1621053 (Migration)

[2018] AATA 4299

1621053 (Migration) [2018] AATA 4299 (14 August 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1621053

MEMBER:Scott Clarey

DATE:14 August 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 of Schedule 2 to the Regulations; and

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

STATEMENT MADE ON 14 AUGUST 2018 AT 11:37AM

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Spouse) – spouse or de facto partner – marriage certificate – related by blood – joint bank account – financial dependency – beneficiary on superannuation and will – sharing of household duties – cohabitation history – attendance at social events – sponsor’s pregnancy – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5F, 65
Migration Regulations 1994 (Cth), r 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.

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 6 December 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 21 July 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).

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 applicant appeared before the Tribunal on 13 July 2018 to give evidence and present arguments. The Tribunal also received oral evidence from: [name] (sponsor), [and two witnesses]. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.

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 ([Mr A]) is the de facto partner or spouse of the sponsor ([Ms B]).

   Relevant background

8. [Mr A] is [age] year old German national who was born in [Country 1]. [Ms B] is [age] year old Australian citizen by grant. The Tribunal accepts that neither party has ever been previously married and they do not have any children, although it notes that [Ms B] is currently pregnant with [Mr A’s] child. The Tribunal accepts that the couple met in 2013, committed to an exclusive relationship in January 2014, married in June 2015 in [City 1] and began residing together shortly afterwards.

   Whether the parties are in a spouse or de facto relationship

9. 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 [Mr A] claims to be the spouse of [Ms B] who, according to Departmental records, became an Australian citizen by grant [in] February 2017.

10. ‘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?

11. If the parties are validly married, they may meet the requirements of a spousal relationship, but not a de facto relationship. [Mr A] presented with his application a copy of the marriage certificate showing the marriage was registered in [City 1] [in] June 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?

12. The Tribunal has carefully considered the documentary evidence on the Department’s file and the substantial amount of additional evidence that has been submitted to the Tribunal (including a copy of the Department’s decision record provided by [Mr A]). The Tribunal also had the benefit of hearing the oral evidence of [Mr A], [Ms B] and witnesses.

13. The Tribunal notes from the outset that there was some confusion and inconsistency surrounding when the parties first met and if the parties are related by blood. Despite [Mr A] stating on the original application that he is not related to [Ms B] ‘by blood, marriage or adoption’, the parties are in fact related by blood. By the parties’ own admission at the hearing, [Mr A] is the first cousin of [Ms B’s] (now deceased) father. Despite stating they had first met at a Christmas party [in] December 2013, both parties admitted that they had in fact met as children in [Country 1].

14. The Tribunal questioned the parties at length about why the original application form did not reflect these facts. Both parties claimed that the question relating to blood relationships on the original application form (question 22 on the 40SP form on the Department’s file) was answered in error, and was not an intentional attempt to mislead the Department. Regarding when the couple had first met, because it had been so long since they had seen each other as children, the couple regarded their meeting [in] December 2013 as an accurate answer to the question of when they first met as adults, in the context of their partner relationship. The Tribunal notes that both [Mr A] and [Ms B] made no attempt to conceal these details when questioned at the hearing. Both answered direct questions relating to these issues freely and honestly. With some hesitation, the Tribunal is prepared to give the parties the benefit of the doubt regarding these explanations as to why false and/or misleading information was provided on the original application form. The Tribunal accepts that these were errors rather than deliberate attempts to mislead the Department.

    Financial aspects of the relationship

15. The Tribunal has considered the financial aspects of the relationship, including any joint ownership of real estate or major assets, any joint liabilities, the extent of any pooling or sharing of financial resources, whether any person in the relationship owes any legal obligation in respect of the other, and the basis of any sharing of daily household expenses and any combined future financial commitments or plans.

16. The Tribunal questioned the couple about their financial arrangements. Both [Mr A] and [Ms B] gave consistent evidence about each other’s employment and financial affairs. The Tribunal accepts that [Mr A] works as a permanent full-time [worker] at a [company], earning between $[amount] and $[amount] per month, depending on the amount of overtime he works. The Tribunal accepts that [Ms B] is not currently employed and is financially dependent on [Mr A].

