1615873 (Migration)

[2017] AATA 3160

1615873 (Migration) [2017] AATA 3160 (26 September 2017)

Corrigendum

DIVISION:Migration & Refugee Division

CASE NUMBER:  1615873

MEMBER:Adrienne Millbank

DATE OF DECISION:  26 September 2017

DATE CORRIGENDUM

SIGNED:27 September 2017

PLACE OF DECISION:  Brisbane

AMENDMENT:  The following corrections are made to the decision:

1. The date of decision stated on the front page of the decision record is 29 September 2017

2. The date of decision stated on the front page of the decision record should state 26 September 2017

   DECISION RECORD

   DIVISION:Migration & Refugee Division

   CASE NUMBER:  1615873

   MEMBER:Adrienne Millbank

   DATE:29 September 2017

   PLACE OF DECISION:  Brisbane

   DECISION:The Tribunal affirms the decision not to grant the applicant a Partner (Residence) (Class BS) visa.

   Statement made on 26 September 2017 at 5:13pm

   CATCHWORDS

   Migration – Partner (Residence) (Class BS) visa – Subclass 801 (Partner) – Genuine spousal relationship – Marriage Certificate – Social aspects of the relationship – Sponsor’s knowledge of applicant’s banking arrangement – Pooling of financial resources – No progress on short term relationship goals – Decision under review affirmed

   LEGISLATION
   Migration Act 1958 (Cth), ss 5CB, 5F, 65, 359AA

   Migration Regulations 1994 (Cth), r 1.15A, Schedule 2, cl 801.221

   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

3. This is an application for review of a decision made by a delegate of the Minister for Immigration on 19 September 2016 to refuse to grant the applicant a Partner (Residence) (Class BS) visa under s.65 of the Migration Act 1958 (the Act).

4. The applicant applied for the visa on 9 October 2013 on the basis of his relationship with his sponsor. At that time, Class BS contained only one subclass: Subclass 801 (Partner). The criteria for the grant of this visa are set out in Part 801 of Schedule 2 to the Migration Regulations 1994 (the Regulations).

5. The Delegate refused to grant the visa on the basis that the applicant did not satisfy cl.801.221(2). On the information provided, which the Delegate described as limited, the Delegate was not satisfied that the applicant was in a genuine and continuing relationship with his sponsor as defined in sections 5F(2)(c) and 5CB(2)(b) of the Act.

6. On 3 August 2017 the Tribunal wrote to the applicant, through his representative, requesting him to provide by 17 August 2017 information to support his claim that he and the sponsor were in a spouse relationship. Further information was provided to the Tribunal on 17 August 2017.

7. The applicant appeared before the Tribunal on 13 September 2017 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor and two supporting witnesses.

8. The applicant was advised at hearing, pursuant to section 359AA of the Act, that the Tribunal had information that would lead or could contribute to the decision under review being affirmed. The Tribunal advised that this information was on the departmental file and that it comprised the applicant’s student visa history and submissions made by the parties at the time of application. The applicant was advised that he could seek an adjournment and consult with his agent when concerns arising from this information were raised, or at any other time. The applicant did not seek an adjournment.

9. The applicant was represented in relation to the review by his registered migration agent, who attended the hearing.

10. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    Background

11. The applicant was born in Pakistan in [year] and was [age] years old at time of decision. He claims he was brought up in [City 1], in [Country 1], living there with his family from 1994 until 2010. He first arrived in Australia [in] October 2010 on a Student [visa], which expired on 30 August 2014. At this time he was enrolled in a [course] in [Field 1]. Since arriving in Australia he has worked as [Occupation 1], [Occupation 2] and [Occupation 3].

12. The sponsor was born in New Zealand in [year] and was [age] years old at time of decision. She arrived in Australia [in] July 2000 to attend a family function and remained to live near family members. She described her occupation at time of application as [Occupation 4].  At the time of decision she was working in [Occupation 5].

13. The parties established contact through an online dating website and met in person [in] July 2012 in [location]. They claim that they moved in together several months after their first meeting. They married [in] June 2013, and lodged the Partner visa claim on 9 October 2013.

    CONSIDERATION OF CLAIMS AND EVIDENCE

14. The issue in the present case is whether the applicant and the sponsor were in a genuine spousal relationship at the time of this decision.

15. Relevantly to this matter, cl.801.221(2)(c) requires that at the time of this decision, the applicant is the spouse of the ‘sponsoring partner’, who must be an Australian citizen or Australian permanent resident or an eligible New Zealand citizen who was specified in the related Subclass 820 visa application as the spouse or de facto partner of the applicant. In the present case the applicant claims to be the spouse of the sponsor who is an eligible New Zealand citizen and was identified in the Subclass 820 visa application. On the evidence before it, the Tribunal is satisfied that the sponsor is the ‘sponsoring partner’ of the applicant.

