1718036 (Migration)
[2019] AATA 4958
•17 September 2019
1718036 (Migration) [2019] AATA 4958 (17 September 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1718036
MEMBER:Meena Sripathy
DATE:17 September 2019
PLACE OF DECISION: Sydney
DECISION:The Tribunal remits the application for a Partner (Migrant) (Class BC) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 100 (Partner) visa:
·cl.100.221 of Schedule 2 to the Regulations
Statement made on 17 September 2019 at 1:02pm
CATCHWORDS
MIGRATION – Partner (Migrant) (Class BC) – Subclass 100 (Spouse) – genuine spousal relationship – relations with ex – property co-owned with ex – paternity of ex’s child – oral evidence provided – bank statements provided – joint mortgage – existence of genuine relationship – ongoing commitment – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2 cl 100.221CASES
Cao v MIAC [2007] FMCA 225
Sevim v MIMA (2001) 114 FCR 126
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
This is an application for review of a decision made by a delegate of the Minister for Immigration on 4 August 2017 to refuse to grant the visa applicant a Partner (Migrant) (Class BC) visa under s.65 of the Migration Act 1958 (the Act).
The applicant applied for the visa on 30 September 2013 on the basis of her relationship with her sponsor. At that time, Class BC contained one subclass: Subclass 100 (Partner).
The criteria for the grant of a Subclass 100 visa are set out in Part 100 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.
The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy cl.100.221 because the delegate was not satisfied that the applicant and sponsor has maintained a mutual commitment to a shared life to the exclusion of all others and were in a spouse relationship at time of decision.
The applicant appeared before the Tribunal on 26 July 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages. The applicant was represented in relation to the review by her registered migration agent.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant is a 41 year old female of Vietnamese nationality. She lodged a Partner (Provisional) (Class UF)(Subclass 309) and Partner (Migrant) (Class BC) (Subclass 100) visa on 30 September 2013 on the basis of being in a spousal relationship with [a person], a 44 year old, Vietnamese born, Australian citizen, who lodged a sponsorship in support of the application.
Information contained in the Department file indicates the parties met in 2009 while the applicant was visiting Australia, and again in 2012 during a further visit, when they expressed feelings for each other. The sponsor travelled to Vietnam in 2013 and following this visit proposed marriage over the phone. He travelled again to Vietnam in August 2013 and they married on 3 September 2013. The sponsor was previously married to [Ms A] from 2002 to 2011 and has two children of that relationship, born in 2007 and 2009.
An officer of the Department interviewed the applicant on 5 March 2014 and following this she was granted a Subclass 309 visa on 5 March 2014, and entered Australia on that visa on 15 April 2014.
On 19 August 2015 the applicant was requested by the Department to submit documents for consideration of the Subclass 100 Partner (Migrant) visa. In response, on 13 March 2017, she provided documents and evidence in support of the ongoing relationship, including:
·A new completed Form 40SP (Sponsorship) and Form 47SP (Application for migration) signed 4 May 2016.
·Copies of various identity documents for applicant and sponsor including applicant and sponsor’s birth certificates; sponsor’s NSW Change of Name Certificate; applicant’s biodata page of passport and applicant and sponsor’s NSW police clearance certificates.
·Copy of the marriage certificate previously provided.
·Applicant’s PAYG payment summary for 2015 showing [Address 1].
·QBE travel insurance policy in applicant and sponsor’s names dated 29 June 2015 showing [Address 1].
·Receipt for furniture purchased in both names, dated 23 October 2014, showing [Address 1].
·Sydney Water bill for October-December 2016 addressed to applicant and sponsor at an address in , [Address 2].
·Two Form 888 Statutory Declaration forms in support of the application by [a person] (neighbour and long term friend of sponsor) and [another person] (friend of sponsor).
·St George bank statement in joint names for period November 2014 to May 2015 showing [Address 1].
·St George Bank Loan statement in sponsor’s name for period March –August 2016 showing [Address 1].
·St George bank statement in joint names (different account number) for period and May – November 2016 showing [Address 1].
·AAMI Insurance in joint names showing [Address 1] dated August 2016.
·Documents relating to registration of a business name to the applicant and sponsor, indicating their [Address 1].
On 7 April 2017 the sponsor was interviewed by an officer of the Department by phone. Notes of the interview held on Department file indicate the sponsor was asked about “ [Child 1]” his third child. The notes indicate “Sp was taken aback and first advised that he did not know [Child 1]. I advised him to tell the truth. Sp then advised that the child might not be his as ex might have had a boyfriend at the same time he was seen her romantically. Sp was not able to confirm he was born in December. He agreed that if I asked the community they would advise the child is his. Sp asked not to tell this information or our discussion to PA. I explained that she may found out at some stage, eg. if DNA is being asked.”
