1609531 (Migration)

[2018] AATA 1952

1609531 (Migration) [2018] AATA 1952 (23 March 2018)

DECISION RECORD

DIVISION:Migration and Refugee Division

CASE NUMBER:  1609531

MEMBER:Helen Kroger

DATE:23 March 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for 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; and

· cl.820.221 of Schedule 2 to the Regulations.

Statement made on 23 March 2018 at 4:27pm

CATCHWORDS
Migration – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner (Temporary)) – Whether a genuine spousal relationship exists – Joint finances – Joint household responsibilities – Social aspects of the relationship – Emotional support and commitment – In a spousal relationship

LEGISLATION
Migration Act 1958 (Cth), ss 65, 338(2), 347
Migration Regulations 1994 (Cth), rr 1.09A, 1.15A, 5F, Schedule 2, cls 820.211(2), 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.

VISA APPLICATION REVIEW – SUB CLASS 820

1. The visa applicant applied to the Department for the visa on 19^th November 2014.

2. The delegate refused to grant the visa on 22^nd June 2016 on the basis that the visa applicant did not satisfy cl.820.211(2) of Schedule 2 to the Migration Regulations 1994 (Regulations). The criteria for the grant of the visa are set out in Part 820 of Schedule 2 to the Regulations. The primary criteria must be satisfied by at least one applicant.

3. On 27^th June 2016 the visa applicant made a valid application (under s.347 of the Act) for review of the delegate’s decision (reviewable under s.338(2) of the Act).

4. The applicant attended a hearing before the Tribunal on 22^nd March 2018 to give evidence and present arguments. The applicant’s sponsor (and wife) [attended] along with the review applicant’s [representative].

BACKGROUND

1. Based on all the documentary and oral evidence before the Tribunal, it is satisfied the facts of this case are as follows.  The Review Applicant arrived in Australia in 2008 on a student visa. He studied a [particular] course at [a] College that subsequently closed and transferred to another [college].  He completed this course in two years and following completion, commenced a [course] at [a particular college] for a subsequent one and a half years. It was during this time in 2012 that he first met his sponsor.

2. The parties worked at the same location at [a particular business].  The Review Applicant is a [a particular occupation] and the sponsor was [another occupation] at the time.  The parties would chat after “service” (work) and became friends.  They started dating around June/July 2012.  The sponsor indicated that she initiated the first date before she went away for a month on a work sponsored trip.  They communicated via facebook during the period she was away and started to date seriously on her return.

3. In 2013 the sponsor had an unplanned pregnancy that miscarried.  It was following this challenging and emotional time that the parties decided to get married and were wed in 2014. They were married [in] October 2014 at [a location in a city].  The parties held a wedding ceremony near the sponsor’s parents’ home in [Suburb 1] [in] April 2017 at [a particular venue].  This reception was attended by family and friends of both parties.  Family of the Review Applicant, including his mother and other immediate family members, flew out from India to attend the reception.  A cousin of the Review Applicants, who lives in [another city], also attended.

4. The parties provided original medical documentation and photos at the hearing that indicate that the sponsor is nearly [number] weeks into a planned pregnancy.  This documentation included dated scans of the foetus, medical certificates, invoices, receipts and statements from [a particular hospital].

5. The parties have lived continuously together since their marriage in 2014 and they have in the last month moved to a larger apartment to accommodate the need for more space with a baby.  The parties indicated separately that they intend to move to [Suburb 1] in the future so that they can be near the sponsor’s parents.  They indicated that this decision would be beneficial both financially and emotionally, and better in the long term for raising a family.

ISSUE

1. The issue is whether the applicant is the spouse or de facto partner of her sponsor.

Whether the parties are in a spouse or de facto relationship

1. 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 this case, the Tribunal is satisfied that the sponsor is an Australian citizen, passport number : [removed].

   Are the parties validly married?

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).

3. The Tribunal has had regard to a certified copy of the parties’ Certificate of Marriage, which according to the document, took place on [a date in] October 2014 at [a location in a city] (Registration Number [removed]). The Tribunal accepts the document as genuine.  On the evidence, the Tribunal is satisfied 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. Regulation 1.09A(3) and 1.15A(3) provide relevant factors for determining whether a defacto or spouse relationship exists.  These factors are (a) the financial aspects of the relationship; (b) the nature of the household; (c) the social aspects of the relationship; and (d) the nature of the person’s commitment to each other.   

2. In assessing these issues, the Tribunal has had regard to all the documents and evidence provided to the Department and the Tribunal.  The Tribunal notes that much of the evidence provided was not available to the delegate when the application was first submitted to the delegate on 19^th November 2014, with a quantity of original documentation and photos being tabled on the day of the hearing.

