1820847 (Migration)

[2022] AATA 4539

1820847 (Migration) [2022] AATA 4539 (8 October 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Ms Varni Sathasevam (MARN: 1688817)

CASE NUMBER:  1820847

MEMBER:David Barker

DATE:8 October 2022

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(2)(b) of Schedule 2 to the Regulations

Statement made on 08 October 2022 at 5:57am

CATCHWORDS  
MIGRATION – Partner (Migrant) (Class BC) visa – Subclass 100 (Spouse) – genuine spousal relationship – financial aspects – nature of the household – social aspects – nature of the commitment – decision under review remitted 

LEGISLATION 
Migration Act 1958 (Cth), ss 5F, 65, 359, 376 
Migration Regulations 1994 (Cth), r 1.15A; Schedule 2, cl 100.221 

CASES 
He v MIBP [2017] FCAFC 206
Re MILGEA and Dhillon [1990] FCA 144 

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 on 12 July 2018 to refuse to grant the visa applicant a Partner (Migrant) (Class BC) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 29 September 2014 on the basis of his relationship with his sponsor. At that time, Class BC contained one subclass: Subclass 100 (Partner).

3. The criteria for the grant of a Subclass 100 visa are set out in Part 100 of Schedule 2 to the Migration Regulations 1994 (Cth) (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.

4. The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy cl.100.221(2)(b) because they were not satisfied that there was sufficient probative   evidence to demonstrate that  the financial, household, social and commitment aspects of the relationship to show that the applicant continued to be in a genuine relationship with the sponsor.

5. The applicant appeared before the Tribunal on 27 September 2022 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 Tamil (Sri Lankan) and English languages.

6. The applicant was represented in relation to the review.

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

   BACKGROUND

8. The applicant is a national of Sri Lanka and is [age] years of age.

9. The sponsor was born in Sri Lanka and is [age] years of age. She came to Australia in 2002 on a humanitarian visa and was granted Australian citizenship in 2005.

10. Information provided by the parties indicate that they were introduced to each other, through  arrangement by their parents, over skype on 14 January 2014. They first met face to face on 2 April 2014, when the sponsor travelled to Sri Lana and subsequently, entered into an arranged marriage [in] April 2014.

11. The applicant was granted a Subclass 309 Provisional Partner visa on 25 November 2015 and first travelled to Australia [in] February 2016.  The Department initiated the second stage of the processing of the combined Subclass 309 / 100 Partner visa application on 29 July 2016. In explaining why the Subclass 100 Residential Partner visa was refused, the delegate in their July 2018 decision record noted the following unsuccessful information requests:

    29 July 2016     A generic document request letter for consideration of your Subclass 100

    (Partner (Migrant)) visa was sent to your last notified email address email

    address [address specified].

    19 December 2017 A document request letter for consideration of your Subclass 100 (Partner

    (Migrant)) visa was sent by email to last notified email address

    [address specified]

    10 April 2018     A second document request letter for consideration of your Subclass 100 (Partner (Migrant)) visa was sent by email to [address specified] and      a copy sent by post to your sponsor at [Address 1]. The posted letter was returned to the department as “Return to sender”.

    26 April 2018     An invitation to provide a Form 929 was sent to you at [Address 2].

    09 May 2018     You presented to the client counter at the department’s Parramatta office and updated your address details to [Address 3].

    29 May 2018     A document request letter for consideration of your Subclass 100 (Partner (Migrant)) visa was sent by post to [address specified]. No response to this request has been received.

    To date, there is no evidence of any new change of address or that you have made further contact with the Department.

12. In refusing the subclass 100 visa, the delegate noted:

    The information I have available on file is relevant to whether or not you were the spouse or de facto partner of the sponsor at the time the visa application was lodged. At the time of this decision I have no information before me which demonstrates that you have continued to be the spouse or de facto partner of the sponsoring partner. I therefore find that you do not satisfy subclause (2).

    Summary
    As you do not satisfy any of subclauses 100.221 (2), (2A), (3), (4) or (4A), I find that you do not satisfy subclause 100.221(1) and do not meet the legal requirement in clause 100.221 in Schedule 2 to the Regulations on the date I made my decision.