Documents on the Department file indicate investigations made, including requests for information from Centrelink relating to the sponsor’s ex-partner and records of her children, including child [Child 1] born [date]; and photos and message’s from sponsor and his ex-partner’s [social media] pages.
The officer contacted [a person] who appears as [social media] friend on [social media] pages, and commented on [Child 1]. She indicated that she used to work with the sponsor’s ex-partner, heard about the birth of child and sent a [social media] post. Said she made up the name [Child 1] as she did not know the family name of the child.
Response from Centrelink provided to Department confirmed that [Child 1], DOB [date] is third child of sponsor’s ex-partner. Centrelink advised that no father is listed on his birth certificate. Department file notes records that conception of this child would have been around [date].
On 5 May 2017 the applicant was sent a letter inviting comment on adverse information being the sponsor’s alleged admission to an officer at interview that he had been maintaining a relationship with another person and a child may have been born of that relationship and information before the Department is that a child was born in [year] and therefore it appears the applicant and sponsor were not in a mutual commitment to a shared life to the exclusion of all others as required.
On 9 May 2017 the applicant’s representative advised the sponsor denies making the alleged admission, and requested a copy of the transcript of the telephone interview conducted with the sponsor on 7 April 2017. The representative was advised on 10 May 2017 that there is only a note of the interview and she would need to request it under FOI as it has third party information.
On 22 May 2017 the applicant submitted a Statutory Declaration in response to the invitation to comment letter. She stated that she has spoken with her husband, the sponsor, regarding the allegation made and he denies stating that he was in a relationship with any other person or that he had a child of that relationship. She states that she and the sponsor are in a genuine relationship since 2013, have stable jobs, a joint mortgage and an exclusive husband and wife relationship. The applicant’s representative sought access to documents held on the Department’s file under FOI.
On 4 August 2017 the application was refused by a delegate of the Department after considering all of the information before it.
Proceedings before the Tribunal
On 11 December 2018 and 3 July 2019 the Tribunal provided the applicant copies of relevant documents held on Departmental files [source deleted] and [source deleted], including folios certified under s376, with the exception of documents containing personal details of third parties. Specifically the Tribunal provided the applicant Departmental file notes of interviews in March 2014 and the phone interview with the sponsor in April 2017, and extracts allegedly from [Ms A] and sponsor’s [social media] account obtained by the Department.
On 23 July 2019 the Tribunal received a submission from the applicant’s representative and the following documents in support of the application:
·Statutory Declarations from the applicant and sponsor dated 22 July 2019. In these declarations the sponsor denies the statements attributed to him by the delegate in the decision record, however acknowledges that he maintains a civil relationship with his ex defacto partner and sees his children on a fortnightly basis. He acknowledges he had a one night stand with her in [date] which he states was a ‘mistake’ but denies knowledge that the child [Child 1] is his. He states that his ex-partner told him that he is not. He states he disclosed his ‘mistake’ to the applicant following the refusal decision and she has forgiven him. They continue to be in a genuine and ongoing relationship. The applicant was pregnant but had a miscarriage in 2018 and they are trying for a baby. They have purchased an investment property together. The applicant’s declaration reiterates this information.
·Statutory declarations in support of the relationship from [a person] and [another person] who live in a granny flat at the same property as the applicant and sponsor; [a person], brother in law of applicant who introduced them and lives with them; [another person], brother of sponsor; [a person], father of sponsor.
·Letter from [a medical professional], dated 11 July 2019, stating that the applicant was seen by him on 11 April 2018 and was pregnant.
·Statements of two joint St George Bank accounts for periods between 2017-2019
·Statements of a St George Bank account in the name of [Company 1], registered business of applicant and sponsor, from 1 July 2018 to 30 June 2019
·Tax and other documents relating to [Company 1], addressed to applicant and sponsor’s address
·Various letters addressed to applicant and sponsor at same address, relating to car insurance and superannuation policies.
·Documents addressed to applicant and sponsor relating to property at [Address 2], including water and council rates and rental receipts
·ANZ bank correspondence relating to a residential investment loan account.
·Bundle of photos of applicant and sponsor, including wedding and family pictures.
The applicant appeared at a hearing before the Tribunal on 26 July 2019 to give evidence and the Tribunal also received oral evidence from the sponsor. A summary of relevant evidence obtained follows.
