1823402 (Migration)

[2023] AATA 714

1823402 (Migration) [2023] AATA 714 (20 January 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr MIGUEL MANGESH SUMANTH MUDBIDRI (MARN: 0745862)

CASE NUMBER:  1823402

MEMBER:Angela Cranston

DATE:20 January 2023

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 820.211(2)(a) of Schedule 2 to the Regulations

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

Statement made on 20 January 2023 at 11.03am

CATCHWORDS

MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – genuine and continuing relationship – financial, household and social aspects of relationship and nature of commitment – validly married – consistent evidence, substantial documentation and supporting statements – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), ss 5F, 65, 375A

Migration Regulations 1994, r 1.15A, Schedule 2, cl 820.211

CASE

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 (Cth) (the Act).

2. The applicant applied for the visa on 14 March 2017 on the basis of his relationship with his sponsor who, according to movement records, is an Australian citizen who has turned 18. At that time, 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 (Cth) (the Regulations). The primary criteria must be satisfied by at least one applicant.

3.    In his application, the applicant stated that his family members were his parents, younger sister and brother and step-child [Ms A], that he was married to the sponsor on [Date], that her family included her divorced parents and daughter. He also stated the following:

Me and [the sponsor] share almost all the house-hold responsibility and expenses of our daily life. We share everything in 50-50 whatever is altogether while we are spending we share later half half. We got a joint bank account together too and always try to keep each other expenses and then divide into half whatever it is on our expenses.

I am living together since [Date] after marriage. We are living in a two bedroom apartment in [Suburb 1] together with [Ms A] which is owned by mother of [the sponsor]. Me and [Ms A] get along so well as I help her out with her homework most of the night whenever I get chance. We almost take care of each other in every way and share all of our household duties as I and [the sponsor] whoever is at home. If we have a free time we try to help each other by doing laundry, cleaning, cooking, tidying it up, shopping etc. There is no specific work divided between us but whatever we can and however we can, we always try to help each other so that we all have a spare time. Sometimes we will cook together and share the work in the family to make it more interesting and fun so everyone is getting involved and we can have more quality time with together. We always motivated each other in every way and daily work is always flourishing our relationship in next level. Therefore it has taken our intimate relationship very deep and we feel that we are very romantic couple too. It definitely has helped us open up our heart more and feel more both   

We meet each other quite often with friends sometime mine sometime [the sponsor] and her family either at home or we go outside to spend some quality time somewhere together. We got married on [Date] at [Venue] which is located in [Suburb 2] where all our friends and family was able to manage and come in for the best day of my life.

We got married on [Date] at [Venue] which is located in [Suburb 2] NSW where all our friends and family was able to manage and come in for the best day of my life. Since we both have many friends and families, we always attend the family gatherings, birthday parties together. We also invite our friends and families to our place when we are free.

Our relationship started as work mates at [a] shop. We used to chat a lot and that is how we became very close friends and within a month we start to meet outside for a lunch or dinner. We loved each other as a friend to hang out with and we used to meet either at the place of my friends or at the place of her friends or somewhere outside in city or outside. That is how 1 year 2 months passed by and then she approached me. We started sharing our feelings all through this time and then we started daring from 7^th of January 2016. Every week or sometimes a fortnight she used to stayed at my place for 1 or 2 nights at [Address, Suburb 3]. That is how our relationship started to become stronger and serious. She then introduced me to her mother and daughter. I then started meet them more often. I started feeling like they are part of my family. I proposed her on 10 Sep 2016 with a ring and she said yes to me. After few weeks down the track later in our life, we started thinking and managing marriage dates from Marriage Registry. We then found out we are not allowed to bring that many people at the registry so we decided not to go ahead with the wedding at the registry. We wanted all of our friends and family whoever is here in Sydney to be there at our wedding. We then decided to change the place to a function centre. We got married on [Date] at [Venue] at [Suburb 2], NSW. We have been living together since from [Date] at the apartment owned by mother of [the sponsor] at [Suburb 1] where we are paying her rent. Thankfully both of our families are very happy that we are happy together and we are happy to our fullest with each other.

4.      Also enclosed were joint:

[Bank account] statement

[Retailer 1] receipt 

[Accommodation] tax invoice

[Retailer 2] receipt

[Phone] account

[Internet] account

Electricity account

5.    Also enclosed was a marriage certificate stating the applicant and sponsor were married on [Date] and statutory declarations from [Ms B] and [Ms C] and voluminous photos.