13. Prior to the hearing, the Tribunal  received documentary evidence from the applicant  including, but not limited to financial records, medical evidence, evidence of employment,  utility accounts,  communication records, statutory declarations from the applicant  and sponsor,  correspondence records, witness support declarations, rental tenancy information and photographs.

    consideration of claims and evidence

14. The issue in the present case is whether, at the time of decision, the applicant continues to be the spouse or de facto partner of the sponsoring partner.

15. In making its findings, the Tribunal has considered the documents contained in the Department and Tribunal files as well as the oral evidence provided by the applicant and sponsor at the hearing. The Tribunal found that the applicant and sponsor provided their evidence at hearing in a coherent, plausible and reasonable manner.  The Tribunal is satisfied that the oral evidence at hearing is consistent with the documentary evidence available for the Tribunal’s consideration. In making this comment there is significantly more documentary evidence before the Tribunal, in relation to aspects of the parties’ spousal relationship than was available to the delegate at the time of their decision.

16. The Department issued a s 376 Certificate over certain documents on the Departmental file. The applicant was provided a copy of the certificate prior to the hearing, along with an invitation to file submissions in relation to the validity of the certificate.  No concern as to the validity of the Certificate were made prior to or at the hearing. The Tribunal informed the applicant that it considered the Certificate validly issued and indicated the Tribunal would exercise the discretion provided to it by the s 376 Certificate to not release the specified documents, but to give the applicant the gist of information contained in the documents, namely an allegation made in December 2017 that the parties were in a contrived relationship  and do not reside together.  The Tribunal informed the applicant that it did not consider this information upon which it would rely on, as the focus of the review is the nature of the relationship between the applicant and sponsor at the present time, that ism, the time of decision.

17. With respect to not providing information to the delegate in response to information requests sent as part of the second stage of the processing of the combined Subclass 309 / 100 Partner visa application, the applicant gave evidence, by way of submissions and evidence at hearing that he did not receive some of these requests due to issues pertaining to transitioning phone sim cards from Sri Lanka to Australia. He said that he had also not at any stage resided at [Address 1] referred to by the delegate.  The Tribunal is not fully persuaded  by these explanations and notes there is evidence of significant disruption and tension in the parties spousal relationship.  However, given the Tribunal’s assessment of the parties relationship as at the time of its decision, as is outlined in the following sections, the Tribunal does not consider the lack of evidence provided in response to Departmental requests to be a determinative factor in this matter.

    Whether the parties are in a spouse or de facto relationship

18. 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.

19. 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 reg 1.15A(3), which is extracted in the attachment to this decision. Each of the specific matters contained in reg 1.15A(3) are effectively questions which must be answered: He v MIBP [2017] FCAFC 206.

20. In Re MILGEA and Dhillon [1990] FCA 144, the Federal Court stated, “people enter marriages with a variety of purposes and motives, hopes and anticipations, so that it is not possible to classify some purposes etc. as according to what may be described as 'community expectations'. It is not necessarily inconsistent with a genuine marriage relationship that it was entered into by one or both parties with a view to material benefit or advancement, as for example with the hope of becoming eligible to reside in a particular country. The true test, we would suggest the only test, is whether at the time at which the matter has to be decided it can be said that the parties have a mutual commitment to a shared life as husband and wife to the exclusion of others."

    Are the parties validly married?

21. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. The Departmental file contains a copy of a marriage certificate, with translation, issued by the Sri Lankan authorities in [Town 1] [in] April 2014. 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?

    Financial aspects of the relationship

22. The Tribunal has considered the financial aspects of the relationship, including joint ownership of assets; joint liabilities; extent of pooling of financial resources; any legal obligations owed to the other party; and any sharing of day-to-day household expenses.

23. The parties gave evidence that to date they have no shared property assets or other assets of any significance. The sponsor has an investment property asset in Australia, which she purchased prior to the parties relationship. The loan for this property remains in her name and the rental income from the property goes towards the loan payments.    The Tribunal perceives nothing untoward or unusual in such a circumstance. The parties do  not have shared liabilities.  With regard to the pooling of funds, the parties have shared costs associated with fertility treatments, which the applicant described as not insignificant. He indicated the sponsor also purchased a mobile phone for his use. The sponsor gave evidence that he meets ta reasonably significant portion of  regular household expenses, as he earns a greater income than the sponsor and that  the debit card linked to his bank account is used to purchase a lot of their groceries and other regular  household items.