As a preliminary matter the Tribunal discussed with the applicant that the Department issued a certificate under s376 stating that disclosure of certain documents on the Department file would be contrary to the public interest for reasons specified in the certificate. The Tribunal has a discretion to disclose the document or information despite the existence of a valid certificate under this provision, and it exercised that discretion in respect of some of the documents, as referred to above. In respect of the remaining documents, the Tribunal considers the reasons provided in the certificate are valid and has decided not to disclose the documents on the basis that they were given by another agency and include information about third parties. To the extent that there is information in the documents relevant and significant to the issues under consideration, the Tribunal will provide the substance of that information to the applicant for comment or response in the course of the review. The Tribunal invited the applicant, or her representative, to make any further submissions on the issue of the certificate or discretion to disclose. They made no comments.
A summary of the evidence obtained at the hearing follows.
The applicant lives with her husband, the sponsor, her sister and brother in law and their two children in a house owned by her sister and brother in law. She and the sponsor pay rent of $300 per week. Prior to this address, they lived together at [Address 3] for a brief period of several months. When asked why they moved from this address she said it belonged to the sponsor and his ex-partner and she did not feel comfortable there. Her sister then offered for them to live at their house and they decided to move. After they left, the sponsor’s ex-partner moved back into the house with the two children. The sponsor continues to own this property in joint names with his ex-partner. They have an agreement between them that the house is for their children and he does not want to sell it or transfer the title into one name because he wants them both to decide on the sale. The sponsor’s explanation of this was consistent.
The applicant works at a nail and beauty business owned by her sister in [a suburb]. She has been here for the past one year. Before that she worked at another nail and beauty business in [another suburb]. Her current work hours are 2-6pm Wednesdays to Sundays. The sponsor works as a self employed truck driver. He works from 3am to 3 or 4 pm Monday to Friday. He leaves for work around 2.30 in the morning, returns home in the afternoon and has an early dinner and goes to sleep by 7pm. The Tribunal observed that with these working hours and days they do not appear to spend much time together. She agreed with this. She said they sometimes talk a bit when she comes home and before he goes to bed. They have some time together on the mornings of the weekends and on Mondays of long weekends.
The Tribunal discussed with the applicant their past relationships. She confirmed she did not have any previous relationships. She is aware the sponsor was in a defacto relationship with a woman named [variation of Ms A] since around 2002 and had two children together, [Child 2] and [Child 3]. They separated because they became incompatible. They argued all the time, mostly about the children and how to raise them. The end of the relationship was mutual and they parted in peace. She went with the children to stay with her mother. The sponsor sees the children every fortnight on Saturdays. He picks them up and takes them to his father’s place. She accompanies him to collect the children and then he takes her to work. She does not spend much time with the children.
The Tribunal asked the applicant if she is aware of any other siblings the children have. She said there is another child called [Child 1]. The Department were suspicious that [Child 1] was the sponsor’s son and wrote to her to inform her of this. This was the first time she heard this.
The applicant first met the sponsor’s ex-partner in 2009 when she first met the sponsor. The context was a dinner arranged by her brother in law who was friends with the sponsor. She next met the sponsor in 2012 when she came back for another visit, but he had separated from his partner then. She and the sponsor had no contact between 2009 and 2012. They started their relationship from 2012. He came to Vietnam in 2013 and they married there. She came to Australia in 2014 on a Partner visa. The only times she has seen his ex-partner since she came in 2014 is on occasions when picking up the children. She does not know for sure about other relationships the ex-partner has had but believes she has had boyfriends. She does not know any by name.
The Tribunal asked the applicant if [Child 1] ever comes on the access visits the sponsor has with his other two children. She said he does not, he stays with his mother. It asked when she first heard about [Child 1]. The sponsor told her in 2016 that his ex-partner had a baby boy. She did not know or ask about who the father was.
The Tribunal asked the applicant about the explanation given in her recent Statutory Declaration about this matter. She said in early August after the refusal decision the sponsor confessed to her for the first time that he had slept with his ex-partner on one occasion in [date]. He told her it was only that one occasion. She reiterated what she stated in the Statutory Declaration about why and how it happened. She confirmed that this was the first time he confessed about the one night stand. The Tribunal noted that she had previously provided a Statutory Declaration to the Department after its invitation to comment letter in May 2017 and denied that the sponsor had admitted as claimed regarding the child. She confirmed that at that time when she confronted the sponsor he denied it and did not tell her anything more.
The Tribunal asked the applicant about her reaction when the sponsor told her this in August 2017. She said she felt shattered by it. He apologised to her and was adamant it was only one occasion and that he would never do it again.
The Tribunal asked the applicant if she knew what family name was given to [Child 1]. She said she has heard it is [Child 1’s surname]. It put to her that the use of [Child 1’s surname] may indicate that the sponsor is the father or that he is presented to the world as child of the sponsor. She said that she understands that the mother decided to give him the same name as the other children to protect him so that he will not be different to his siblings and it will not be obvious they have different fathers because that is not a good thing in Vietnamese society.