17. There is evidence that [Mr A] and [Ms B] operate a joint bank account with the ANZ Bank that was first opened one year ago. [Mr A] gave evidence that the couple was ‘not aware of the importance of these things’ in relation to providing proof of the couple’s financial affairs in the context of his visa application. Prior to this the couple had dealt largely in cash. The Tribunal notes that the parties have submitted some financial statements for the joint account covering a period from April 2017 to July 2018. Although the statements do not form a complete financial history over this period, the documents do list some transactions that are consistent with the purchase of household related items such as groceries and medical bills. With respect to any sharing of day-to-day household expenses, the Tribunal accepts that the joint account is accessed by both [Mr A] and [Ms B] to cover general household and living expenses. The Tribunal accepts that [Mr A] is the sole income earner and both he and [Ms B] take responsibility for financial transactions such as paying bills. The Tribunal accepts that [Mr A] maintains a personal bank account where his wages are deposited and that he transfers funds into the joint account when required. The Tribunal accepts that the couple share their household expenses in a way that best suits their needs. The Tribunal accepts the couple’s oral evidence in relation to the financial aspects of their relationship and notes that it is corroborated by some documentary evidence.

18. The Tribunal has had regard to multiple utility, insurance and medical bills in joint or individual names; documentation attesting to [Mr A’s] superannuation account with AustralianSuper and the nomination of [Ms B] as sole beneficiary (100%) of this account in the event of his death; wills for both [Mr A] and [Ms B] nominating each other as the executor, trustee and beneficiary of each other’s estate. The Tribunal accepts that [Mr A] owns the home in which the couple currently reside. The Tribunal has had regard to various documents, including a statement from an ANZ home loan account in [Mr A’s] name and a land title statement listing [Mr A] as the owner of the [Suburb 1] property.  The couple gave evidence that [Ms B] originally purchased the property but was unable to obtain finance as she is unemployed. The Tribunal notes there is some documentary evidence that appears to confirm that the land title for the property was transferred from [Ms B] to [Mr A] in October 2016.   

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

    Nature of the household

20. The Tribunal has considered the nature of the household, including any joint responsibility for the care and support of children, living arrangements of the parties and the sharing of the responsibility for housework.

21. The couple spoke about their living arrangements. The Tribunal is satisfied that the couple live together at a property in [Suburb 1] that was purchased by [Mr A] in 2016.

22. The Tribunal accepts that for cultural reasons the couple did not think it was appropriate to cohabitate prior to their wedding [in] June 2015. The Tribunal notes there was some inconsistency about when the couple first resided together following their wedding. [Mr A] told the Tribunal that [Ms B] had moved from her family’s home in [Suburb 2] into [Mr A’s] brother’s house in [Suburb 3] (where he was living) immediately after the wedding. [Mr A] stated that the couple had subsequently moved into [Ms B’s] parents’ house for a period prior to the purchase of the home in [Suburb 1]. [Ms B] told the Tribunal that the couple had first cohabited following the wedding at her parents’ house in [Suburb 2].

23. When asked to comment on this inconsistency, [Mr A] stated that the couple had stayed at both properties during this period. He explained this was a particularly difficult time for both parties as he was newly arrived in the country, was not properly settled and both he and his new wife had language difficulties. [Mr A’s] representative also suggested that due to [Ms B’s] heavily pregnant state at the hearing, she may have some memory issues and may not have recalled the exact sequence of these events in correct order. With some hesitation, the Tribunal is prepared to give the parties the benefit of the doubt regarding these inconsistencies in the parties’ individual recollections of their initial cohabitation history.

24. The Tribunal notes that [Ms B] is approximately six months pregnant. Both parties claim that [Mr A] is the father of the child. The Tribunal has had regard to various medical documents relating to the pregnancy, submitted by the parties. The Tribunal questioned the parties at length about various aspects of the pregnancy. The Tribunal notes that the couple provided detailed and consistent independent responses, including about when they individually found out [Ms B] was pregnant, [Ms B’s] medical appointments relating to the pregnancy, the name of her obstetrician, when and where the couple found out the sex of the baby, and various preparations they had made for the arrival of the baby, including very specific details about recent work undertaken at their home to prepare the nursery.

