace Jnr and Mrs Chace to pay $440 rent per week for rented premises in respect of a least from February 2016 to February 2017.

    (e)  A letter from the Residential Tenancies Authority confirming the holding of a $1,740 bond on behalf of Mr Chace Jnr and Mrs Chace in relation to their rented premises.

    (f)    Tax invoices for payment of various expenses including household maintenance addressed to Mr Chace Jnr and for medical insurance addressed to Mrs Chace, individually addressed, but at the same address.

24. The Tribunal accepts that Mr Chace Jnr and Mrs Chace do not currently own any significant assets and that at the time of the visa application and now they have had and have joint liabilities consistent with renting premises and the daily expenses of living. The Tribunal is satisfied that at the time of the visa application, they shared whatever income and savings they had and shared day-to-day household expenses as they continue to do now, with their situation now being consistent with Mrs Chace being the main breadwinner, entirely consistent ow with a married couple with a young baby choosing for one of them to work and one to act as primary caregiver.

    Nature of the household – including any joint responsibility for care and support of children, the persons’ living arrangements; and any sharing of the responsibility for housework.

25. Mr Chace Jnr has provided the following documents to the Tribunal, in addition to those provided to the Department, in relation to the nature of Mr Chace Jnr’s and Mrs Chace’s household:

    (a)  A letter from Mrs Chace dated 29 November 2016 and an undated letter form Mrs Chace (received by the Tribunal on 20 November 2016) stating, amongst other things, that following the birth of their son on 20 November 2015, they have chosen for Mr Chace Jnr to stay home and be the primary caregiver for their son and that after 6.30 pm Monday to Friday (and on weekends), the child care duties are shared, with Mrs Chace taking a predominant role when she is not at work to maintain her bond with their son. She further states that Mr Chace Jnr does the majority of housework during the day and when she is home from work, they share household duties equally, with her doing the majority of the household shopping on weekends.

    (b)  A general tenancy agreement in relation to the joint lease and financial obligation of Mr Chace Jnr and Mrs Chace to pay $440 rent per week for rented premises in respect of a lease from February 2016 to February 2017 (and previous joint tenancy agreements).

26. The Tribunal accepts the evidence that Mr Chace Jnr and Mrs Chace live together, with their son, in rented premises (currently under a lease that expires February 2017) and have previously lived together and taken joint responsibility for housework, including at the date of the visa application. The Tribunal accepts that they continue to take joint responsibility for housework and for the care and support of their son on the basis stated,.

    Social aspects of the relationship – including whether the persons 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.

27. Mr Chace Jnr has provided the following documents to the Tribunal, in addition to those provided to the Department, in relation to the social aspects of Mr Chace Jnr’s and Mrs Chace’s relationship now:

    (a)  A letter from Mrs Chace dated 29 November 2016 and an undated letter form Mrs Chace (received by the Tribunal on 20 November 2016) stating, amongst other things, that when Mrs Chace is not at work, Mr Chace Jnr and she, and their son, are together, that the majority of their socialising is done with family or friends visiting from interstate or her work colleagues and that they prefer to spend most of their time together as a family.

    (b)  A joint letter from Mr Chace Jnr and Mrs Chace dated 23 September 2015 stating, amongst other things, that the majority of Mrs Chace’s friends are in Sydney (where she grew up) and the majority of Mr Chace Jnr’s family and friends are in the USA and that they spend the majority of their time socialising together in Brisbane where they now live (for Mrs Chace’s employment) or with Mrs Chace’s parents whom they travel to visit on the New South Wales North Coast.

    (c)  Recent invitations addressed to Mr Chace Jnr and Mrs Chace (and their son) to a friend’s wedding and an “I do BBQ”.

    (d)  Numerous photographs of Mr Chace Jnr and Mrs Chace together (including wedding photographs), and with other persons, including their son.

    (e)  Statutory declaration of Tanya Casey dated 17 September 2015 providing detailed knowledge of Mr Chace Jnr’s and Mrs Chace’s married relationship, including that she attended at their vow renewal service on 2 October 2014 in company with her husband.

    (f)    Statutory declaration of Leanne Baratta dated 21 September 2015 providing detailed knowledge of Mr Chace Jnr’s and Mrs Chace’s married relationship, including that she acted as bridesmaid for them at their wedding renewal in October 2014 in Australia.

28. The Tribunal is satisfied based upon this evidence that Mr Chace Jnr and Mrs Chace, at the time of the visa application and now, represented and represent themselves as being married and that it was and is the opinion of friends and acquaintances that they are married. The Tribunal is also satisfied that Mr Chace Jnr and Mrs Chace at the time of the visa application and now have planned and plan and undertake joint social activities together, including now with their son, consistent with their claimed relationship, and when location and time permit, with friends and family.