The Tribunal asked if they have considered doing a paternity test to confirm whether he is the father. She said they had considered this and he discussed it with his ex-partner but she reassured him he was not the father and said he would be wasting his money. If the Tribunal wants a DNA test they can ask her again. The Tribunal indicated that it is a matter for them if they want to provide DNA evidence to support their claims. The issue before the Tribunal is whether the relationship between them is genuine and exclusive, and the fact that he has had relations with his ex-partner and a child may have been born of this, may indicate the sponsor and his former partner are in an ongoing relationship. However evidence that he is not the father may support that the ex-partner has had other partners and they were in fact separated.
The applicant maintained that [Child 1] does not attend the access visits the sponsor has with his children and he does not treat him as his own child at this time.
The applicant’s knowledge of the sponsor’s children [Child 2] and [Child 3] was minimal. She knew they attended [a school] and were in year [number] and [number] respectively. She was aware of their birth dates but said the sponsor and she do not attend the celebrations of their birthdays. The sponsor buys the children $50 iTunes vouchers for their iPads.
The Tribunal discussed with the applicant her living arrangements and asked why, after 5 years of marriage she and the sponsor are living with her sister and not in their own place. She said that they have bought a house together but are just not living in it now because they are waiting until they have a child together and then will move there. In the meantime it is convenient to stay where they are and help her sister out. She helps her sister by taking the children to school in the mornings and shopping and cleaning the house before work. Her sister comes home from work when she goes in, and picks the children up and cooks dinner.
The Tribunal asked about the purchase of the property at [Address 2]. It is a 3 bedroom house. They were watching the housing market and were afraid as prices increased that they would miss out if they did not buy then. The house cost $560,000. They paid $112,000 deposit, which was obtained by a loan from her brother in law and sister and the sponsor’s father. They initially took the loan out with St George Bank and later refinanced with ANZ and paid her sister off. The sponsor’s evidence about this was consistent. The house is in both names as is the loan. She does not know the nature of the legal title. The Tribunal asked the representative to confirm if it is joint tenants or tenants in common.
The Tribunal asked the applicant about their financial arrangements. She confirmed they had two St George bank accounts in joint names, a joint loan account and a business account. She said the business account has only one card and only the sponsor uses this. This is the account his money from employment goes into. She uses one of the St George accounts. When asked why the statement does not show many daily expense type transactions she said she mostly shops in [Suburb 1] and uses cash. The sponsor transfers money to the loan account to make up the mortgage payments after the rental income goes in. The Tribunal asked if the sponsor has any other accounts. She said he has two NAB accounts relating to the mortgage on [Address 3] property. These are in joint names with his former partner. She said he and his ex-partner had an agreement after they separated that he would continue to pay the mortgage on this property as his share of child support for the children so he makes all of these payments. The Tribunal asked if she can provide statements for these accounts to date.
The Tribunal put to the applicant that the sponsor’s maintenance of financial arrangements with his former partner may indicate their relationship is not completely finished. She said in response the only purpose of the bank accounts is to maintain the property in [Address 3] for the benefit of their children. The sponsor is the only person using these accounts, as he has agreed to take responsibility for the mortgage payments as his child support contribution.
The Tribunal asked the applicant if she has a bank card for the St George account in the name of [Company 1]. She said she does not. There is only one card and the sponsor is the only person making transactions on this account. Her pay goes into one of the other two bank accounts held in joint names. The Tribunal noted that the transactions on these accounts do not reflect joint, pooled daily expenses. She said that most of their everyday expenses are incurred in cash, such as shopping in [Suburb 1], and she withdraws cash and uses cash for these.
The Tribunal asked the applicant to describe her daily household routine. She said she looks after her niece and nephew in the mornings and prepares them for school. Then she cleans the house, does laundry and sometimes shops for food, before going to work. Her sister picks up the children and prepares the evening meal. The sponsor leaves for work at 2.30 am and, because of this early start he has eaten and is often asleep by the time she returns home from work. The Tribunal noted that this routine suggests they spend little time together on a daily basis. She said sometimes they will talk briefly after she gets home and before he goes to sleep.
The Tribunal asked what kinds of activities they do together in their free time. She said they have mornings together on weekends and mostly stay at home, unless he is seeing his children. If they go out they have dinner together. For example they had dinner [in a suburb] last Saturday.
The applicant gave evidence about holidays they have had together. They travelled to Vietnam twice. The last visit was for his brother’s wedding. The sponsor’s mother was present, but not his father. She lives in Vietnam and the applicant has met her previously. She attended their wedding also. The applicant and sponsor visited her family briefly during this last trip.
