1816689 (Migration)

[2019] AATA 1572

1816689 (Migration) [2019] AATA 1572 (8 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1816689

MEMBER:Justine Clarke

DATE:8 March 2019

DATE OF WRITTEN STATEMENT:         3 April 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Partner (Temporary) (Class UK) visa, with the direction that the applicant meets the following criteria for a Subclass 820 (Partner) visa:

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

Statement made on 03 April 2019 at 4:02pm

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – applicant is the spouse of the sponsor – sponsor advised Department that relationship had ended – applicant and sponsor subsequently advised that relationship had resumed – consistency of evidence – sufficient evidence of genuine and long term spousal partnership – decision under review remitted

LEGISLATION
Migration Act 1958, ss 5F, 65, 359A, 359
Migration Regulations 1994, r 1.15A, Schedule 2, cls 820.211, 820.221

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. This is an application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant, [is] a [age] year old national of Syria.

3. On 14 November 2017, the applicant applied for the visa on the basis of his relationship with his sponsor, Ms [A]. At the time of the decision, Ms [A] is [age] years of age.

4. At the time of application, Class UK contained only one subclass: Subclass 820 (Partner). The criteria for the grant of this visa are set out in Part 820 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The primary criteria must be satisfied by at least one applicant. The primary criteria include cl.820.221 which essentially requires that, at the time of decision, the applicant continues to meet the requirements of the applicable time of application subclause, being cl.820.211(2), (5), (6), (7), (8) or (9)—that is, the applicant continues to be the spouse or de facto partner of the sponsor, unless the relationship has ceased and/or certain circumstances exist.

5. The applicant provided the Tribunal with a copy of the primary decision. The delegate was satisfied that, at the time of application on 14 November 2017, the applicant and his sponsor were in a spouse relationship for the purpose of s.5F of the Act and therefore met cl.820.211(2) of Schedule 2 to the Regulations. However, the delegate refused to grant the visa on the basis that, at the time of the primary decision on 18 May 2018, the applicant did not satisfy cl.820.221(1)(a) because he did not continue to meet cl.820.211(2). The primary decision states that:

   ·On 18 April 2018, the sponsor informed the Department that she wished to withdraw her sponsorship as her relationship with the applicant had ceased.

   oThe Tribunal notes that this date is incorrect. Information on the Department’s file makes it clear that the representative first emailed the Department on 21 February 2018 to advise the Department of the end of the relationship between the applicant and the sponsor. This correspondence attached a copy of the sponsor’s signed statement withdrawing her sponsorship which is dated 19 February 2018. 

   oDocuments on the Department’s file show that, on 16 March 2018, the representative emailed the Department attaching documents—including statutory declarations made by both the applicant and the sponsor on 16 March 2018—confirming that the parties had reconciled, that the relationship was ongoing and that the sponsor wished to resume her sponsorship. The primary decision makes no reference to this part of the chronology of events.

   ·On 18 April 2018, the Department wrote to the applicant to inform him of the criteria that must be met to continue with the visa application. The letter requested the applicant to contact the Department if the relationship had resumed and, alternatively, to provide certain information if he wished to proceed with the application despite the breakdown of the relationship. The Department also informed the applicant that he could withdraw his application. 

   ·On 14 May 2018, the Department received the applicant’s response. The applicant declared that the relationship was still ongoing. However, the delegate gave the declaration no weight because the applicant did not provide evidence from Ms [A] that the relationship had resumed and was ongoing.

   oThe Tribunal considers that this is not a correct characterisation of the facts as evidenced by the documents on the Department’s file. While the applicant responded to the Department’s letter of 18 April 2018 by attaching a copy of his statutory declaration of 11 May 2018, as noted above, the applicant had earlier provided evidence from Ms [A] that the relationship had resumed, was ongoing and that she wished resume her sponsorship.

6. The delegate refused to grant the visa on the basis that the applicant did not meet cl.820.221 of Schedule 2 to the Regulations because there was no evidence that he met cl.820.221(1), (2) or (3).

7. On 7 June 2018, the applicant applied to the Tribunal for review of the primary decision. The applicant was represented in relation to the review by his registered migration agent.

8. On 8 March 2019, the applicant appeared before the Tribunal by telephone from Syria to give evidence and present arguments. The Tribunal also received oral evidence from Ms [A] and her son, Mr [B], both in person. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic (Lebanese) and English languages. The representative also attended the Tribunal hearing.

9. At the conclusion of the hearing, the Tribunal gave its decision on the review. The Tribunal has concluded that the matter should be remitted for reconsideration. The following are the reasons for that decision.