16. ‘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). 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 visa applicant’s and sponsor’s household and their commitment to each other as set out in r.1.15A(3), which is extracted in the attachment to this decision.

17. The parties provided a copy of their [marriage] certificate, certifying that they married in the [Registry] Office [in] June 2013. 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).

    Are the other requirements for a spousal relationship met?

    Financial aspects of the relationship

18. Evidence was provided that the parties have held a joint bank account since July 2013. A statement of transactions from [July]–[August] 2013 shows a number of small transactions of less than $10, and a number of transfers to and from other bank accounts. The parties’ agent in a written submission to the Tribunal argued that more recent statements of transactions from this account show ‘more and more pooling’.  Transactions from [December] 2013–[June] 2016 however also show a number of small transactions of less that $10 that appear to be one-person meal-type purchases, and a large number of transfers into and out of other unidentified bank accounts. They show that the sponsor’s salary was going into the account in 2016, but, apart from irregular earnings while [working in Occupation 3], they do not show the applicant’s income being deposited into the joint account.

19. At hearing the applicant acknowledged that he maintained his own personal bank account. When the Tribunal asked the sponsor whether she also maintained her own account she said that she did not. When the Tribunal asked the sponsor about the applicant’s account, she replied that she knew he maintained a separate account, but stated she didn’t know why or what he did with whatever funds were in the account. In response to questioning she stated that she has not asked the applicant why he maintains a separate bank account.  She said she thought that he might use it to send money to his family in Pakistan. The applicant stated that he has sent money to his mother in Pakistan to buy birthday gifts for his sisters.

20. The bank statements provided do not show that regular rental or utilities payments, commensurate with financing the running of a joint household, are made from the parties’ joint bank account. The applicant at hearing explained that he and the sponsor are living and have in fact mostly lived since they have been together in a shared household. At the time of decision there were nine occupants in the house: the sponsor’s parents; the sponsor’s brother and sister-in law and their two children; a nephew who has a disability and is cared for by the sponsor’s mother; the applicant and the sponsor. The applicant said that the current arrangement is that the sponsor’s father pays the rent and the cost of utilities for the household, and the applicant pays for [cable TV]. The sponsor, when questioned, said that there was no formal arrangement for the purchase of food and other household items. She said that all the adults in the house apart from her mother were employed but not all of the time (the sponsor’s father and brother are fly-in-fly-out [Occupation 6]) and that everyone contributed according to whether they were employed or not.

21. Evidence was provided that the parties have taken out a joint loan in order to pay down credit card debt linked to the joint account; that they have registered and insured a car in joint names; and that as at [November] 2016 each was named by the other as beneficiary in their superannuation accounts.

22. At time of application the parties identified their short-term goals as purchasing their own home and starting a family. When the Tribunal asked the applicant what he and the sponsor had done to achieve their house-buying goal since they married over four years ago, he stated that this remained an intention. He said that they had a joint savings account as well as the operational account, but that they had not succeeded in making savings. Copies of transactions from the savings account were not provided to the Tribunal. The applicant stated that the parties still intended to buy a home of their own, and that their intention was to purchase a large house near the sponsor’s family so that members of the sponsor’s family could stay with them whenever they wanted.  

23. The Tribunal asked the applicant about his employment history. He stated that he started as [Occupation 1] in November 2010, then became [Occupation 2], then worked as [Occupation 3], and at the time of decision was employed full-time as [Occupation 2] at a [location]. When asked about how he managed this workload with his study commitments, as he was on a Student visa from his entry into Australia in October 2010 to the lodgement of his Partner visa application in October 2013, he stated that he only worked part-time until he obtained a Bridging visa with work rights in association with his Partner visa application. The sponsor, when questioned subsequently, stated that the applicant did not attend any courses or do any study from the time they began a relationship.  When asked why, she stated that he was fully occupied with the relationship and with his employment.

    Nature of the household

24. The parties provided copies of a number of jointly signed lease agreements. Some of these included the sponsor’s father as a joint tenant. At hearing, as noted, the parties advised that at the time of decision they were living in a household of nine people, themselves and seven other members of the sponsor’s family. The applicant further advised that during most of the time he and the sponsor had lived together it had been in houses shared with members of the sponsor’s family.