The Tribunal asked the applicant about her recent pregnancy. She said he was not with her when she visited the doctor and found out she was pregnant. She rang him straight away. She miscarried within a few weeks of this. At first she did not tell the sponsor, and tried to take Chinese herbs to try and keep the baby. She told him after this was not successful. She was very upset and he comforted her. They have discussed the future together and having children. She knows he does not have any issues in this department so she has asked her doctor about herself. He said the miscarriage was just unfortunate and they should keep trying. The sponsor did not go with her to the doctor for this discussion. They are actively trying for a baby.
When asked to elaborate on other ways they support each other or their knowledge of each other, the applicant said they have been together as husband and wife for 5 years now and comfort each other but not in any particular way. She knows he loves her and she loves him. They do not fight much because she knows his temperament well and when to keep quiet if he is upset. Therefore they rarely have any confrontations. She considers him a good and responsible person. This is why she has forgiven him for his mistake. Even if the child is his she is willing to forgive him because she understands how it happened.
The Tribunal took oral evidence from the sponsor. He said he and his former de facto partner were friends from high school and then had a relationship and two children together. The relationship broke down because they were arguing all the time, mostly about the children. When they broke up, she went to her mother’s place in [a suburb] and he stayed in the house they owned together with his brother. After the applicant came to Australia, they moved to her sister’s place because it did not feel right to live in his house. After he moved out his former partner moved back in with the children.
The sponsor said the applicant does not have a close relationship with his children because of the language barrier, as they do not speak Vietnamese and her English is limited.
He does not know if his former partner has had boyfriends but understands from his son, that she may have had one or two. He first knew about her pregnancy when she told him. He never questioned who the father was because he assumed it was her boyfriend at that time. When the Department asked him if [Child 1] was his child this was the first time he had considered this. He mentioned that he had a one night encounter with her to the officer and did not want her to tell the applicant because he wanted to keep his relationship with her. He reiterated that he never said he was in a relationship with his former partner. The sponsor said when the applicant confronted him about it after the Department sent her the letter, he denied it to the applicant. He only confessed to her for the first time after the refusal decision by the Department. When asked about the child having his surname, he said he asked his ex-partner about this and she assured him that he is not the father and it would be a waste of his time and money to do a DNA test to confirm this.
The Tribunal asked the sponsor why he hasn’t finalised a property settlement with his former partner if the relationship is over and has been since 2011. He said the only reason they still own the property together is so that neither of them can sell without the other’s permission. They agree the property is for their children. When asked about the NAB accounts, he said he has two separate loan accounts in joint names with his ex-partner, one is a newer loan for his truck and the other one is for the property. He borrowed $130,000 to buy a new truck in 2018 and she agreed to be on the loan document. The Tribunal noted that may appear to contradict his claim to be in a genuine and exclusive relationship with the applicant, and invited his comment. He denied that, saying it was only to get that loan. He was unable to borrow with the applicant because they already have a loan for the maximum amount. He confirmed that only he uses the [Company 1] account. They registered this business name in 2016. He stated that the applicant’s pay goes into their joint account and she pays the rent to her sister which is $380 per week.
The Tribunal asked the sponsor why they are still living with the applicant’s sister rather than in their own place. He said they have bought a property together and intend to move once they have a family of their own. For now the current arrangements are convenient for both of them. He confirmed the household arrangements in a substantially consistent manner to the applicant. He leaves for work at around 2.30am and returns around 4 pm, Monday to Friday and she commences work at 2pm until 6pm, Wednesday to Sunday and therefore they hardly see each other.
They purchased the property at [Address 2] for $560,000 in both their names. The money for the deposit was given to them by her sister ($60,000) and his father ($30,000) and a community fund, known as hoi ($30,000). Later they refinanced the loan with ANZ and repaid his sister in law.
When asked about future plans he said they are trying to pay off their loan, so that he can buy a better truck and she is learning English. The sponsor said he understands the applicant wants to have children and he wants to make her happy so he is willing to have a child. She was very upset about the miscarriage. He had mixed feelings when she told him she was pregnant. He said when she lost the baby she initially tried to hide it and take Chinese medicines but when that failed she told him.
The sponsor gave consistent evidence about the trip to Vietnam last year, confirming they visited her family briefly one afternoon. The trip was for a short period and mainly for the wedding of his brother.
The Tribunal asked the sponsor about the [social media] posts obtained by the Department. He said the person who commented in his ex-partner’s account about them making good looking children is a friend from high school whom he hasn’t see for 15 years. She may have assumed they are still together.
When asked about their commitment to each other, the sponsor said they have been through a lot together. She doesn’t talk much but she supports him a lot and never argues back when she is angry. He can apologise for his mistakes. He acknowledged that his infidelity impacted their relationship and he lost her trust but she has forgiven him and he is grateful for that and they will be together now no matter what.
