1834673 (Migration)

[2022] AATA 4187

1834673 (Migration) [2022] AATA 4187 (2 August 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Ms Carina Ford (MARN: 9802862)

CASE NUMBER:  1834673

MEMBER:Ann Duffield

DATE:2 August 2022

PLACE OF DECISION:  Canberra

DECISION:The Tribunal remits the applications for Partner (Provisional) (Class UF) visas for reconsideration, with the direction that the first named visa applicant meets the following criteria for a Subclass 309 (Partner (Provisional)) visa:

·cl.309.211 of Schedule 2 to the Regulations

·cl.309.221 of Schedule 2 to the Regulations

Statement made on 04 August 2022 at 10:35am

CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – genuine and continuing relationship – validly married in home country – limited household, financial and social aspects of relationship while living in different countries and with border closures – regular communication, money transfers and two visits – nature of commitment and future plans – largely consistent and persuasive evidence – member of family unit – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5F, 65, 378
Migration Regulations 1994 (Cth), Schedule 2, cls 309.211, 309.221

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 Immigration on 13 November 2018 to refuse to grant the visa applicants Partner (Provisional) (Class UF) visas under s.65 of the Migration Act 1958 (the Act).

2. The first named visa applicant (the visa applicant) applied for the visa on 27 March 2018 on the basis of their relationship with their sponsor, the review applicant. At that time, Class UF contained only one subclass: Subclass 309 (Partner (Provisional). The criteria for the grant of this visa are set out in Part 309 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.

3. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.309.211 because they were not satisfied that the applicant was the spouse of the sponsor within the meaning of s.5F the Migration Act.

4. The review applicant appeared before the Tribunal on 1 August 2022 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant.

5. The review applicant was represented in relation to the review and they participated in the hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is whether the review applicant is the spouse of the visa applicant within the meaning of the Migration Act.

   BACKGROUND

8. The parties provided the Tribunal with a copy of the delegate’s decision. There is a s.376 certificate on the department’s file covering Folio 61 which relates to some deliberations of the Department. The Tribunal discussed this matter with the review applicant’s representative at the hearing. The Tribunal informed the parties of the material contained in the document and that it would not rely on it to inform its decision.

9. The visa applicant is a citizen of Nepal born on [Date] ([Age] years old). The secondary applicant is his son, born on [Date]. According to his application he was previously married to [Ms A] [in] February 2012. She is the mother of the secondary applicant. She died in an earthquake in Nepal [in] April 2015. A translated copy of her death certificate is on the department’s file at Folio 39 but the original document does not appear to be on the Tribunal or the department file.

10. The review applicant is a citizen of Australia born on [Date]. She arrived on a spouse visa [in] November 2008. That marriage ended in divorce [in] October 2016. A copy of her divorce certificate is at Folio 21 of the Department’s file. She married the review applicant in Nepal [in] September 2017. A copy of their translated marriage certificate is also on the department’s file at folio 33 of the Department’s file.

11. The applicants claimed to have first met in 2012 but it was not until after his first wife died that they formed a relationship. They committed to a relationship together in early 2017 and married in September 2017 in Nepal.

12. The review applicant has declared in a correction to previous information provided (Folio 20 of the Department’s file), that she has travelled to Nepal on the following dates:

    a.Depart [November] 2009 return [January] 2012

    b.Depart [October] 2012 return [November] 2017

    c.Depart [September] 2017 return [November] 2017

13. The Tribunal put this information to the review applicant for clarification. She stated only (c) was correct. She arrived in Australia 2009 and visited again in 2012, 2017 and 2021.  The review applicant’s movement record confirms these travel times.

14. In a submission to the Tribunal at the hearing the applicants, through their representative made some remarks about the interview conducted with the Department. The interview was conducted in Hindi which is not the first language of either applicant and is not a language in which either is fluent. They submit that they had difficulty understanding the questions put to them by the department or answering them in Hindi.

15. The transcript of those interviews on the department’s file indicates brief conversations between the delegate and the applicants. It is also noted that the decision to refuse the application was made without providing the applicants with an opportunity to provide further information. They submit that the inconsistencies arising from the interview should be given limited weight by the Tribunal. The Tribunal has been mindful of these submissions in the consideration of the claims and evidence.

    Tribunal Hearing

16. The Tribunal found the evidence of the applicant’s largely consistent and persuasive. For the reasons below the Tribunal accepts that they have a mutual commitment to a shared life together to the exclusion of all others and that the relationship between them is genuine and continuing. The Tribunal is satisfied that they intend to live together in a married relationship if the visa applicant comes to Australia.

    SPOUSE/DE FACTO (cl.309.211(2), cl.309.221)

    Whether the parties are in a spouse or de facto relationship

17. Clause 309.211(2) and 309.221 require that at the time the visa application was made, and at the time of this decision, the visa 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 visa applicant claims to be the spouse of the review applicant who is an Australian citizen as evidenced by her passport at Folio 18 of the Department’s file.