25. As noted above, the parties at the time of decision were not responsible for rental or payment of utilities in the house they were living in. The sponsor declared that the whole household shared meals together, that the sponsor’s mother did not work and stayed at home caring for a disabled nephew, and that all members of the household shared the shopping and cooking and housework, depending on their work commitments.

    Social aspects of the relationship

26. Copies of birthday cards in which the parties declare their love and commitment to each other, and printouts of [social media] posts where the parties are shown to be celebrating each other’s birthdays, were provided to the Tribunal. The sponsor confirmed to the Tribunal that birthdays and their celebrations were important to her because of her family-centred Maori culture. When the parties were each asked the age of the other, they hesitated and stated each other’s date of birth. The applicant calculated that the sponsor was [age].  At the date of the hearing the sponsor was [a year younger] and would not turn [age] until December. The sponsor acknowledged that she did not know the ages, even approximately, of the applicant’s parents or sisters. She at first stated that the sponsor’s parents were ‘very old’, then that she thought they could be in their 50s or 60s. She said that she didn’t know how old the applicant was when he moved with his family from Pakistan to [City 1].

27. At hearing the sponsor stated that she was brought up as a Mormon but was not a regular church-goer.  The applicant stated that he was a Muslim but relaxed about religious observation. He advised that he drank beer and vodka and worked as [Occupation 2], and directed the Tribunal’s attention to photographic evidence of this.  He claimed that he no longer had a relationship with his father because his father disapproves of his non-Muslim marriage and lifestyle. He claimed that he has maintained a relationship with his mother and sisters who have returned to Pakistan from [City 1]. The sponsor claimed that she had spoken to the sponsor’s mother, via [online chat], but acknowledged that they had exchanged the barest of greetings as they do not share a language. She stated that she had not spoken with the applicant’s father.

28. Photos were provided showing the parties at their wedding, with the sponsor’s family members, in New Zealand with the sponsor’s family members and in [another country] with friends. The Tribunal accepts that the parties have travelled together and that they have socialised with the sponsor’s family and some mutual friends. Statutory declarations signed in 2013, 2015 and 2017 were provided by members of the sponsor’s family and friends and former colleagues of the applicant. All the declarants stated that they knew the parties to be married and that they had observed them to be happy in the relationship.

    Nature of persons' commitment to each other

29. The parties declared in their relationship statements that they have been totally open and have shared everything about themselves with each other. When asked at hearing when and why the applicant came to Australia the sponsor replied that he came to Australia to study [in Field 2], but she didn’t know when he came. She subsequently stated that she thought he came around 2010. As noted above, she advised that the applicant gave up his studies when he began a relationship with her. When the applicant was asked about his future work plans he stated that he intended to resume his [Field 2] studies with view to qualifying and working as [Occupation 7]. When the sponsor was asked about the applicant’s future work plans she stated that he intended to get into [Occupation 6] so as to earn more money.

30. When asked about the short-term relationship intention the parties declared at the time of application, to start a family, they both claimed that they wanted to have a child but had been unsuccessful in their efforts to conceive. The Tribunal pointed out that the sponsor’s mother had, in a statutory declaration signed [in] August 2017 declared her approval of the parties’ choice to postpone child-rearing so as to be able to enjoy a social life and travel together. The sponsor in reply claimed that her mother knew that the parties wanted and had been trying to have a baby, but that her mother was reluctant to acknowledge this information because of Kiwi cultural constraints regarding gynaecological issues.

31. The Tribunal asked the sponsor if she had sought medical advice and assistance regarding the parties’ inability to conceive a baby. The sponsor stated that she had, and undertook to obtain a letter from her doctor to this effect. On 15 September 2017 the sponsor, through her representative, provided a Medical Certificate from a medical practitioner at [a] Medical Centre certifying that: ‘(The sponsor) has ongoing [symptoms] most likely due to [a medical condition] ([details of condition]). She is actively seeking medical treatment with [specialist] at [a] Hospital’. The Tribunal accepts this medical advice, but notes that no confirmation was provided that the sponsor has suffered from or has sought treatment for infertility.

32. As noted, printouts of [social media] entries were provided along with Birthday and Valentine’s Day greeting cards in which the parties declare their love and commitment to each other. As noted, the sponsor claimed that birthdays are significant in her Maori culture and important to her. The applicant, when the sponsor admitted that she did not know the ages of the sponsor’s parents and sisters, advised the Tribunal that he was not interested in people’s ages, and that he himself did not know the ages of his own father and mother or brothers or sisters. The Tribunal accepts that the applicant might not be interested in people’s ages, but does not find it credible that he would not know the ages of his parents or siblings. As noted above, the parties claimed that the applicant used his own personal bank account to send birthday gifts to his younger sisters in Pakistan.