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue before the Tribunal is whether, at the time of this decision, the applicant continues to be the spouse or de facto partner of the sponsor or meets the alternative criteria in cl.820.221(2) or (3).

11. The Tribunal notes that the parties submitted evidence of their reconciliation to the Tribunal, namely, statutory declarations made by both the sponsor and her son Mr [B], both on 4 June 2018. Notwithstanding, on 5 December 2018, the Tribunal wrote a letter to the applicant, by way of his representative, pursuant to s.359(2) and purportedly pursuant to s.359A of the Act. With respect to s.359A, the Tribunal invited the applicant to comment on or respond to information that it considered would be the reason, or a part of the reason, for affirming the decision under review. The letter stated that information on the Department’s file indicates that the applicant’s relationship with the sponsoring partner has ended and that the sponsoring partner has withdrawn the sponsorship. With respect to s.359(2), the Tribunal informed the applicant that if he was no longer in a relationship with the sponsoring partner then there were a number of exceptions under which he could be granted the Partner visa. The letter listed exceptions relating to the death of the sponsoring partner, family violence and certain court orders or responsibilities in relation to children. The letter invited him to provide information that he believes may be relevant to the exceptions. The letter stated that, if the comments or response and the information were not provided in writing by 19 December 2018 or an extension of time not sought by that time, the Tribunal may make a decision on the review without taking further steps to obtain the comments or response or the information.

12. On 10 December 2018, within the requested timeframe, the representative informed the Tribunal that the applicant had travelled overseas in an emergency matter as his father had been extremely unwell and subsequently passed away. On 11 December 2018, in response to correspondence from the Tribunal, the representative further stated that she was struggling to get the applicant back onshore as he had broken his visa conditions.

13. On 7 March 2019, the applicant, by way of his representative, submitted a number of documents in support of his claims.

    Whether the parties are in a spouse or de facto relationship

14. Clause 820.221 requires that, at the time of this decision, the applicant is the spouse or de facto partner of an Australian citizen or Australian permanent resident or an eligible New Zealand citizen. The applicant claims to be the spouse of the sponsor who is an Australian citizen. A copy of the sponsor’s birth certificate is on the Department’s file which evidences that she was born in Australia. On the basis of this evidence, the Tribunal is satisfied that the sponsor is an Australian citizen.

15. ‘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).

16. 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?

17. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. The applicant and the sponsor were married in [Suburb 1], Victoria [in] August 2017. A copy of the parties’ Certificate of Marriage is on the Department’s file. 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).

    Regulation 1.15A(3) factors

18. In assessing the issues in r.1.15A(3), the Tribunal has had regard to all documents on the Department’s and the Tribunal’s files, as well as oral evidence given at the hearing.

    The financial aspects of the relationship

19. Any joint ownership of real estate or other major assets, any joint liabilities, the extent of any pooling of financial resources, whether one person in the relationship owes any legal obligation in respect of the other and the basis of any sharing of day-to-day household expenses are relevant factors to consider when assessing the financial aspects of the relationship.

20. At the hearing, both the applicant and the sponsor gave consistent oral evidence about the financial aspects of their relationship. The applicant explained that neither party was working at the moment; he said that he was not working as he was currently living in Syria and that the sponsor was not working because of her serious health condition, which he named. He told the Tribunal that the sponsor was awaiting an operation. Both parties told the Tribunal that the applicant sent some funds to the applicant when she needed them, with the sponsor noting the low level of her Government benefits. Both parties said that the applicant had sent some money to the sponsor prior to her trip to Syria to visit the applicant. In the sponsor’s words, the applicant had helped finance her trip.

21. There is no evidence before the Tribunal that the applicant and the sponsor jointly own real estate or other major assets. The sponsor explained that her house was in her name and that the applicant has stated that he does not want this to change—a decision which had caused her children to respect the applicant. The sponsor said that they were trying to save money but that it was very difficult given their current circumstances.

22. The Tribunal accepts the parties’ oral evidence about the financial aspects of their relationship. Based on the evidence before it, the Tribunal finds that there has been some pooling of financial resources—including when the parties have been living apart in different countries—and some sharing of day-to-day household expenses, namely when they have been living together. 

23. The Tribunal gives some weight to the evidence of the financial aspects of the relationship.

    The nature of the household

24. Any joint responsibility for the care and support of children, the living arrangements of the persons and any sharing of the responsibility for housework are relevant matters to be considered when assessing the nature of the household.

25. The applicant has a son from his previous relationship. Both the applicant and the sponsor gave consistent oral evidence that the sponsor had not met the applicant’s son yet. The applicant told the Tribunal that this was because he had not yet had an opportunity to introduce the sponsor to his son, noting cultural differences. Notwithstanding, the sponsor was able to tell the Tribunal details about the applicant’s son’s name and age.

