1721186 (Migration)

[2019] AATA 5432

1721186 (Migration) [2019] AATA 5432 (5 September 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1721186

MEMBER:Helena Claringbold

DATE:5 September 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Partner (Residence) (Class BS) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 801 (Partner) visa:

·cl.801.221(2)(c) of Schedule 2 to the Regulations.

STATEMENT MADE ON 05 SEPTEMBER 2019 AT 2:00PM

CATCHWORDS
MIGRATION – Partner (Residence) (Class BS) visa – Subclass 801 (Spouse) – genuine and continuing spousal relationship – joint bank accounts – shared household expenses  companionship and emotional support – parties represent themselves as married to each other –  parties plan and undertake joint social activities together – companionship and support – mutual commitment to shared life as husband and wife to exclusion of all others –miscarriage – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5F, 359AA, 376
Migration Regulations 1994 (Cth), r 1.15A(3), Schedule 2, cl 801.221

CASES
He v MIBP [2017] FCAFC 206

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. On 6 March 2014, Mr [A], also known as [Alias 1], (the applicant) applied for a Partner (Residence) (Class BS) visa. The application was based on his spousal relationship with Ms [B], the sponsor. 

2. On 8 September 2017, a delegate of the Minister for Immigration and Border Protection refused to grant the visa. The delegate was not satisfied that the visa applicant and the sponsor are genuine and continuing spousal partners. Therefore, the visa applicant did not meet cl.801.221 of Schedule 2 to the Migration Regulations 1994 (the Regulations) made under the Migration Act 1958 (the Act). On 10 September 2017, the applicant provided the Tribunal with a copy of the delegate’s decision record. This is a review of the delegate’s decision.

3. On 13 August 2019, the applicant appeared before the Tribunal to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor and two witnesses. 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 his registered migration agent.

4. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The Tribunal has taken into consideration, individually and as a whole, all the evidence in the Department of Immigration and Border Protection’s (the Department’s) case file and the Tribunal’s case file and the evidence at the Tribunal hearing.

   ISSUE

6. The issue in this matter is whether the applicant is the spouse of the sponsor as defined in s.5F of the Act.

   BACKGROUND ON THE EVIDENCE

7. In [year], the applicant was born in Ho Chi Minh, Vietnam. His parents and one sibling live in Vietnam. On 12 February 2015, he was granted a Subclass 820 partner visa based on his spousal relationship with the sponsor. The applicant has declared no previous marriages or de facto relationships.

8. In [year], the sponsor was born in Hai Phong, Vietnam. Her father is deceased. Her mother and one sibling live in Australia. The sponsor first entered Australia [in] March 2010. The sponsor has declared no previous marriages or de facto relationships.

9. [In] September 2012, the parties met at a live show held at [a location] in [State 1]. Thereafter, the parties began to see each other regularly and they developed a relationship.  [In] December 2013, the parties became engaged and [in] January 2014, the parties married in [Suburb 1], [State 1].  

   Are the parties validly married?

10. At the time the visa application was made, the applicant provided evidence of her marriage to the sponsor. 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 parties are in a spouse or de facto relationship?

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

12. ‘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).

13. In forming an opinion about these matters, regard must be had to all of the circumstances of the relationship. This includes evidence of the financial and social aspects and the nature of the visa applicant’s and sponsor’s household and their commitment to each other as set out in r.1.15A(3) of the Regulations, 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.

14. Regarding the financial aspect of the parties’ relationship, there is no evidence that the parties have any joint ownership of real estate or other major assets, or any joint liabilities or any pooling of financial resources especially in relation to major financial matters, or other than their joint bank accounts, have any legal obligation in respect of each other. The parties have joint [Bank Account 1] and joint [Bank Account 2] accounts and [cards] for the accounts. The applicant also has a business account.  He transfers money from the business bank account to [Bank Account 1]. The sponsor’s salary is deposited into [Bank Account 2]. In addition the sponsor has a personal bank account. Various documents have been provided including copies of bank statements, tax return forms and utility accounts. In a post hearing submission the applicant provided further bank statements evidencing transactions between the applicant’s business bank account and [Bank Account 1] and [Bank Account 2]. The parties’ expenses are minimal, however the Tribunal accepts that the parties share day-to-day household expenses.

15. Regarding the parties household, the parties’ evidence is that they do not have any responsibility for the care and support of children. The parties have lived at two addresses, a [Suburb 1], [State 1] address (the [Suburb 1] address) and an [Suburb 2], [State 1] address (the [Suburb 2] address).  Bank statements are addressed to the parties at both of these addresses. Ms [C] told the Tribunal that the parties lived at her place for a number of years and she thinks of the applicant as her little brother.  Ms [D] stated that the parties are currently living at her property. The parties told the Tribunal that they share housework with the sponsor doing most of the cooking. The Tribunal accepts that the parties share living arrangements and the responsibility of housework.