6.    The delegate refused to grant the visa on the following basis:

Financial aspects
In assessing the financial aspects of the relationship, I have considered your financial arrangements with your sponsor such as joint ownership of assets, the extent to which you pooled your financial resources, any legal obligations or joint liabilities each of you has to the other in the general sharing of household expenses.
Your sponsor provided a joint [Bank account] statement for the period 28 February 2017 to 28 June 2018. This account appears to have one deposit from you, Centrelink payments between March 2017 and June 2017 and other deposit transactions. In assessing the nature of the transactions of this account, I am not satisfied that sufficiently demonstrates that you and your sponsor have pooled your finances together and shared joint household expenses. In analysing the transactions in and out of these accounts I note that there is a common pattern of funds being withdrawn shortly after they are deposited into the account and there are minimal transactions that can be attributed to the joint running of the household. In the absence of other information and evidence it is difficult to assess the extent of your financial arrangements between you and your sponsor and as a result I have given this limited weight as evidence of shared finances or the pooling of financial resources.
Overall, I am not satisfied that you and your sponsor have pooled your financial resources in any way, have any significant joint assets or liabilities, have made any significant joint purchases or that you share any day-to-day financial responsibilities from the time you were married up to present.
Nature of the household
In assessing the genuine and continuing nature of the relationship, I have considered your living arrangements such as shared living spaces and your daily routine.
You and your sponsor have provided joint electricity bills between 8 November 2017 and 24 April 2018, [Internet] invoices between 5 March 2018 and 14 June 2018, joint [Retailer 1] and [Retailer 2] invoices dated 7 December 2017 and 9 July 2018 respectively, your [Phone] bills addressed to your sponsor between 28 May 2017 and 28 June 2018 and your sponsor’s Australian Federal police clearance dated 12 January 2018 to [Address, Suburb 1]. I accept that you and your sponsor have used this address for mailing purposes, in the absence of any other substantial evidence demonstrating that you physically resided at this address since lodging this partner visa application which was 14 March 2017, I am not satisfied that you and your sponsor were jointly living in a spousal relationship and sharing a joint household.
As you and your sponsor applied on spousal grounds, you must establish that you are living together as spouses or do not live separately and apart on a permanent basis. I am not satisfied that you have established a joint household or that you share the responsibilities of a household from the time you lodged this application up to present.
Social aspects
In assessing the social aspects of the relationship, I have considered your social interaction such as the way you and your sponsor represent your relationship to others and the level of recognition of your relationship by friends and family.
You and your sponsor have provided statutory declaration from friends. The both declarations confirm that they have met you both, one of the declarants stated that you are very caring and supportive of your sponsor’s daughter [Ms A]. You have provided no documentary evidence to support this claim.
You and your sponsor have provided hotel invoice, photos of your wedding and other social events with family and friends. While I am satisfied that this evidence shows that you represented yourselves as a couple to your friends and family members, in the absence of other supporting documentation they do not constitute convincing evidence of a committed spouse relationship.
From the information provided, I am not satisfied that you and the sponsor present yourselves to family and friends as being in a committed partner relationship, or are regarded by others as such.
Nature of the person’s commitment to each other
In assessing the nature of your commitment to each other, I have considered the circumstances of your meeting, relationship development, length of time you have lived together, the degree of companionship and emotional support that you draw from each other and whether you see the relationship as a long-term one.
You and your sponsor claim to have known each other since 30 April 2014 and were married on [Date]. I accept that you and your spouse are lawfully married as you have provided a marriage certificate. However you have not provided any substantial evidence of mutual obligation, companionship, emotional support and long-term planning - typical elements of marriage. Overall I am not satisfied that you see the relationship as a long-term one, that you draw emotional support and companionship from each other or that you have a commitment to a shared life together.

7.    The applicant applied for review on 13 August 2018.

8.    At review, the applicant provided the following documents:

Joint [Bank account] statement up to 28 June 2022

Updated joint [Internet], electricity [Phone] accounts

Flight details

Vacation evidence

Further photos

Change of address evidence

ATO evidence identifying the applicant as the sponsor’s spouse.

Statements from both the applicant and sponsor.

9.    The applicant appeared before the Tribunal on 10 January 2023 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor, [Mr E] and [Mr F].

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

2. The applicant stated that his mother passed away in 2014 and had internal bleeding. He stated the sponsor knew this. He stated in her family, there was her mother, her mother’s [partner], her [father], her aunt, grandmother, and her daughter [Ms A]. He stated the sponsor’s former partner was [Mr D], they were together when they were young but were never in a real relationship and had not lived together. He stated they separated in 2008 but [Mr D] continued to meet his daughter.