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

29. Mr Chace Jnr has provided the following documents to the Tribunal, in addition to those provided to the Department, in relation to the nature of Mr Chace Jnr’s and Mrs Chace’s commitment to each other:

    (a)  An undated letter from Mrs Chace, received by the Tribunal on 20 November 2016 and a joint letter from Mr Chace Jnr and Mrs Chace dated 23 September 2015 stating, amongst other things, their plans for the future, including their desire to purChace a house together when finances permit and a short term plan to conceive another child in early 2017. Further their plans include Mrs Chace applying for a marriage visa in the USA, should Mr Chace Jnr’s visa application in Australia not be successful, so that they can live together, with their son, as a family, in either Australia or the USA, although it is noted that they would prefer to live in Australia due to the lifestyle and proximity to Mrs Chace’s parents.

    (b)  Birth certificate of their son, born November 2015 in Brisbane, with Mr Chace Jnr and Mrs Chace named as the parents.

30. The Tribunal is satisfied based upon the evidence before it that Mr Chace Jnr and Mrs Chace have now known each other for nearly four years and have been married for over three years. The Tribunal is satisfied that they have lived together since before the time of the visa application and continue to live together, now also with their son, that they provide a significant degree of companionship and emotional support to each other and see their relationship as being long-term.

    Conclusion

31. As regards the circumstances of Mr Chace Jnr’s and Mrs Chace’s relationship at the time of the visa application, in addition to the documentary evidence before it in relation to that time, the Tribunal notes that it may have regard to later events in relation to an earlier point in time, so long as the later events tend logically to show the existence or non-existence of facts that existed at the time of application: Bretag v MILGEA (Federal Court, unreported, O’Loughlin J, 29 November 1991). The Tribunal has therefore also had regard to the evidence postdating the date of the visa application, to the extent that it logically shows circumstances at the time of the visa application consistent with the claimed relationship, in considering the issues before it.

32. The Tribunal is satisfied that there is very significant evidence before it, significantly more than was before the Department, in relation to all of the circumstances of Mr Chace Jnr’s and Mrs Chace’s relationship. The Tribunal is satisfied that all of the evidence outlined in these Reasons, but particularly the birth of and commitment to their son are significant factors to be taken into account. Having taken into account all of the circumstances of Mr Chace Jnr’s and Mrs Chace’s relationship, including the r.1.15A(3) matters, the Tribunal is satisfied that at the time of the visa application and at the time of decision, Mr Chace Jnr and Mrs Chace had and have a mutual commitment to a shared life as husband and wife to the exclusion of all others, that the relationship between them was and is genuine and continuing and that they lived together and continue to do so. The Tribunal is therefore satisfied that paragraphs (b)-(d) of s.5F of the Act were satisfied at the time of the visa application and are satisfied at the time of the decision.

    Issue 3 – Is Mrs Chace not prohibited from being a sponsoring partner?

33. There is no evidence before the Tribunal that Mrs Chace is prohibited under cl.820.211(2B) from being a sponsor.

    Issue 4 – Is Mr Chace Jnr sponsored as required?

34. As Mr Chace Jnr’s wife, Mrs Chace, sponsored the visa application and is over the age of 18 years, the Tribunal finds that the requirements of cl.820.211(2)(c) are also met.

    Issue 5 – Did Mr Chace Jnr hold a substantive visa at the time of the visa application?

35. The Department’s records show, and the Tribunal finds, that Mr Chace Jnr held a substantive visa, specifically a Subclass 601 visa, at the time of the visa application.

    CONCLUSION

36. As the Tribunal has found that the requirements of s.5F(2)(a)-(d) were all met at the relevant times, the Tribunal is satisfied that at the time of the visa application and at the time of the decision, Mr Chace Jnr and Mrs Chace were and continue to be in a married relationship and therefore Mr Chace Jnr was and is the spouse of Mrs Chace pursuant to s.5F of the Act. Further, there is no evidence that Mrs Chace is prohibited from being a sponsor and the Tribunal has found Mr Chace Jnr is sponsored as required and held a substantive visa at the time of the visa application. The Tribunal therefore finds that the requirements of cl.820.211(2) were met at the time of the visa application and continue to be met at the time of decision such that cl.820.221(1) is also met.

1. 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

   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(2) of Schedule 2 to the Regulations

   ·cl.820.221(1) of Schedule 2 to the Regulations

   Susan Trotter
   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).

   (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).