16. Regarding the social aspects of the parties’ relationship, the applicant told the Tribunal that the parties’ social life is limited because they work most of the time. He said that when they have time they like to shop together and go to the beach.  They both enjoy watching different programmes on You Tube and the applicant raises birds. The parties told the Tribunal that they went to Vietnam and more recently went to the Gold Coast. [Ms D] told the Tribunal that the parties have been married for five years and love and care for each other. [Ms C] told the Tribunal that she is a living witness to the parties’ relationship as she has seen the parties’ relationship develop since the time they lived with her. In 2016 in a statutory declaration the sponsor’s parents stated that they are happy with the parties’ marriage. In 2019 in third party statements the sponsor’s mother stated the following: that she has known the applicant since the day the parties married and she attended their wedding. The sponsor’s step father provided the same information as the sponsor’s mother and added that he can see the relationship is genuine and continuing because the parties go to his place for dinner.  Photographic evidence depicts the parties together and with others at different locations. The Tribunal accepts that the parties represent themselves to other people as being married to each other and that other people believe their relationship to be genuine and that the parties plan and undertake joint social activities together. The Tribunal accepts that the parties represent themselves to other people as being married to each other and are seen by others as a married couple. The Tribunal accepts that the parties plan and undertake joint activities together.

17. Regarding the parties commitment to each other, the parties met in September 2012 and married in January 2014. They have lived together since their marriage. The parties told the Tribunal that they have been through a difficult time. They explained that the sponsor experienced [a number of] miscarriages: one in November 2018 and [specified] in 2019. They became overwhelmed with emotion when talking about these experiences and about the feeling of loss and sadness that they continue to manage. The parties told the Tribunal that the sponsor is having further medical tests.  The sponsor said that in addition the applicant’s father died in May 2019 but she didn’t travel because she was pregnant and later miscarried. The sponsor’s mother in a written statement wrote the following: that it is unfortunate that the sponsor had [numerous] miscarriages, however the applicant supported her. The applicant’s father died a few weeks ago.  However the sponsor could not attend the funeral in Vietnam because she was pregnant and then had a miscarriage for the [specified] time. In a post hearing submission the applicant provided independent medical evidence to support the claims of the sponsor’s miscarriages. The information in these documents is consistent with the evidence provided at the Tribunal hearing. It is notes that the applicant is recorded as the sponsor’s husband in the medical documents. The parties told the Tribunal that their plan is to have a child and a stable family life. The Tribunal accepts that the parties provide each other with companionship and support and see their relationship as long term.

    Other considerations

18. The Tribunal told the applicant the following: a non-disclosure certificate has been issued pursuant to s.376 of the Migration Act 1958 (the Act) in relation to certain material which is on the Department of Immigration and Border Protection’s (the Department’s) file. The Department sought to restrict the disclosure of TRIM reference number [specified] because it was given to an officer of the Department of Immigration and Border Protection. The Tribunal considers that the s.376 certificate is not valid. The applicant was invited to comment on the validity of the certificate and invited to make submissions regarding the exercise of the discretion to disclose the information. The applicant was told that the Tribunal would put the core of the information to the applicant.

19. The Tribunal put the core of the information the subject of the s.376 certificate and other information to the applicant under s.359AA of the Act as follows:

    ·The core of the information the subject of the s.376 certificate is that [in] September 2017, the Department of Immigration and Border Protection’s Border Watch Allegations received an allegation that the visa applicant has a criminal record and that his marriage to the sponsor is contrived.

    ·Other information is that [in] November 2016, the Department of Immigration and Border Protection’s Border Watch Allegations received further allegations that the applicant’s marriage to the sponsor is contrived.

    ·Also on the Department’s file is information relating to the applicant’s [social media] profile [in] September 2017. The [social media] profile did not have any information that the applicant and the sponsor were married or that they socialise with each other. 

20. The applicant responded at the Tribunal hearing and stated that an incident occurred in the ‘old house’ with conflict between two sides of friends.  This resulted in him appearing before the court and receiving a [suspended] sentence and good behaviour bond. The allegations about his relationship with the sponsor are untrue, their relationship is genuine. He stated that neither he nor the sponsor post information on [social media].

21. The Tribunal considered that the applicant’s suspended sentence is not relevant as to whether the parties are in a genuine spousal relationship.  The findings on the parties’ relationship are recorded throughout this decision record. The Tribunal places no weight on the information related to the parties’ [social media] accounts.

22. Overall, the Tribunal is satisfied that the applicant and the sponsor have a mutual commitment to a shared life as husband and wife to the exclusion of all others; that their relationship is genuine and continuing and that they do not live separately and apart on a permanent basis.  The applicant therefore meets the requirements of s.5F of the Act.  Given these findings, the Tribunal is satisfied that the parties are in a spousal relationship.

23. 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.801.221(2)(c) of Schedule 2 to the Regulations.

24. 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 801 visa.

    DECISION

25. The Tribunal remits the application for a Partner (Residence) (Class BS) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 801 (Partner) visa:

    ·cl.801.221(2)(c) of Schedule 2 to the Regulations.

    Helena Claringbold
    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).