1723900 (Migration) - [2020] AATA 2665

1723900 (Migration) [2020] AATA 2665 (23 January 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1723900
MEMBER:Meena Sripathy
DATE:23 January 2020
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Partner (Migrant) (Class BC) visa.
Statement made on 23 January 2020 at 10:54am
CATCHWORDS
MIGRATION – Partner (Migrant) (Class BC) visa – Subclass 100 (Partner) – genuine spousal relationship – mutually exclusive relationship – validly married – sponsor’s relationship with house sharer before marriage to applicant and while applicant offshore – two children of undetermined paternity have sponsor’s surname – father figure to children – social media posts referring to ‘wife’ and ‘children’ – house sharer’s other relationships and marriage – financial, household and social aspects of relationship – nature of commitment – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5F, 65, 359A, 375A, 376
Migration Regulations 1994 (Cth), r 1.15A, Schedule 2, cl 100.221
CASES
Cao v MIAC [2007] FMCA 225
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

This is an application for review of a decision made by a delegate of the Minister for Immigration on 15 September 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 12 April 2012 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 the relationship between the applicant and sponsor was mutually exclusive to the exclusion of all others.
The applicant appeared before the Tribunal on 7 November 2019 to give evidence and present arguments. The applicant was represented in relation to the review by her registered migration agent.
The issue in the present case is whether the applicant is the spouse of the sponsoring partner at time of decision.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
Evidence before the Department
The applicant is a [age] year old Nigerian born woman. She included in her application her adult son, born in [year] (later withdrawn from the application). She was previously married to [Mr A] from 1991 to 2010, and that relationship ended when…

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 1723900 (Migration)

Details

AGLC: 1723900 (Migration) [2020] AATA 2665
Case: [2020] AATA 2665
Decision Date: 23 January 2020

CaseChat Overview and Summary

This matter concerned an application for a Partner (Migrant) (Class BC) visa by a Nigerian-born woman sponsored by an Australian citizen. The applicant and sponsor met in 2010, commenced a relationship later that year, and married in December 2011. The applicant lodged her visa application in April 2012, was granted a Subclass 309 visa in August 2014, and entered Australia in November 2014. The Department requested further information for the Subclass 100 application in November 2016, and additional information was provided subsequently, including statutory declarations, bank statements, and photographs. The Department also conducted a social media search and interviewed the applicant. The Tribunal affirmed the decision not to grant the visa.

The primary legal issue before the Tribunal was whether the applicant and sponsor were in a genuine and continuing spousal relationship at the time of the decision, as required by clause 100.221 of the Migration Regulations 1994. This required the Tribunal to consider whether the parties were married to each other under a marriage valid for the purposes of the Act, demonstrated a mutual commitment to a shared life as a married couple to the exclusion of all others, and lived together or did not live separately and apart on a permanent basis, pursuant to section 5F(2) of the Migration Act 1958. In making this assessment, the Tribunal was required to have regard to all the circumstances of the relationship, including the financial, household, and social aspects, and the nature of the parties' commitment to each other, as outlined in regulation 1.15A(3).

The Tribunal accepted that the parties were validly married. However, it considered evidence suggesting the sponsor's past unfaithfulness and his relationship with another woman prior to and during the applicant's offshore period, including the existence of two children of undetermined paternity who bore the sponsor's surname and to whom the sponsor had acted as a father figure. While the sponsor provided a statement acknowledging past dishonesty, expressing regret, and asserting his commitment to the applicant, the Tribunal found that the evidence did not establish a genuine and continuing spousal relationship that met the requirements of the Act and Regulations. The Tribunal affirmed the decision not to grant the visa.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCEEvidence before the Department The applicant is a [age] year old Nigerian born woman. She included in her application her adult son, born in [year] (later withdrawn from the application). She was previously married to [Mr A] from 1991 to 2010, and that relationship ended when he died (indicated in the application as [January] 2010). She stated there were [number of] children of that relationship. She is [an Occupation 1]. She provides details of a mother, [number of] brothers and one son in Nigeria. The applicant is sponsored by [Mr B], who is a [age] year old Liberian born Australian citizen. He is [an Occupation 2]. He has [number of] siblings, [number] of whom reside in Australia and one in Liberia. The applicant first came to Australia [in] April 2010. The applicant and the sponsor met in September 2010 in Sydney and commenced a long term relationship two months later. They married [in] December 2011. The applicant departed Australia [in] March 2012 and lodged her application for a Partner visa on 12 April 2012. She was granted a subclass 309 visa in August 2014 and entered Australia [in] November 2014 on that visa. On 4 November 2016 she was requested to provide more information for the Partner (Migrant) Subclass 100 application. In response she provided Statutory Declarations from herself and the sponsor dated November 2016; an [Bank 1] joint bank account statement for the period 8-14 November 2016 indicating one deposit transaction of $2,200 followed by a withdrawal the same day in the amount of $2,100; two Form 888 Statutory Declarations from mutual friends of the parties ([Mr C] and [Mr D]); one joint energy account and a bundle of photos. Subsequently another [Bank 1] bank statement for the period September to November 2016 in the applicant’s name; a letter from the applicant; and a [Bank 2] account statement for July – December 2016 in the applicant’s name; various other correspondence and invitations and more photos were submitted in December 2016. On 26 April 2017 the Department undertook a [social media] search relating to the applicant and sponsor, the results of which are contained on Department file [number] at folios 29-31 and are discussed further below. On 2 June 2017 the applicant was interviewed by an officer of the Department by telephone. Notes of the interview are included in Department file [number] at folio 39. She provided details of her and the sponsor’s current living, work and financial arrangements. She referred to sharing premises with the sponsor’s brother, [Mr E] and the owner who is Liberian and known to her as [Nickname]. She stated that she has 4 children from previous relationships living overseas, the sponsor has none and they have no children together but are looking into IVF treatment. Their main social activity is church on Sunday and they were planning a trip to Nigeria in July/August 2017.

Decision

Reasons for decision

For the reasons above, the applicant does not satisfy the criteria for the grant of the visa.DECISION The Tribunal affirms the decision not to grant the applicant a Partner (Migrant) (Class BC) visa.Meena 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 23 December 2019, an additional statement from the sponsor was provided. In this statement he says that he loves the applicant and they are in a mutually exclusive relationship. He acknowledges that he has not always been honest to her and has deep regrets about this. He has apologised and she has forgiven him. He is now doing everything possible to make it up to her and she is learning to trust him again. He states that [Ms F] was never his wife and they only ever had casual sex, which ended years ago. He still has doubts about whether he is the biological father of her two children, but as they lived together at the time of their birth, he played the father figure. He states that he still plays the father role when he is required to. He has no contact with [Ms F] beyond that. The sponsor states that his life and loyalty belongs to Victoria and he is fully committed to her for the rest of his life, despite his past unfaithfulness. He pleads for the Tribunal to give their marriage another chance. CONSIDERATION – FINDINGS AND REASONSWhether the parties are in a spouse or de facto relationship at time of decision 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 requirements for a spouse relationship met? On the evidence of the marriage certificate submitted with the application 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).