The representative made brief oral submissions referring to their consistent and credible evidence, and the sponsor’s honesty to the case officer. Regardless of whether the child is the sponsor’s the applicant agrees to take responsibility if the child is his. They are willing to give each other another chance and this is indicative of their commitment to the relationship. They have financial commitments together and have been together now for a significant length of time.
On 9 August 2019 the Tribunal received the following further documents from the applicant:
·Title search of the property in [Address 2] showing the applicant and sponsor as joint tenants;
·NAB bank statements relating to the mortgage for the [Address 3] property;
·Statements relating to St George Bank and ANZ Bank relating to mortgage for [Address 2] property;
·Statements of applicant’s mother and sponsor’s mother confirming they stayed at the applicant and sponsor’s home during her stay in Australia
CONSIDERATION
Whether the parties are in a spouse or de facto relationship
Clause 100.221 requires that the applicant meet one of five alternative requirements. These include cl.100.221(2) and (2A) which require, among other things, that at the time of this decision, the applicant is the spouse or de facto partner of the ‘sponsoring partner’. Unless the applicant was granted a Subclass 309 visa by Ministerial intervention, the ‘sponsoring partner’ is the person who was specified as the applicant’s spouse or de facto partner or intended spouse or de facto partner in the related Subclass 309 application, being an Australian citizen, permanent resident or eligible New Zealand citizen. In the present case the applicant claims to be the spouse of the sponsor, a ‘sponsoring partner’ within the meaning of that term.
‘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. Each of the specific matters contained in r.1.15A(3) are effectively questions which must be answered: He v MIBP [2017] FCAFC 206.
Are the parties validly married?
If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. 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 spouse relationship met?
The applicant and sponsor first met in 2009, when the sponsor was still in a relationship with his previous partner. They met again in 2012 when she came back to Australia for another visit, and by this time the sponsor had separated from his partner. They started a relationship after this, and he visited her in Vietnam twice in 2013, marrying her on the second visit. The Tribunal notes the applicant was interviewed by an officer at the post in 2014 prior to the grant of the Subclass 309 visa. She was questioned about the relationship at some depth and was aware the sponsor had travelled overseas in 2012 with his ex-partner and children, and the reason why. Her Subclass 309 visa was granted on the basis of the delegate’s satisfaction that it was a genuine relationship at the time.
Since arriving in Australia in April 2014, the applicant and sponsor lived together initially at a property owned by the applicant and his former partner, and since then at her sister’s house in [Address 1]. They provided a range of documents to support their continuous cohabitation at this address to date, including bank correspondence, RMS penalty notices, ATO and ASIC correspondence, and letters regarding car insurance policies and claims. They gave consistent evidence about the inception and development of the relationship and their living arrangements, including the decision to move to and stay at her sister’s house. They also gave consistent evidence about each other’s employment and work hours and daily routines. The Tribunal observes that the applicant and sponsor’s work hours do not leave them with very much time together during the week, as the sponsor leaves for work at 2.30am and returns around 3-4pm, by which time she has left for her work, and he sleeps by 7pm given his early start. The applicant works weekends, and the sponsor spends time with his children every second Saturday. It also observes that the applicant spends a substantial amount of time and effort supporting her sister’s family and she also works for her sister’s business. Notwithstanding this, the evidence provided, including the correspondence addressed to each of them at the same address, their consistent evidence of each other’s daily routines, and the absence of any other evidence to indicate either of them living elsewhere, supports their claims to be living together throughout this period.
Regarding financial arrangements, the evidence before the Tribunal indicates the parties established two joint bank accounts with St George Bank, and also a joint loan account and an account in a business name established by them together. The sponsor also maintains two NAB accounts, relating to the loan on his property that he still owns with his former partner. They gave consistent evidence about the use of each of these accounts. They purchased a property in [Address 2] in 2016, which is presently rented out. They each gave consistent evidence about the purchase price, source of funds and loan arrangements for this property, as well as their plan to move there in future. Following the hearing, evidence that this property is held in the names of the applicant and sponsor as joint tenants was provided. The applicant’s pay goes into one of the St George joint accounts, and the sponsor is the sole user of the account under the business name. They mostly buy groceries, contribute to rent and bills, and pay other daily expenses via cash transactions. The Tribunal accepts that the evidence that they jointly purchased a property and their knowledge of each other’s financial affairs supports the existence of a genuine relationship.