26. The sponsor has a daughter and a son from her previous relationship. The applicant gave oral evidence that he played a role in providing care and support to Mr [B], the sponsor’s son who is not yet 18 years of age. For example, he told the Tribunal that when he had been living in Melbourne with the sponsor that he had given Mr [B] pocket money. The sponsor provided more detailed evidence. For example, she told the Tribunal that the applicant used to take her son out to eat Asian food. In one of the documents submitted to the Tribunal, the sponsor stated that the applicant had been a particular help to her in ensuring the smooth running of the household while she was undertaking her medical treatment and in making sure that her son was not affected too greatly by the change to routine. She also outlined the ways in which the applicant had helped support her son following the suicide of her son’s best friend. In her own words, ‘[m]y son really struggled and [the applicant] was amazing for him. Please don’t [take] this support away from him, [the applicant] really is the only father figure my son has at the moment’. She gave consistent oral evidence at the hearing. Mr [B] also told the Tribunal that he had been appreciative of the applicant’s care and support. He told the Tribunal that the applicant had helped him with his homework and other commitments, noting that the applicant had always ensured that there was food there and that the dishes were done. There is evidence of joint responsibility for the care and support of the sponsor’s son, Mr [B]. The Tribunal gives great weight to this evidence.

27. With respect to the parties’ living arrangements, the applicant and the sponsor gave consistent oral evidence that the applicant was currently living with his mother in Syria and that the sponsor was living with her son in the main house in [Suburb 1], Victoria, Australia while the sponsor’s daughter and her husband lived in a bungalow on the property. The applicant said that prior to his departure from Australia [in] July 2018, he had been living with the sponsor and her son in the sponsor’s home in [Suburb 1]. The sponsor said that they had lived together in her home in [Suburb 1] from the time the applicant first arrived from overseas (which the Tribunal notes was in July 2017). The applicant gave oral evidence that, although he and the sponsor had had some disagreements, they had never lived apart when he was in Australia. The sponsor told the Tribunal that she had encouraged the applicant to leave Australia in order to meet up with his gravely ill father. As referred to earlier, the applicant has been unable to return to Australia because he departed Australia on a Bridging A visa. The Tribunal accepts the parties’ oral evidence as to their living arrangements.     

28. The Tribunal also accepts the parties’ consistent evidence about the largely shared responsibility for housework in the periods when they have lived together, with the exception being those periods when the sponsor was undergoing medical treatment in which case the applicant assumed responsibility for the housework and caring for the sponsor and her son.

29. The Tribunal gives great weight to the evidence of the nature of the household.

    The social aspects of the relationship

30. Whether the persons represent themselves to other people as being married to each other, the opinion of the persons’ friends and acquaintances about the nature of the relationship and any basis on which the persons plan and undertake joint social activities are relevant matters to be considered in determining the social aspects of the relationship.

31. There is evidence before the Tribunal that, at the time of the Tribunal’s decision, the applicant and the sponsor were continuing to represent themselves to other people as being married to each other. For example, the Tribunal notes some photographs that were submitted from the sponsor’s most recent trip to Syria which depict the parties socialising with others. As noted earlier, the sponsor’s son attended the hearing to give oral evidence in support of the review application. He gave oral evidence that he was of the opinion that the relationship was a genuine and continuing one and was able to give reasons for holding this view. For example, he told the Tribunal that he had lived with the parties so had observed them snuggling on the couch. The Tribunal found Mr [B] to be an impressive and highly credible witness.

32. The review applicant and the visa applicant gave consistent oral evidence about the social aspects of their relationship. The applicant gave patricularly detailed oral evidence of the joint social activities that he and the sponsor had undertaken together both when living in Melbourne and on the sponsor’s recent trip to visit him in Syria. The Tribunal notes the documentary and photographic evidence that has been submitted to the Tribunal in respect of this trip.

33. In light of the evidence before the Tribunal, the Tribunal finds that there is social and public recognition of the relationship.

34. The Tribunal gives weight to the evidence of the social aspects of the relationship.

    The nature of the person’s commitment to each other

35. The duration of the relationship, the length of time during which the persons have lived together, the degree of companionship and emotional support that the persons draw from each other, and whether the persons see their relationship as long-term are all aspects to be considered in determining the nature of the person’s commitment to each other.