    Any other relevant considerations.

33. In his statutory declaration signed [in] September 2013 the applicant wrote:

    My nationality is from Pakistan i been brought up in [Country 1] and I moved to Australia [in] October 2010 for better future where i met the love of my life (the sponsor). We met on a online dating website ([Website name]) where we had been chatting to each other and getting To kno each other more after a few weeks we had exchanged numbers then it lead in to our first date Where we were both open with each other and shared alot over dinner we both got a lot incommon’. (Sic)

34. In a supporting statutory declaration signed [in] August 2017 a friend and former colleague of the applicant wrote:  

    I moved to Australia in October 2010. I met (the applicant) in November 2010 through a mutual friend. We have been good friends since. We worked together in the [same] industry for a few years and later on for [a company] as [Occupation 3]. I late 2012 (the applicant) told me he is seeing a girl …

35. As noted, at hearing the applicant acknowledged that he had completed none of his enrolled courses of study. He arrived in Australia enrolled in a [Field 1] course, but switched after his arrival to a [Field 2 course].  He acknowledged that he had also not completed any of this coursework. At hearing he stated that his father paid his tuition fees but that he had supported himself while in Australia by working. He claimed that he only worked part-time until he received his Bridging visa with work rights in association with his Partner visa application.

36. The Tribunal asked the applicant, on the basis of the lack of evidence of any progression or even attendance in the courses of study he enrolled in, whether his intention had not been from the outset to work and obtain permanent residence in Australia. The Tribunal asked the applicant why he would go on-line to seek a marriage partner at a time when he only had temporary residence as a student, and when that was likely to be cancelled because of his lack of attendance or progression in his coursework. The applicant stated in response that he did not have any family in Australia and was lonely. The Tribunal pointed out that he had a number of friends who had provided written testimonials in support of his Partner visa application. The applicant then stated that he went to an on-line matchmaker site in June 2012 because he was of an age where he felt the need for a marriage partner. He advised that his ‘intentions changed’ regarding his life plans while he was living in Australia.

    Findings

1. The Tribunal acknowledges that the motive of obtaining a migration outcome does not preclude the possibility of a genuine relationship, and has weighed the evidence in favour of the parties being in a genuine spousal relationship at time of decision against evidence that they are not.

2. The Tribunal accepts that the parties are recognised as having married by members of the sponsor’s family and that members of the sponsor’s family and friends and colleagues support the applicant’s Partner visa application. The Tribunal accepts, on the advice of the applicant at hearing, that he has informed his parents that he has married in Australia and applied for permanent residence through his Partner visa application. The Tribunal is not satisfied and no evidence was provided that the parties are recognised and related to as being in a genuine, long-term spousal relationship by members of the applicant’s family in Pakistan and [Country 1].

3. The Tribunal accepts that the applicant has contributed to expenses within houses he has lived in with the sponsor and her family; that he opened a joint bank account with the applicant; that the parties have a shared liability in the form of credit card debt linked to this account; that they have registered a car in joint names; and that they have named each other as beneficiaries in their superannuation accounts. The Tribunal nevertheless is not satisfied that the parties have in fact pooled their financial resources. The statements of transactions from the parties’ joint bank account do not show, and the sponsor’s lack of knowledge about the applicant’s personal banking arrangements does not support, such a finding.

4. The Tribunal accepts that the parties have known each other since 2012 when the applicant established contact with the sponsor through an on-line dating website.  The Tribunal notes that they have sent each other Birthday and Valentine’s Day cards in which they declare love and commitment to each other. The Tribunal also notes that the parties have made no progress towards the short-term relationship goals that they claimed to have at the time of application: to establish a household of their own and to start a family.

5. Having considered r.1.15A(3) matters and weighed and balanced the evidence, the Tribunal is not satisfied that the parties have a mutual commitment to a shared life to the exclusion of others. The Tribunal is not satisfied that they intend to live together or not separately and apart on a permanent basis.

6. Given these findings the Tribunal is not satisfied that the requirements of s.5F(2) are met at the time of this decision. Therefore the applicant does not meet cl.801.221(2)(c).

7. The applicant has not claimed, and there is no evidence before the Tribunal, that the applicant meets the alternative criteria in cl.801.221 (2A), (3), (4), (5) or (6).

8. For the reasons above, the applicant does not satisfy the criteria for the grant of the visa.

   decision

9. The Tribunal affirms the decision not to grant the applicant a Partner (Residence) (Class BS) visa.

   Adrienne Millbank
   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).