However the Tribunal initially had some concerns about the fact that the sponsor continues to co-own a property with his former partner, in which she presently lives with his children, despite ending his relationship with her many years ago. It also emerged at the hearing that in 2018 he took out another loan against this property to purchase a new truck. The Tribunal put to the applicant and sponsor that these circumstances may cause it to have some concerns that the sponsor is continuing to maintain financial arrangements with his former partner which could suggest he is also maintaining a relationship with her. In response the applicant explained what the sponsor had told her about this, being that he and his former partner intend the property they bought together to be for the benefit of the two children they share, and have an agreement to maintain in joint names so that neither can sell without the other’s permission. It was explained the sponsor takes care of the outstanding loan as his child support contribution, and the ex-partner resides there with the children. The Tribunal also observes and takes into account the evidence before it relating to Centrelink records, confirming the declared single status of the sponsor’s ex-partner, which is consistent with their claims. Regarding the more recent loan, the sponsor explained that he did this because he had the equity in relation to that property and had already taken the maximum loan with the applicant. While of itself, this could be inconsistent with being in an exclusive relationship, taking account of the sponsor’s history with his ex-partner, their relatively amicable break up, and that they share two children and in respect of whom they have ongoing parental responsibilities, the Tribunal accepts the explanations given by the parties. The Tribunal also takes into consideration, apart from the above mentioned financial arrangements, there is no other evidence to support the existence of an ongoing relationship between the sponsor and his ex-partner (save for the issue of the incident of infidelity discussed further below). Specifically the Tribunal observes that movement records of the sponsor and his ex partner before the Tribunal indicates a regular pattern of travel together between 1999 and 2009, and apart from one last trip in 2012, the ex partner has not travelled overseas since, whereas the sponsor has travelled a number of times since then, to visit the applicant and more recently with the applicant. In these circumstances, the Tribunal does not find the fact that the sponsor has these limited ongoing financial ties and liabilities with his former partner, as inconsistent with him being in a genuine and mutually exclusive relationship with the applicant.
Regarding social aspects of the relationship, the parties have provided numerous supporting statements from close friends and family to support the existence of a genuine and ongoing relationship. They each expressed reasonable and adequate knowledge of each other’s family. The applicant knows the sponsor’s children, but does not have a close relationship with them, explained as due to the language barrier between them. The applicant and sponsor have travelled twice to Vietnam together in 2015 and 2018, the latter trip being to attend the sponsor’s brother’s wedding, also attended by the applicant’s mother. Statements from each of their mothers were provided to the Tribunal, indicating that they had both visited Australia and stayed with the applicant and sponsor at the applicant’s sister’s house. Statements of support of the relationship have also been provided from the sponsor’s father and brother, the applicant’s brother in law and neighbours of the applicant and sponsor. The Tribunal accepts that all of this evidence supports that they represent themselves to other people as being married to each other; their friends and relatives see them as a couple and they take joint family trips overseas consistent with a genuine and ongoing relationship.
The applicant and sponsor have now been married for over 6 years and living together in Australia for over 5 years. As referred to above, they have purchased a property together, registered a business name, and integrated with each other’s families. The applicant indicated she wants to have a child with the sponsor, and gave evidence that she was pregnant in 2018, but unfortunately miscarried. The sponsor’s evidence about the circumstances of the end of the pregnancy was consistent with the applicant’s. He understands the applicant wants to have children and wants to make her happy and so is willing to have a child with her. His response to her telling him she was pregnant was credible and authentic. While initially the Tribunal had some concerns about the applicant and sponsor still living with the applicant’s sister’s family so many years after they married and despite having purchased their own property, having heard and considered their explanation and taking into account that joint and extended family living is not necessarily unusual in their cultural context, the Tribunal does not consider the circumstances of them continuing to live with the applicant’s sister’s family detracts from the existence of a genuine relationship. The Tribunal accepts the evidence relating to the nature of the commitment supports the existence of a genuine relationship and that the parties have made plans for the future and see the relationship as long term.
Other circumstances – sponsor’s infidelity
The Tribunal has considered the information about the sponsor’s former partner’s third child, born in 2016 and the allegation or implication that the sponsor is the father and has maintained his relationship with his former partner. For the following reasons, the Tribunal accepts the explanations provided regarding this matter and it is not satisfied on the available evidence that the sponsor is or has maintained an ongoing de facto relationship with his former partner.
