1612128 (Migration)

[2018] AATA 2102

1612128 (Migration) [2018] AATA 2102 (3 May 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1612128

MEMBER:Scott Clarey

DATE:3 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(2) of Schedule 2 to the Regulations; and

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

Statement made on 03 May 2018 at 5:45pm

CATCHWORDS
Migration – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner (Temporary)) – Whether a genuine spousal relationship exists – Joint finances – Shared household responsibilities – Ongoing commitment – Shared responsibility for young child – 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 22 July 2016 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 30 May 2015 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.820.211 because the delegate was not satisfied that the review applicant is the spouse or de facto partner of the sponsor.

4. The review applicant appeared before the Tribunal on 23 April 2018 to give evidence and present arguments. The Tribunal also received oral evidence from [the sponsor]. The hearing was conducted in English. A Punjabi language interpreter attended the hearing but was not called upon to interpret.

5. The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is whether the review applicant is the de facto partner or spouse of the sponsor.

   Whether the parties are in a spouse or de facto relationship

8. 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 by grant [in] November 2016.

9. ‘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?

10. If the parties are validly married, they may meet the requirements of a spousal relationship, but not a de facto relationship. The review applicant presented with his application a copy of the marriage certificate showing the marriage was registered in Canberra [in] January 2015. There is nothing to suggest that the marriage is not valid. On the evidence, the Tribunal accepts 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?

11. The Tribunal has considered the documentary evidence of the relationship that was submitted with the primary application and notes there is a substantial amount of additional evidence before the Tribunal. The Tribunal has also had the benefit of the couple’s oral evidence and found them to be candid and credible witnesses.

    Background to the relationship

12. The Tribunal accepts that until the couple were married, the review applicant was living in Melbourne and the sponsor was living in Sydney. Based on written and oral evidence before it, the Tribunal is satisfied that the couple first started corresponding via Facebook (due to some mutual acquaintances on the social network) in May 2013. The Tribunal accepts that following a period of regular correspondence over subsequent weeks by various means (including phone, text and Facebook), the review applicant travelled to Sydney in June 2013 to meet the sponsor in person for the first time. The Tribunal notes that the couple gave highly consistent oral evidence regarding the circumstances of their first meeting. Following this initial trip to Sydney, the review applicant and sponsor continued to communicate on a near daily basis, and after a period the review applicant began to visit the sponsor in Sydney at regular intervals, approximately every 4-5 weeks. The Tribunal notes there is some documentary evidence (in the form of multiple Jetstar flight itineraries in the review applicant’s name and hotel booking receipts, consistent with these dates) to support claims of frequent travel to Sydney by the review applicant over this period. The Tribunal accepts that for cultural reasons the review applicant and sponsor would not stay together during these trips. The Tribunal accepts that the primary purpose of the review applicant’s trips to Sydney during this period was to visit and spend time with the sponsor.

13. As their relationship developed in 2013, the couple discussed marriage and plans to live together. In January 2014 the review applicant travelled to India to discuss his plans to marry the sponsor with his parents and request their blessing, consistent with cultural norms. The sponsor flew back to Sydney in February 2014 and proposed marriage to the sponsor the day after he arrived in Sydney from India. The Tribunal notes that the review applicant’s movement records support this timeline. The Tribunal notes that both the review applicant and sponsor gave specific, detailed and highly consistent oral evidence regarding the circumstances of the marriage proposal, including the timing, location and specific gifts that were exchanged. The Tribunal notes also that the couple gave accurate and consistent evidence about their respective living arrangements and employment histories throughout this period. The Tribunal accepts that, now engaged, the couple continued to communicate daily and the review applicant continued to travel to Sydney at regular intervals to visit the sponsor throughout 2014. The Tribunal notes and accepts that for cultural reasons the couple did not think it appropriate to reside together until they were married.

14. The couple married in Canberra [in] January 2015, in the company of [a number of] friends and family members, including the sponsor’s brother-in-law and sister who live in Canberra. The Tribunal accepts that shortly after the wedding the review applicant drove to Sydney, helped the sponsor pack, then drove back to Melbourne with the sponsor to begin their married life together. The couple moved into the review applicant’s rented apartment in [Suburb 1], where the couple still reside. The Tribunal accepts that the couple also held a cultural Sikh wedding ceremony in Melbourne [a particular date in] January 2016 (their first wedding anniversary), which was attended by [a number of] people, including the review applicant’s parents who were visiting from India at the time. The Tribunal has viewed photos of both wedding ceremonies/celebrations. The Tribunal accepts the review applicant has not been previously married and the sponsor was previously married and was legally divorced [in] June 2014 after an extended separation from her first husband.

15. The Tribunal notes that since the delegate’s decision the couple has given birth to a baby boy, born [in] 2018 at [a particular hospital].