24. The applicant gave evidence that he and the sponsor have their wages go into their respective individual bank accounts and that if they are short, with respect to a particular commitment, such as the sponsor’s loan payments, or required debt car payments, they make up this amount from their respective accounts.  With respect to a recently opened joint account, the applicant indicated that this is where they are placing savings, as their plan is to sell the sponsor’s investment property, at some stage and pool funds from the sale with funds they have saved to purchase a larger property in which they can live.  The sponsor is not currently working, having ceased casual employment with [Employer 1] in March 2022.

25. Submissions provided in association with the review note that the sponsor has in the past received financial assistance from her parents to service the loan on her investment property and that initially the applicant had difficulty securing employment and that the work he secured and where he continues to work in a [specified] facility is not reflective of his qualifications or previous employment in Sri Lanka, where he worked in [Sector 1].

26. In considering the financial aspects of the parties’ relationship, I note that there is more evidence, in the form of banking and other financial records, before the Tribunal, than was available to the delegate at the time of their decision.  I am satisfied the parties claims at hearing about this factor are consistent with the documentary evidence that they have provided.  I am satisfied the parties have given a plausible explanation for how their regular expenses are met.   The Tribunal finds that the financial aspects of the relationship support a finding that the parties have a mutual commitment to a shared life together.  The Tribunal has given weight to this aspect of the parties’ relationship.

    The nature of the household arrangements

27. The Tribunal has considered the nature of the household, including: any joint responsibility for the care and support of children; the parties' living arrangements; and any sharing of housework.

28. The parties do not share joint responsibility for the care and support of children.  In relation to this factor, the applicant gave evidence at hearing that starting a family is a priority for the parties, but to date they have not had success.  He indicated that they have sought fertility treatment and that unfortunately the sponsor has miscarried on more than one occasion.  He said that the pandemic disrupted the IVF treatment but that they have maintain their goal of having children and are planning further IVF treatment. Medical evidence provided in association with the review show the fertility interventions undertaken by the parties. The Tribunal was struck by sincere nature of the applicant’s evidence at hearing with respect to this factor and accepts his claims with respect to this factor.

29. As to their living arrangements, the delegate raised concern that there was some indication that the parties had not at all times, since the applicant arrived in Australia, shared a household. The applicant, in evidence at hearing and in written submissions, concedes this and places it into context by explaining that he initially stayed with the sponsor in her family home, but then they  moved  briefly into rental accommodation in [Suburb 1], NSW in late 2016 , before the sponsor moved back to her parent’s house to care for  ill mother and the applicant moved in to shared accommodation closer to  his place of work.  The applicant gave evidence that he and the sponsor have not lived apart since early 2017 and now  again reside in rental accommodation in [Suburb 1].  The Tribunal has reviewed the evidence of rental tenancy provided with the review application supports this claim.

30. With regard to the sharing of housework, the applicant gave evidence that  the sponsor does most of the cooking, whilst he takes responsibility for cleaning their apartment.  He said that they shop together on his day off and that this is an activity they enjoy and also culturally appropriate.  The sponsor’s evidence with respect to this factor was consistent with that provided by the applicant.

31. In considering the nature of the parties’ household arrangements, the Tribunal is satisfied the applicant and sponsor gave plausible accounts of their living arrangements. The Tribunal is satisfied that the nature of the parties’ household arrangements supports a finding that they have a mutual commitment to a shared life together.  The Tribunal has given weight to this aspect of the parties’ relationship.

    The social aspects of the relationship

32. The Tribunal has considered the social aspects of the relationship, including whether the parties represent themselves to other people as being in a de facto relationship with each other; the opinion of friends and acquaintances about the nature of the relationship; and any basis on which the persons plan and undertake joint social activities.

33. The Tribunal has reviewed the available evidence and is satisfied it demonstrates that the parties have presented as a couple to NSW Health, other health professionals and medical practitioners and superannuation documents. 

34. The evidence provided by witnesses, through declarations provided at the time of application and at the present time supports the claim that the parties present to family and friends as a couple in a committed relationship.