3. He stated [Ms A] was [Age 1] and turned [Age 2] in May and had just finished year [level] at [Suburb 1] school. He stated when he and the sponsor were overseas, [Ms A] stayed with her father. He stated from Monday to Friday [Ms A] stayed with the applicant and sponsor and on the weekend, sometimes went with her father.     

4. The applicant stated he met the sponsor at work in 2014 where she had been his manager. He stated his highest qualification was year 12 and he had been studying a Diploma of [Subject] when he met the sponsor. He stated the sponsor knew that.

5. He stated he was living at [Suburb 3] when they met. The Tribunal put to him that according to the visa application in October 2014 when they met, he was living at [Suburb 4]. He stated the sponsor came to [Suburb 3] but not to [Suburb 4].  The applicant stated he was currently living at [Suburb 5] for 4 months and before that [Suburb 6] for 15 months. He stated he lived in [Suburb 5] with the sponsor, [Ms A] and behind the house was [neighbours’ names specified]. He stated the sponsor knew that.

6. The applicant stated he currently worked for [Employer 1] and recited the sponsor’s mobile number as [Number]. The Tribunal indicated that was the number included as the sponsor’s number in the visa application form. He also stated he had last seen [Mr E] on New Years eve at [a Hotel].       

7. The sponsor stated that the applicant’s family consisted of his parents and younger sister and brother. She stated his mother had died in 2014 and had internal bleeding. She stated in her family were her mother, step-father, father and daughter. She stated her daughter went to [Suburb 1] High School and was in year [level]. She stated that when she and the sponsor went to Nepal in 2019, her daughter stayed with her family. She also stated that she fell pregnant with her former partner when she was [Age], that it was not a proper relationship and that currently, her former partner saw their daughter on weekends.

8. The sponsor stated that the applicant had studied [Subject] in 2014/2015 and when they met in October 2014 but he had not completed his studies. She stated she had gone to his [Suburb 3] address. She stated that she and the sponsor currently lived in [Suburb 5] since September 2022. She lived with her daughter, the sponsor and behind them was [neighbours’ names specified]. She stated the applicant currently worked for [Employer 1] and [Employer 2] and the sponsor was not currently working.  She currently did not have a government income.

9. [Mr E] stated he last saw the applicant and sponsor on New Years eve at [a Hotel].  He stated they were genuine.

10. [Mr F] stated the parties were genuine.        

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

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The issue in this case is whether the applicant is the spouse of an Australian citizen.

Whether the parties are in a spouse or de facto relationship

1. Clauses 820.211 and 820.221 require that at the time the visa application was made, and 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. In the present case the applicant claims to be the spouse of the sponsor who is an Australian citizen.

2. ‘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.

Are the parties validly married?

1. 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 on [Date] under a marriage that is valid for the purposes of the Act as required by s 5F(2)(a).

2. Are the other requirements for a spouse relationship met? ‘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.

Are the other requirements for a spouse relationship met?

1. The Tribunal notes that the Department was not satisfied based on the information given that the parties were in a genuine and continuing relationship because they questioned in part a lack of evidence in relation to financial, household and social aspects of the relationship as well as a lack of evidence as to the party’s commitment to one another. There were also concerns that the relationship was contrived. Since then, the parties have provided substantial documentation that identifies that they have pooled their financial resources over many years, have been living together, have told Australian government agencies about their relationship, and are recognised as a couple by friends and family. In addition, the parties provided consistent evidence at hearing about their meeting, the progression of their relationship, their living arrangements and social engagements including the arrangements in relation to [Ms A] and their commitment to one another. They also demonstrated a knowledge of each other (the applicant was able to spontaneously recite the sponsor’s mobile phone number at hearing) that is consistent with a genuine relationship. The Tribunal is also satisfied that the parties' families and friends, are all genuinely supportive of the relationship.

2. While the Tribunal has considered all of the evidence on the Department’s file including the evidence subject to s.375A, on the basis of all the evidence before it, including the evidence relating to the financial, the nature of the household, the social aspects and the parties commitment to one another, the Tribunal is satisfied that at the time of application and decision the parties have a mutual commitment to a shared life to the exclusion of others; that they have a genuine and continuing relationship; and live together on a permanent basis and do not live separately and permanently apart. Based on the above the Tribunal is satisfied that the requirements of s.5F(2) are met at the time the visa application was made and at the time of this decision.

1. Therefore the applicant meets cl.820.221(1)(a) and cl.820.221(1).

2. 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

1. 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 820.211(2)(a) of Schedule 2 to the Regulations

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

Angela Cranston
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).

1. 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.

2. 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).