    The financial aspects of the relationship

16. Joint ownership of real estate or other major assets, joint liabilities, the extent of any pooling of financial resources, whether one person in the relationship owes any legal obligation in respect of the other and the basis of any sharing of day-to-day household expenses are relevant factors to consider when assessing the financial aspects of the relationship.

17. The Tribunal questioned the couple about their financial arrangements. Both the review applicant and the sponsor gave consistent oral evidence about each other’s employment and financial affairs. The Tribunal accepts that the review applicant works [earning] between [amount] per week. The Tribunal accepts that the sponsor is employed as [a particular occupation] at a [particular business] at [a] Shopping Centre and earns between [amount] per week after tax. The Tribunal accepts that the sponsor is currently on maternity leave and receives a related Centrelink payment that is deposited into her personal bank account. 

18. There is evidence that the review applicant and the sponsor operate a joint bank account with [a] Bank. The Tribunal notes that the parties have submitted multiple financial statements for the joint account covering a period from June 2015 to April 2017. Although the statements do not form a complete financial history over this period, the documents consistently list transactions for various living expenses. The Tribunal accepts that although the sponsor is primarily responsible for the management of household finances including the physical payment of bills, the joint account is contributed to, and accessed by, both the review applicant and the sponsor to cover general household and living expenses. The joint account statements provide evidence of both salaries being deposited and various, regular transactions relating to the payment of rent, bills, groceries and other joint living expenses. The Tribunal accepts that the review applicant has a personal bank account that is seldom used.

19. The Tribunal accepts that the couple reside at a rental property in [Suburb 1], for which they share the [weekly] rent. The Tribunal accepts that the sponsor purchased a block of land in May 2017 at [a particular site] in [a particular suburb] for [amount]. The Tribunal notes the title of the land is in the sponsor’s name only, but accepts this is due to the uncertainty surrounding the review applicant’s visa status, and the fact he was not able to be a joint signatory on the [loan]. The Tribunal notes there is evidence of loan repayments in the transaction records of the aforementioned joint [account], to which both the review applicant and sponsor contribute. The Tribunal accepts that the couple intend to apply for an additional loan to build a family home at the site at a later date. The Tribunal notes the highly consistent oral evidence given by the couple regarding the type and size of the home they intend to build at the site, and a building quotation and receipt from [a particular home building business] submitted as evidence that is consistent with these plans. The Tribunal accepts that the sponsor owns the car the review applicant uses for his work [and] the couple share costs associated with the insurance, running and maintenance of the vehicle.

20. The Tribunal places some weight on the financial aspects of the relationship.

    The nature of the household

21. Joint responsibility for the care and support of children, the living arrangements of the persons and any sharing of the responsibility for housework are matters to be considered when assessing the nature of the household.

22. The couple spoke about their living arrangements. The Tribunal is satisfied that the review applicant and sponsor have resided together in a rental apartment in [Suburb 1] since February 2015. The Tribunal accepts that for cultural reasons the couple did not think it was appropriate to cohabitate prior to their wedding [in] January 2015. The Tribunal notes and accepts that when the sponsor moved into the review applicant’s rental apartment following the wedding, the review applicant’s friend and housemate was still living there. The Tribunal accepts that the review applicant and his friend/housemate had lived together for an extended period prior to the marriage and that this was a temporary arrangement until the friend/housemate himself got married and moved out. The Tribunal is satisfied that this living arrangement was not inconsistent with a genuine spousal relationship, given the particular circumstances of the newlywed couple. In light of all the evidence before it, the Tribunal is not concerned by the fact the couple shared the rental apartment they lived in together for a period in 2015, in the same way that the delegate had been. 

23. With respect to the sharing of the responsibility for housework, both parties told the Tribunal that they share household responsibilities and gave consistent oral evidence as to the general breakdown of these responsibilities. The Tribunal accepts that the couple share responsibility for grocery shopping and cooking, and generally do both of these tasks together. The review applicant is mostly responsible for cleaning and general household chores. The review applicant’s mother was living with the couple for a period before and after the birth of their child in [2018], and the sponsor’s mother is now visiting the couple for an extended period and assists with household related chores.

24. The Tribunal notes and accepts that since the delegate’s decision, the sponsor has given birth to a baby boy, born [in] 2018 at [a particular hospital]. The Tribunal has viewed a registered copy of the child’s birth certificate which lists the review applicant as the father. The Tribunal is satisfied that the review applicant is the biological father of the child. The Tribunal accepts the consistent and credible oral evidence of the couple that they both have joint responsibility for the care and support of their son. 

25. The Tribunal gives significant weight to the nature of the household.

    The social aspects of the relationship

26. Whether the persons represent themselves to other people as being married to each other, the opinion of the persons’ friends and acquaintances about the nature of the relationship and any basis on which the persons plan and undertake joint social activities are relevant matters to be considered in determining the social aspects of the relationship.