36. The parties have provided detailed evidence about the inception and development of their relationship; having known one another for nearly 30 years, having first being introduced in Syria and developing a friendship. The evidence before the Tribunal is that the parties have been in an exclusive and committed relationship since 1 July 2015, but for the period when they experienced problems in their relationship which led the sponsor to withdraw her sponsorship. Both parties gave detailed evidence about the reasons for the problems in their relationship and their steps to reconciliation. The Tribunal has taken into account the parties’ respective ages, backgrounds and life experiences and accepts that, at the time of this decision, neither party is in a relationship with any third party.

37. At the time of this decision, the parties have been in a committed relationship for over three and a half years and have been married for over one and a half years. The Tribunal gives weight to the length of the relationship.

1. The Tribunal also gives weight to the length of time during which the persons have lived together, noting that the parties were so keen to see each other again that the sponsor travelled to Syria to visit the applicant despite her very fragile health. The Tribunal considers this to be strong evidence of the degree of companionship and emotional support that the persons draw from each other.

2. They both told the Tribunal that they saw their relationship as being for the long term and they were able to give their reasons for holding this view. They gave consistent oral evidence that, now that they are living in different countries, they maintain regular contact with each other. The sponsor gave oral evidence that they were in contact at least three times a day and the applicant told the Tribunal that they spoke daily for two hours or more. They were each able to provide detail about the nature of their conversations. The Tribunal accepts that these frequent and ongoing communications between the parties are indicative of their genuine commitment to the relationship. In light of all the evidence before the Tribunal, the Tribunal finds that the parties see their relationship as long term.

3. The Tribunal found both parties to be open in answering the Tribunal’s questions. The Tribunal found their evidence to be frank, very honest and very credible. They spoke about their relationship with simplicity and honesty. They gave consistent oral evidence but their answers did not appear rehearsed, but rather spontaneous and natural. The Tribunal thanks both parties for their honesty and openness in sharing so much deeply personal information with the Tribunal.

4. The Tribunal is satisfied, considering all of the evidence cumulatively, that the parties have demonstrated and continue to demonstrate a level of commitment to one another and to their spousal relationship as contemplated in the Regulations.

5. The Tribunal places great weight on the nature of each person’s commitment to the other.

   CONCLUSION

6. As stated above, the Tribunal is satisfied that the parties are validly married, as required by s.5F(2)(a) of the Act.

7. After considering all the evidence before it and for the reasons given with respect to the r.1.15A(3) matters, the Tribunal is satisfied that, at the time of this decision, the applicant and the sponsor:

   ·have a mutual commitment to a shared life as husband and wife to the exclusion of all others, as required by s.5F(2)(b) of the Act;

   ·have a genuine and continuing relationship, as required by s.5F(2)(c) of the Act; and

   ·do not live separately and apart on a permanent basis, as required by s.5F(2)(d)(ii) of the Act.

8. Given these findings, the Tribunal is satisfied that the requirements of s.5F(2) are met at the time of this decision.

9. However, the spouse requirement in cl.820.211(2)(a)(i) is not the only requirement in cl.820.211(2) which must be satisfied at the time of application, and thus which must continue to be met at the time of decision. The sponsorship requirements in cl.820.211(2)(a)(ii) and cl.820.211(2)(c) must also be satisfied, and, if the applicant was not the holder of a substantive visa at the time of application, then the requirements in cl.820.211(2)(d) must also be satisfied.

10. While the sponsor sought to withdraw her sponsorship in February 2018, in March 2018 she informed the Department in writing that she wished to resume her sponsorship. On the basis of this documentary evidence on the Department’s file, the Tribunal is satisfied that the applicant is sponsored by the sponsor and that cl.820.211(2)(c)(i) continues to be met at the time of decision. There is no information before the Tribunal to suggest that the circumstances outlined in cl.820.211(2B) apply so the Tribunal finds that the sponsor is not prohibited by that subclause from being a sponsoring partner. Accordingly, the Tribunal finds that cl.820.211(2)(a)(ii) continues to be met.

11. The applicant’s movement records evidence him as having been granted a Subclass 300 Prospective Marriage visa on 7 July 2017. He held this visa upon entering Australia [in] July 2017 and upon applying for the Partner (Temporary) (Class UK) Subclass 820 visa on 14 November 2017. As the applicant held a substantive visa at the time of application, the further requirements in cl.820.211(2)(d) need not be met.

12. The Tribunal finds that, at the time of this decision, the applicant continues to meet the time of application requirements in cl.820.211(2) and so meets cl.820.221(1)(a).

13. Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 820 visa.

    DECISION

14. The Tribunal remits the application for a Partner (Temporary) (Class UK) visa, with the direction that the applicant meets the following criteria for a Subclass 820 (Partner) visa:

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

    Justine Clarke
    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).