The financial aspects of the relationship

1. The Review Applicant and sponsor both work full time, he as [a particular occupation] with [a particular business] and the sponsor as [a particular occupation] with [a particular business]. The parties provided documentation and oral evidence regarding the financial aspects of their relationship.  The parties share a joint [bank] account and hold individual bank accounts.  Whilst they do not own or hold any significant financial or property assets, evidence was provided that indicates that they share responsibility for paying household bills such as the rent, gas and electricity bills, shopping and other modest expenses.  The Review Applicant commented on their limited financial reserves and indicated that this was the primary reason why the wedding reception was not held till April 2017 as the parties didn’t have enough money.  Evidence was provided that indicated that the costs of the wedding ceremony was shared by the Review Applicant, the sponsor and the sponsor’s parents.  The Review Applicant provided $8000 for the wedding expenses and he noted his gratitude that the sponsor’s parents assisted, including the purchase of the wedding dress, to ensure that they could have a proper celebration.  The Review Applicant indicated that the sponsor liked to spend money, indicating knowledge of her personal management of finances, whilst assuming responsibility for overall payment of daily expenses.

2. The Tribunal has considered all the material provided, and notes whilst the parties do    not share any substantial assets or debts, it is satisfied that the Review Applicant and sponsor share all matters in relation to the financial aspects of their relationship.

   The nature of the household

3. In assessing the nature of the household, the Tribunal gives weight to evidence of joint responsibility or shared responsibility for housework and chores, the living arrangements of the persons and responsibility for family members. 

4. Evidence was provided at the hearing in regard to the nature of the household.  Both parties work full time, with the Review Applicant engaged in shift [work], and the sponsor working a more standard 8am to 5pm schedule.  The Review Applicant works the evening shift, commencing at 2pm or 3pm, and indicated that he sleeps most mornings to compensate the late hours.  The sponsor provided evidence that she does much of the household cleaning and the parties share share chores such as shopping.  As they do not own a car, the parties do their grocery shopping together at the local Woolworths and the Review Applicant assist in carrying it home.  They indicated that they have just commenced grocery shopping on line.  The parties noted that the Mother-In-Law had gifted them a washing machine and that his sister had recently bought a refrigerator for them.  Without access to a car, timing of household chores are planned between them.  The sponsor noted that “she cleaned up after him”.

5. The Tribunal is satisfied that there is some sharing of household responsibilities whilst recognising the impact of shift work on the management of the household.

   The social aspects of the relationship

6. The parties independently indicated the importance of their respective extended families and provided material and oral evidence at the hearing.  The importance of an appropriate wedding ceremony in the presence of family and friends was recognised.  They submitted that family members were a significant part of the social aspects of their relationship with weekend trips to [Suburb 1].  The Review Applicant has siblings with children who live in Australia, and photos were provided of events taken at different times over the last few years.  The Review Applicant’s shift work limits the parties’ time to socialise during the week or on weekends.  The parties use internet platforms to stay in touch with family and friends who live overseas.

7. The Tribunal gives weight to the evidence provided in relation to family based events and notes that the time restraints imposed by work scheduling limit the parties extra- curricular activities.

   The nature of the person’s commitment to each other

8. Both parties provided evidence about the nature of the personal and emotional support they provide to each other, and the Tribunal notes the evidence provided by the Review Applicant in regard to the challenging time when the sponsor miscarried in 2013.  The Tribunal also notes the parties’ evidence regarding their endeavours to save money for the wedding ceremony and the importance of the contribution from the sponsor’s parents to enable the reception.  Whilst the parties do not have any substantial assets, they gave oral evidence regarding their plans for the future, so that they could establish themselves financially and provide the best opportunities for their child. The parties have been married for three years and four months and have lived continuously together since then. The sponsor is [number] weeks pregnant

9. The duration of the relationship, the length of time during which the parties have lived together, the degree of companionship and emotional support that they provide each other, and whether the parties see their relationship as long-term, are all aspects to be considered in determining the nature of their commitment to each other.

10. In making an assessment as to the level of commitment to each other, the Tribunal has taken into account the parties’ respective ages, educational, family and socio-cultural backgrounds.

11. The Tribunal has taken note of the documentation, evidence and oral submissions provided, and notes that the relationship commenced in 2012, with the marriage taking place in October 2014.  The Tribunal is satisfied that the parties provide significant ongoing emotional support and companionship to each other and present as a couple committed to having a future together.

12. After having regard to the circumstances of the parties relationship, the Tribunal finds the parties demonstrate 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. 

FINDINGS

1. The Tribunal finds from all the evidence the parties are married to each other under a marriage which is valid for the purposes of the Act, and therefore at the time of application and time of decision the parties meet s.5F(2)(a).

2. The Tribunal is satisfied that at the time of application and 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.

3. Additionally, the Tribunal is satisfied that at the time of application and time of decision the applicant and the sponsoring partner live together. Accordingly, they meet the requirements of s.5F(2)(d) for a married relationship.

4. For these reasons, the Tribunal finds that at the time of application and 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.

5. The Tribunal is satisfied that at the time of application, and time of decision, the applicant was the spouse of the person who is an Australian citizen, that the applicant was sponsored by that person. The Tribunal finds that there is no evidence before it which indicates that the sponsor was prohibited from being a sponsoring partner under cl.820.211(2B).

6. Accordingly the applicant meets the requirements of cl.820.211(2)(a) and (c).

7. 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. Therefore the applicant meets cl.820.211(2) and cl.820.221.

8. 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

1. The Tribunal remits the application for 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; and

   ·cl.820.221 of Schedule 2 to the Regulations.

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).