The Department alleged in its invitation to the applicant to comment, that the sponsor admitted he had maintained a relationship with his former partner. The sponsor denied having made any such admission. Having reviewed the notes on the Departmental file, and noting there is no audio recording of the relevant interview, the Tribunal accepts that there is no evidence to substantiate that the sponsor made any such admission as alleged in the Department’s letter. The Tribunal notes that in her initial response to the Department the applicant stated that she confronted the sponsor about this matter and he denied saying that he was in a relationship with her or that he had a child. Before the Tribunal, the applicant provided another statement and gave evidence at the hearing, that the sponsor subsequently disclosed to her that he slept with his ex-partner on one occasion but has no knowledge that the child is his, and he has been told adamantly by his ex-partner he is not the father. The Tribunal discussed this at some length with the applicant and sponsor at the hearing. It considers the responses and evidence they gave was authentic and credible. The Tribunal accepts the sponsor was in a relationship with his ex-partner for many years; they knew each other since school days; their break up and separation was relatively amicable, and he had occasion to see her on account of their shared children. In these circumstances, it accepts that his explanation that he slept with her once while upset with the applicant, is plausible and credible. Investigations conducted by the Department did not produce any conclusive evidence that he is the father of the child, [Child 1]. Relevantly, he is not named on the birth certificate and Centrelink records indicate the ex partner declares herself as single. The applicant and sponsor gave consistent evidence that [Child 1] does not attend access visits with the sponsor along with the other two children. While the former partner insists the sponsor is not the father, the sponsor and the applicant told the Tribunal that if he were to be the father, they would accept it. The applicant said she was shocked and upset when the sponsor disclosed his infidelity to her but she has since forgiven him and accepts what happened. If the child were to be his, she would encourage him to accept it.
In assessing the significance of this matter to its assessment of the relationship, the Tribunal has taken into consideration relevant judicial guidance. Case law, binding on the Tribunal, indicates that sexual infidelity by one of the parties to the relationship does not necessarily take the relationship outside the definition of spouse or de facto. It will be a matter of fact and degree in the circumstances of the case, to be considered, along with all the other circumstances of the relationship, in determining whether the parties have or had the requisite commitment to a shared life to the exclusion of all others at the relevant time.[1] The Tribunal is also mindful that the level of commitment to the relationship does not need to be of equal strength or quality between the parties, although a reciprocal commitment, at some level, is required. A genuine relationship does not require parity of commitment between the parties, but rather a commitment by each to the other, to the exclusion of all others. There may be relationships where the parties have different levels or degrees of commitment to each other, or where the commitment of the parties to each other is of a different quality. Such differences do not matter in the application of this requirement as long as each party has a commitment of the kind described in the test.[2]
[1] Cao v MIAC [2007] FMCA 225 (Riley FM, 21 March 2007) at [36] and [42].
[2] Sevim v MIMA (2001) 114 FCR 126 at [71]. See also You v MIAC [2007] FMCA 1064 (Riethmuller FM, 6 July 2007) in which Riethmuller FM stated at [35] that spouses demonstrate different levels of mutual commitment ‘ranging from barely sufficient to enable a marriage to subsist to levels of commitment akin to devotion’.
Having regard to these authorities and principles expounded therein, and the evidence before it including the acceptance by the applicant of the sponsor, after he disclosed that he had been unfaithful to her, the Tribunal finds that a single past incidence of infidelity by the sponsor is not, of itself, fatal to the existence of an ongoing relationship between the applicant and sponsor.
The Tribunal has carefully considered all of the evidence and the circumstances before it. It considers the fact that the sponsor initially denied that he had been unfaithful to the applicant and later confessed it, lends some authenticity and credibility to their account. Given the way the story has unfolded the Tribunal is inclined to accept that it is plausible that it was a single act of infidelity as claimed. In the absence of conclusive evidence he is not the father (such as DNA evidence) it also accepts, given the timing of the infidelity and birth of the child, that it is possible he is. However, as the applicant and sponsor have themselves acknowledged this possibility, [Child 1’s] birth does not of itself mean the relationship between the applicant and sponsor is not genuine, continuing and exclusive. The Tribunal would also need to be satisfied, on the basis of evidence, that the sponsor has been, and is, maintaining a genuine and ongoing de facto relationship with his ex partner. Apart from the financial aspects discussed above (being the maintenance of a joint property, and the new loan taken out against the mortgage on that property in 2018) there are no other circumstances pointing to an ongoing genuine relationship.
Having regard to all of the above holistically and cumulatively, and giving particular weight and significance to the duration of the relationship (over 6 years) and continuing ongoing and genuine commitment demonstrated by the applicant and sponsor to the relationship in their oral evidence before the Tribunal, it finds that, on balance, the weight of evidence supports a conclusion that they are in a genuine and continuing spouse relationship.
Having resolved the few doubts it had arising from some of the material, the Tribunal accepts that the applicant and sponsor have a mutual commitment to shared life to the exclusion of others; the relationship is genuine and continuing; and they live together.
Given these findings the Tribunal is satisfied that the requirements of s.5F(2) are met at the time of this decision.
Therefore the applicant meets cl.100.221(2)(b).
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 100 visa.
DECISION
The Tribunal remits the application for a Partner (Migrant) (Class BC) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 100 (Partner) visa:
·cl.100.221 of Schedule 2 to the Regulations
Meena Sripathy
MemberATTACHMENT - Extract from Migration Regulations 1994
1.15ASpouse
(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).
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