25. The Tribunal asked the couple if they would have any objections to a DNA test to confirm the paternity of the child. Both parties said they would freely consent to such a test if the Tribunal was to request one. Given some of the inconsistencies in the relationship history noted above, the Tribunal would have been highly likely to request a DNA paternity test if the baby had been born at the time of the hearing. As this is not an option available to the Tribunal at time of the time of this decision, the Tribunal is prepared to accept the couple’s claims about the paternity of the unborn child on the basis of their oral evidence, including the detailed and consistent oral evidence regarding various aspects of the pregnancy. The Tribunal accepts that [Mr A] is the biological father of the child.

26. 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, cleaning and general household chores, and that [Ms B] does most of the cooking.

    Social aspects of the relationship

27. Whether the persons represent themselves to other people as being in a de facto relationship with 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.

28. The Tribunal is satisfied that the parties have represented themselves socially as a couple to their family and friends and continue to do so at the time of this decision. In addition to the consistent oral evidence of the couple at the hearing, the Tribunal has considered evidence relating to the social aspects of the relationship, including numerous digital photos and videos provided to the Tribunal of the couple’s cultural/religious wedding in February 2017 and of the couple together at various celebrations, including weddings and christenings of friends and family members. The Tribunal notes that these functions were very large social/cultural events attended by dozens of the couple’s family members and friends.

29. The Tribunal asked the couple about their joint social activities. The couple gave somewhat vague but generally consistent oral evidence of the things that they enjoyed doing together as a couple and aspects of their home life, including specific things that [Ms B] cooks for [Mr A]. Both independently mentioned a trip [overseas] the couple wish to undertake after the birth of their child.  

30. On the basis of the evidence, the Tribunal finds that the persons represent themselves to others as being married to each other, and that the couple plan and undertake joint social activities. The Tribunal finds that the relationship is viewed as genuine and continuing in the opinion of the couple's family members, friends and acquaintances.

31. The Tribunal is therefore satisfied that the social aspects of the relationship attest to the genuine and continuing spousal relationship between the parties.

    Nature of the persons’ commitment to each other

32. The Tribunal has considered the nature of the parties’ commitment to each other, including the duration of the relationship, the length of time the parties have lived together, the degree of companionship and emotional support they provide each other, and whether the parties view the relationship as a long-term one.

33. The couple met in 2013, committed to an exclusive relationship in January 2014, married in June 2015 in [City 1] and began residing together shortly afterwards. The Tribunal accepts that for cultural reasons the couple did not think it appropriate to reside together until they were married. 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.

34. As discussed above, the Tribunal accepts that [Ms B] is pregnant with [Mr A’s] child that is due to be born in coming months. 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 Tribunal accepts that the couple rely on each other for emotional support.

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

36. Accordingly, the Tribunal is satisfied, considering all of the evidence cumulatively, that [Mr A] and [Ms B] have demonstrated, and continue to demonstrate, a level of commitment to one another and to their relationship as contemplated in the Regulations.

37. The Tribunal places significant positive weight on the nature of each person’s commitment to the other.

    Conclusion on s.5F(2) requirements 

38. 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).

39. The Tribunal is satisfied that at the time of application and the time of decision [Mr A] and [Ms B] have a mutual commitment to a shared life as 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.

40. Additionally, the Tribunal is satisfied that at the time of application and time of decision [Mr A] and [Ms B] live together. Accordingly, the couple meets the requirements of s.5F(2)(d) for a married relationship.

41. For these reasons the Tribunal finds that at the time of application and time of decision [Mr A] and [Ms B] 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.

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

43. Accordingly [Mr A] meets the requirements of cl.820.211(2)(a) and (c).

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

1. 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 [Mr A] meets cl.820.211 and cl.820.221(1).

2. 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

3. The Tribunal remits the application for a Partner (Temporary) (Class UK) visa, with the direction that [Mr A] meets the following criteria for a Subclass 820 (Partner (Temporary)) visa:

   ·cl.820.211 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).