1612870 (Migration)

[2018] AATA 2518

1612870 (Migration) [2018] AATA 2518 (29 March 2018)

DECISION RECORD

DIVISION:Migration and Refugee Division

CASE NUMBER:  1612870

MEMBER:Helen Kroger

DATE:29 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 29 March 2018 at 2:12pm  

CATCHWORDS
Migration – Partner (Temporary) (Class UK) visa – Subclass 820 – cl.820.211 – Sufficient evidence of relationship – Longstanding relationship – Financial hardship – Decision under review remitted

LEGISLATION
Migration Act 1958, ss 5F, 338, 347
Migration Regulations 1994, rr 1.09, 1.15A, 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.

VISA APPLICATION REVIEW – SUB CLASS 820

1. The visa applicant applied to the Department for the visa on 16^th May 2015.

2. The delegate refused to grant the visa on 3^rd August 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 16 August 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 29th 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 towards the end of July 2014 on a working holiday visa, to join his brother who lived in [Suburb 1], Melbourne.  The applicant submitted that he had worked in a [business] for 11 years in the United Kingdom, was “bored”, and with his brother’s encouragement, came to Australia to assist him in setting up a new business.

2. He commenced chatting with the sponsor online on a dating site [in] August 2014 and met her in person for the first time in September 2014.  The relationship developed quickly and the sponsor proposed in January 2015 and married [in] May 2015.  The applicant moved in with the sponsor and her sister in their rental property in [Suburb 2] after he proposed to her. Following the birth of the parties son in [2016], they moved to [Suburb 3] where the sponsor’s family live and moved in the same residence where they continue to reside in the shared household.

3. The parties have lived together continuously since January 2015.

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 [deleted].

   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 [in] May 2015 [in] Victoria. 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 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 16^th May 2015, with a quantity of original documentation and photos being tabled to the Tribunal before the hearing.

The financial aspects of the relationship

1. The Tribunal must consider all the financial aspects of the relationship including any joint ownership of real estate or other major assets; any joint liabilities; the extent of any pooling of financial resources (especially in relation to major financial commitments); whether either 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.

2. The Review Applicant and sponsor both work full time.  The applicant works at [a business] in [Suburb 3] and the sponsor has recently commenced work at [a business] where she works shift hours, 7-9am and 2-6pm.  The parties do not hold significant financial assets or share liabilities and they submitted that they are saving to buy a local block of land to build a house.  The parties live with the parents of the sponsor since the birth of their son in [2016], and pay a weekly rent of $150 to the sponsor’s parents.  They also pool their finances to contribute to household bills that come into the shared household.  The parties hold a joint account with the Commonwealth bank and have savings [that] they will direct to a deposit for a land purchase.  Given the nature of the household, and that the parties have moved into the home of the parents to save money, the Tribunal notes that the support that the shared financial contributions are not recorded on any utilities or household expense accounts, as these are all in the name of the parents.

3. The parties lived in rental accommodation in [Suburb 2] prior to moving to [Suburb 3] where the sponsor and sister of the sponsor were already renting a property.  The lease for this property was transferred into the parties’ joint names following the applicant moving into the rental property.  Whilst there is limited documentation showing shared responsibility for the payment of household expenses and accounts for this period, the Tribunal is satisfied that the applicant made contributions and supported the overall costs in living in this rental property. 

4. The Tribunal notes that whilst the parties do not hold or share any significant financial or property assets or debts, the evidence provided indicates shared responsibility for some accounts and household expenses.            

The nature of the household

1. In assessing the nature of the household, the Tribunal gives weight to evidence of joint responsibility or shared responsibility for housework and chores, for the care and support of any children (where relevant), the living arrangements of the parties and any sharing of the responsibility for housework.

2. Oral evidence was provided at the hearing along with documentation earlier submitted to the Tribunal in regard to the nature of the household.  Both parties work full time, with the sponsor engaged in shift work [and] the sponsor working full time at the [business].  They have a two year old son and share the care and support for him between them.  Both parties contribute to the demands of running the household although the Tribunal notes that the practical household demands on them are different because of their sharing arrangements.  The parties share one bedroom in the home with their son.  When the parties were living in the rental accommodation, prior to moving to [Suburb 3] in August 2017, the sponsor was home on maternity leave and assumed the bulk of the cooking and cleaning responsibilities and was the primary carer for their son.  The applicant would assist when he returned home of an evening.  They shared shopping, laundry duties and other miscellaneous household chores.  At the hearing it was evident that the applicant was a “hands on” father by virtue of the way he intuitively attended to the parties’ son.  

   On the evidence provided, the Tribunal notes that there is sharing of household tasks between the Review Applicant and the sponsor.  The Tribunal recognises the nature of the established household, the reality of living arrangements when the parties reside in the parent’s home and notes that this would have a significant influence on the current household activities.  It is important note that there is evidence of shared responsibilities when the parties lived on their own with their son.   

   The social aspects of the relationship

3. In assessing the social aspects of a relationship the Tribunal must have regard to all the social circumstances of the relationship including 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.

4. The Tribunal is in receipt of a significant quantity of photos and images of the parties’ relationship since its inception.  The sponsor enjoys posting photos on [social media] and these images show consistent and on-going interaction with friends and family.  The posts and photos catalogue a timeline of the relationship, from their time when renting in [Suburb 2] to their more recent activities.  The sponsor has a close relationship with her extended family and the Tribunal is satisfied that there is widespread recognition of the sponsor as the husband of the sponsor and the father of their son.  Evidence was also provided with the applicant’s brother who lives in [Suburb 1] with his wife and children.  Joint activities between the families reflect the way in which the parties’ relationship is considered and respected.  One of the applicant’s brothers who resides in the United Kingdom, joined the parties to celebrate Christmas in Australia. Whilst there is limited evidence of the attitude of the extended applicant’s family in the UK, the Tribunal is satisfied that there is widespread recognition of the relationship here in Australia.

   The nature of the person’s commitment to each other

5. In assessing commitment to each other, the Tribunal must have regard to 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 the relationship as a long term one.

6. The Tribunal has had regard to the duration of the claimed relationship, that they first met in 2014, that they moved into the same residence in January 2015, married in May 2015 and have lived continuously together since January 2015.

7. The parties have a son who was born in [2016] and have made arrangements that will assist them in providing for their future needs.  The decision to move from [Suburb 2] to [Suburb 3] to be close to the sponsor’s parents since the son’s birth indicates a long term commitment.  The applicant submitted that the decision was made between the parties to move to the country for a “quiet life” and to be close to the parents.  The decision to live with the parents in order to minimise daily costs was undertaken so that they can save more efficiently and quickly for a deposit on a block of land to build a house.  The parties have been saving money and the sponsor has returned to work to assist financially.  In response to questioning, the parties provided evidence that they have not made any further concrete arrangements pending the outcome of the visa appeal.  The nature and direct way in which this was addressed to the Tribunal was significant.  

8. The Tribunal is satisfied that the parties provide ongoing emotional support and companionship to each other and present as a couple committed to having a future together, whilst noting that the motives, hopes and wishes of both parties may not be consistent.

9. During the hearing, the Tribunal asked the applicant if he would consider providing a paternity test and undertake a DNA analysis to ascertain conclusively that he was the biological father of the son.  The Tribunal was persuaded by the applicant’s response that he was willing to undertake such a test and was only hesitant in his comments regarding the possible financial cost.  Noting the unprompted response from the applicant, the Tribunal is satisfied that a DNA test is not necessary for this decision, and that the applicant is the biological father of the son.   The Tribunal has been provided with a copy of the son’s birth certificate. 

10. 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).