1718036 (Migration) - [2019] AATA 4958

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 100.221
CASES

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading 1718036 (Migration)

Details

AGLC: 1718036 (Migration) [2019] AATA 4958
Case: [2019] AATA 4958
Decision Date: 17 September 2019

CaseChat Overview and Summary

This matter concerned an application for a Partner (Migrant) (Class BC) (Subclass 100) visa by a Vietnamese national. The applicant sought to establish a genuine and continuing spousal relationship with her Australian citizen sponsor. The Tribunal was required to consider whether the parties met the criteria for a valid spousal relationship, particularly in light of concerns raised during the sponsor's interview regarding the paternity of his child from a previous relationship and the applicant's ongoing relationship with her ex-partner.

The central legal issue before the Tribunal was whether the applicant and sponsor were in a genuine and continuing married relationship, as defined by section 5F of the Migration Act 1958 (Cth) and Regulation 1.15A of the Migration Regulations 1994. This required an assessment of various aspects of their relationship, including financial and social elements, the nature of their household, and their commitment to each other, to determine if they met the criteria of a married relationship, which necessitates a mutual commitment to a shared life as a married couple to the exclusion of all others, and that the relationship is genuine and continuing.

The Tribunal reasoned that while the parties were validly married, further consideration was needed regarding the other requirements of a spousal relationship. The Tribunal noted that the applicant had provided substantial evidence of a shared life, including joint property ownership, joint bank accounts, and shared household expenses. However, the sponsor's interview responses regarding the paternity of his child from a previous relationship and his apparent lack of full disclosure on this matter, coupled with the applicant's previous co-ownership of property with an ex-partner, raised questions that required further examination to ensure the genuineness and exclusivity of the current spousal relationship.

Consequently, the Tribunal remitted the application for reconsideration by the Minister, directing that the applicant met the criteria under clause 100.221 of Schedule 2 to the Regulations. This indicated that while the validity of the marriage was established, the Tribunal found it necessary for the Minister to further assess the remaining criteria for the Subclass 100 visa, particularly concerning the ongoing commitment and exclusivity of the spousal relationship.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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.”

Decision

Reasons for decision

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 RegulationsMeena SripathyMemberATTACHMENT - Extract from Migration Regulations 19941.15ASpouse(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).

Ratio Decidendi

Legal Principle Established

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 AustraliaCONSIDERATION 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.