35. The Tribunal has reviewed photographs and is satisfied these show the parties together in the company of the other people, including when in company with the secondary applicants,  in a manner which is consistent with their representation to these other people as a couple. The Tribunal is also satisfied the context of photographs provided show the parties sharing social activities and interests, over time, in  manner which is consistent with evidence provided at hearing.

36. The Tribunal finds that the parties represent themselves as a couple in a genuine and continuing relationship and that is recognised by their friends and family. 

37. The Tribunal finds the social aspects of the relationship support a finding that the parties are in a genuine and continuing relationship and have a mutual commitment to a shared life together to the exclusion of all others. 

    The nature of the parties’ commitment to each other

38. The Tribunal has considered the nature of persons' commitment to each other, including: the duration of the relationship; the length of time they have lived together; the degree of companionship and emotional support they draw from each other; and whether they see the relationship as long-term.

39. The applicant gave evidence at hearing that the parties marriage was arranged through the involvement of their respective parents and family networks. He indicated that this reflects cultural traditions with which both he and the sponsor are comfortable but that he nonetheless experienced significant  challenges adjusting to Australian societal norms.  The Tribunal notes that this is quite consistent with evidence on the Departmental file and explanations provided by the applicant in response to an information request to him, pursuant to s 359(2), prior to the hearing. On the basis of this cumulative evidence the Tribunal finds the parties relationship was under significant strain and that they lived separately for periods in the late 2016 and early 2017 period. The Tribunal is not however of the view that the available evidence demonstrates that the parties relationship at any stage broke down irrevocably, or that the sponsor expressed an intention at any stage to formally withdraw sponsorship of the applicant’s visa.

1. As to their current circumstances, the parties gave consistent and credible evidence as to their commitment to each other and their relationship. The Tribunal accepts that the parties provide each other with emotional support and companionship and notes that their separate evidence with respect to this factor was compelling and the Tribunal has no concern as to the possibility it was disingenuous. The Tribunal is satisfied that their goals, to start a family and consolidate a family life together in Australia is both plausible and reasonable.  The Tribunal accepts this is the parties primary goal and that identified secondary goals such as purchasing a home and the applicant getting employment in [Sector 1] are also reasonable and reflect the aspirations of many couples in Australian society. 

2. The Tribunal  finds the parties married in April 2014. The Tribunal accepts that the parties have not lived separately and apart, for more than relatively brief periods of time, since early 2016. The Tribunal finds that the relationship of the applicant and sponsor can appropriately regarded as long term.  The Tribunal finds the parties both view their relationship as long term and has given weight to this factor and as well the duration of both the relationship and the period in which the parties have lived together.

   Overall assessment of the spouse relationship 

3. The Tribunal  notes there is no evidence to suggest either of the parties are in a relationship with a third party.  There is also no evidence to establish the parties do not live together at the present time at the same residential address. The Tribunal considers the financial and social aspects of the parties’ relationship are indicative of a couple in a spousal relationship. The Tribunal is satisfied on the evidence currently before me that the parties live together, in a shared household in which there is a division of labour consistent with the religious and cultural traditions by which they live. The Tribunal is satisfied the applicant  and sponsor have a strong commitment to each other and their marital relationship.  The Tribunal is satisfied the parties regard their marriage as a positive element in their lives. 

4. Consistent with Dhillon, the Tribunal  considers that the relevant test in this matter is whether at the time at which the matter has to be decided, it can be said that the parties have a mutual commitment to a shared life to the exclusion of others. It is the Tribunal’s view that there is persuasive evidence that at the time of decision the parties are in spousal relationship.

5. On the evidence, the Tribunal  is satisfied that the parties have a mutual commitment to a shared life to the exclusion of all others, that the relationship is genuine and continuing, and the couple live together, and do not live separately and apart on a permanent basis: s.5F(2)(a)-(d).

6. Given these findings The Tribunal is satisfied that at the time of this decision the parties are in a spousal relationship.

7. Therefore, the applicant meets cl.100.221(2)(b).

8. 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

9. 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(2)(b) The Tribunal affirms the decision not to grant the applicant a Partner (Migrant) (Class BC) visa.

   David Barker
   Member

   
   
   

   Attachment  - 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).