27. The Tribunal is satisfied that the parties have represented themselves socially to their family and friends as a couple and continue to do so at the time of this decision. The Tribunal has considered evidence relating to the social aspects of the relationship, including numerous printed photos provided to the Tribunal of the couple travelling and socialising together in various settings, and the consistent oral evidence of the couple at the hearing. The Tribunal accepts that the couple’s social life has been curtailed since the birth of their son in [2018]. The Tribunal accepts that both the mother of the sponsor and the mother and father of the review applicant have visited and stayed with the couple for extended periods since the birth of their son.

28. The Tribunal asked the couple about their joint social activities and holidays. They gave consistent oral evidence of holidays that they had undertaken together, both mentioning trips to the Gold Coast, Adelaide and Canberra. They also gave consistent oral evidence of the things that they enjoyed doing together: watching movies on Netflix, going to specific restaurants and reading books. The Tribunal notes that there is documentary evidence, including photos, on the Tribunal’s file corroborating some these claims. The Tribunal accepts the couple’s claims.

29. In view of the evidence before the Tribunal in relation to the social aspects of the relationship, the Tribunal places significant weight on the social and public recognition of the relationship.

    The nature of the persons’ commitment to each other

30. The duration of the relationship, the length of time during which the persons have lived together, the degree of companionship and emotional support that the persons draw from each other, and whether the persons see their relationship as long-term are all aspects to be considered in determining the nature of the person’s commitment to each other.

31. The consistent evidence of the couple is that they have been in an exclusive and committed relationship since at least [a particular date in] February 2014 (when the review applicant formally proposed to the sponsor), having first met in June 2013 while the review applicant was living in Melbourne and the sponsor was living in Sydney following a period of correspondence first through Facebook and then by phone. The couple were married in January 2015 and began residing together shortly afterwards in February 2015 when the sponsor moved to Melbourne and into the review applicant’s rented apartment in [Suburb 1], where the couple still reside. The Tribunal accepts that for cultural reasons the couple did not think it appropriate to reside together until they were married.

32. Both the review applicant and sponsor impressed the Tribunal as credible witnesses who spoke about their relationship with candour and honesty. Their evidence about the inception and development of their relationship was both detailed and wholly consistent. The Tribunal questioned both parties about their familiarity with each other and is satisfied that they both demonstrated detailed knowledge of each other’s lives suggestive of a couple in a genuine and ongoing spousal relationship.

33. The review applicant gave a clear example of the companionship and emotional support that the couple draws from each other. He explained that the sponsor had suffered two miscarriages in 2016 (a claim that is supported by some documentary evidence) and that this had been a very testing time for both parties. The review applicant explained that they relied on each other for emotional support to get through this challenging life experience.

34. The Tribunal accepts that since the birth of their son in [2018], the couple have had joint responsibility for the care and support of the child. The Tribunal regards this as strong evidence of the nature of the couple’s commitment to one another, and the genuineness of the relationship. The couple also gave consistent evidence about the day their son was born and the antenatal classes the couple had attended during the pregnancy to help prepare them for the birth. From knowledge he had learnt in these classes, the review applicant spoke of timing his wife’s contractions when she went into labour at home and liaised with the hospital staff about when they should come into the hospital. Before the sponsor began maternity leave, the review applicant also spoke of structuring his somewhat flexible working hours [around] when the sponsor needed to be dropped-off and pick-up from her work.

1. In light all the evidence that is before it, the Tribunal finds that the parties see their relationship as a long-term one.

2. Accordingly, the Tribunal is satisfied, considering all of the evidence cumulatively, that the review applicant and sponsor have demonstrated, and continue to demonstrate, a level of commitment to one another and to their relationship as contemplated in the Regulations.

3. The Tribunal places great weight on the nature of each person’s commitment to the other.

   Conclusion on s.5F(2) requirements 

4. On the basis of the above the Tribunal is satisfied 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).

5. The Tribunal is satisfied that at the time of application and the time of decision the review applicant and sponsor have a mutual commitment to a shared life as a married couple to the exclusion of all others. The Tribunal is satisfied that the relationship is genuine and continuing. The couple therefore meet the requirements of s.5F(2)(b) and s.5F(2)(c) for a married relationship.

6. Additionally, the Tribunal is satisfied that at the time of application and time of decision the review applicant and the sponsor live together. Accordingly, the couple meets the requirements of s.5F(2)(d) for a married relationship.

7. For these reasons the Tribunal finds that at the time of application and time of decision the review applicant and sponsor 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.

8. The Tribunal is satisfied that at the time of application, and time of decision, the applicant was the spouse of a 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).

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

10. Based on the Department’s movement records, the Tribunal also finds that at the time of application the review applicant was the holder of a substantive visa, and therefore cl.820.211(2)(d) does not apply.

11. 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(1).

12. 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

13. 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; and

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

    Scott Clarey
    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).