18. ‘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 visa applicant’s and review applicant’s 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?

19. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. The parties have provided a translated copy of their marriage certificate Folio 17 of 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).

    Are the other requirements for a spouse relationship met?

20. 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; any sharing of day-to-day household expenses.

21. There is evidence before the Tribunal that the review applicant has sent the visa applicant substantial funds that she stated were for general household expenses and the secondary applicant’s college fees. The visa applicant receives a small income from property transactions but otherwise relies on the review applicant to provide some financial support.  The visa applicant will sell his property in Kathmandu and bring the funds to Australia. They both said that they would use the funds to establish a [business] in [City 1] together. The review applicant herself has access to around $34,000 of savings that she also intends to invest in the [business].

22. The review applicant currently undertakes seasonal work around [City 1] and [Town], earning around $900 per week. Her permanent domicile is in [City 1] where she rents a house from her boss who lives in [City 2]. She often transfers amounts of AUD$200 and, on at least one occasion, AUD$3800. She also separately sends money to the secondary applicant for his own personal expenses. These funds are used to support both visa applicants and the review applicant sees themselves as a financially interdependent family unit.

23. The parties do not currently have any joint assets as they live in different countries, but the Tribunal is satisfied that they intend to pool their financial resources and establish a business together if the visa applicant is permitted to come to Australia. The Tribunal is satisfied that the financial aspects of the relationship supports a finding that they are committed to a shared life together to the exclusion of all others.

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

25. The parties have spent limited time together because of the impact of border closures, COVID and restricted travel opportunities. Nevertheless, since their marriage the review applicant has returned to Nepal on two occasions in March 2019 and November 2021 to January 2022.  The review applicant went to Nepal [in] September 2017 for her wedding and remained until late November 2017. During this time, they lived together as a married couple in the home of the visa applicant along with his son and niece, who had been assisting the visa applicant in caring for the secondary applicant. The review applicant also stayed with the visa applicant during her visits in 2019 and 2021. The Tribunal puts substantial weight on the review applicant’s travel to Nepal to stay with her husband. They submit that during their time together they share in household duties including cooking and spending time as a family. In the future, if the visa applicant is allowed to come to Australia, they both plan to work in their joint business and share household duties.

26. The review applicant submits that she and the secondary applicant have a solid relationship and she is mindful and sympathetic that he lost his mother when he was very young and cares for him. In his statement to the Tribunal the secondary applicant states that the review applicant sends him money and they have developed a strong bond and communicates daily with the review applicant. The review applicant and visa applicant have agreed that they will not have any other children and will focus on providing the secondary applicant with a good education (he is currently studying [Subject] in Kathmandu) and a good life.

27. The Tribunal is satisfied that the nature of the parties’ household supports a finding that they are committed to a shared life together to the exclusion of all others and that they have a genuine and continuing relationship.

28. Social aspects of the relationship – including whether parties represent themselves to other people as being married to 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.

29. The parties have provided the Tribunal with a number of photographs of themselves together and in social situations. They submit that their families are supportive of their marriage and they spend time together in family situations, mostly at their shared home in Nepal.

30. The Tribunal has been provided with a number of statutory declarations from friends and family, including the visa applicant’s son. These statements and the evidence before the tribunal support a finding that the parties are seen by others as a married couple, and they have a commitment to a shared life together and do not intend to live separately and apart on a permanent basis.

31. Nature of persons' commitment to each other – including duration of the relationship; the length of time they have lived together; degree of companionship and emotional support they draw from each other; and whether they see the relationship as long-term.

32. The parties gave consistent oral and written evidence about the inception and development of their relationship from the time they met, the decision to marry and their plans for their shared future. They have known each other since 2012 and been married since 2017. The parties have provided a sample of their electronic communications from 2018 to 2022 which demonstrates an ongoing, close relationship. The visa applicant told the Tribunal about the review applicant’s previous marriage and demonstrated an understanding of her difficulties. His account of their future plans and life together was consistent with that of the review applicant.

33. Despite their long separation, COVID and border closures, the review applicant has travelled to Nepal on two occasions in 2019 and 2021-2022 to spend time with her husband. The Tribunal gives this significant weight. The evidence before the Tribunal suggests that the parties rely on each other for financial, emotional and practical support and that they see themselves in a committed, long term relationship as a family unit.

34. On the basis of 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.

    CONCLUSION

35. Therefore the applicants meet cl.309.211 and cl.309.221.

    CONCLUSION

36. 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 309 visa.

    decision

37. The Tribunal remits the applications for Partner (Provisional) (Class UF) visas for reconsideration, with the direction that the first named visa applicant meets the following criteria for a Subclass 309 (Partner (Provisional)) visa:

    ·cl.309.211 of Schedule 2 to the Regulations

    ·cl.309.221 of Schedule 2 to the Regulations

    Ann Duffield
    Senior 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).