1913872 (Migration)

[2022] AATA 385

1913872 (Migration) [2022] AATA 385 (20 January 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:1913872

MEMBER:P. Maishman

DATE:20 January 2022

PLACE OF DECISION:  Perth

DECISION:The Tribunal remits the application for a Partner (Residence) (Class BS) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 801 (Partner) visa:

·cl.801.221(2) of Schedule 2 to the Regulations.

Statement made on 20 January 2022 at 3:01pm

CATCHWORDS

MIGRATION – Partner (Residence) (Class BS) visa – Subclass 801 (Partner) – genuine and continuing relationship – sponsorship withdrawn and re-submitted – resumed marriage relationship after separation – second religious marriage – arrangements for household expenses and responsibilities – shared family and social events – determination to reconcile – decision under review remitted           

LEGISLATION

Migration Act 1958, ss 5F, 65, 359C, 360, 363A
Migration Regulations 1994, r 1.15; Schedule 2, cl 801.221

CASES

Hasran v MIAC [2010] FCAFC 40
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 Immigration on 21 May 2019 to refuse to grant the applicant a Partner (Residence) (Class BS) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 9 November 2015 on the basis of his relationship with his sponsor, [named]. At that time, Class BS contained only one subclass: Subclass 801 (Partner). The criteria for the grant of this visa are set out in Part 801 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 applicant did not satisfy cl  801.221(6)(b) because the delegate was not satisfied [the applicant] was the spouse of [the sponsor] prior to the relationship ceasing.  

4. On 16 June 2021 the Tribunal wrote to [the applicant] pursuant to s 359(2) of the Act, inviting him to provide information about exceptions to the requirement that he continue to meet the ongoing relationship requirement in writing.

5. The invitation was sent to the last address provided in connection with the review and advised that, if the information was not provided in writing by 30 June 2021, the Tribunal may make a decision on the review without taking further steps to obtain the information and he would lose any entitlement he might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

6. [The applicant] provided information on 11 August 2021 and not within the prescribed period and no extension had been granted. In these circumstances, s 359C applies and pursuant to s 360(3) [the applicant] is not entitled to appear before the Tribunal. The effect of s 363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear: Hasran v MIAC [2010] FCAFC 40.

7. Having regard to the information received from [the applicant] prior to making its decision, the Tribunal considered it appropriate to conduct an interview with him and the [the sponsor].

8. [The applicant] appeared by video before the Tribunal on 3 November 2021 to participate in the interview. The Tribunal also received oral evidence from [the sponsor].  

9. [The applicant] was represented in relation to the review by his registered migration agent.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. The Tribunal had before a copy of the Department’s file.

12. [The applicant] gave the Tribunal a copy of the delegate’s decision record. The delegate outlines [the applicant’s] visa history. [The applicant] arrived in Australia as the holder of a Subclass T0 300 visa [in] August 2015 and, following his marriage to [the sponsor], was granted a Subclass 820 visa on 9 February 2016. On 1 September 2018 [the sponsor] informed the Department her relationship with [the applicant] had ceased and she withdrew her sponsorship.

13. [The applicant] gave the Tribunal additional documents including the parties statutory declarations made on 5 and 6 August 2021; a letter from [Imam A] dated [in] July 2021; photographs of the couple together; a statutory declarations from [Ms B] and [Mr C] dated 8 November 2021; a new sponsorship form submitted by [the sponsor] on 7 November 2021; a residential tenancy application form in joint names dated 27 October 2021; copies of their individual bank account statements between July 2021 and November 2021; their individual telephone records from July to September 2021; and a number of photographs and social media screenshots.

14. [The applicant] and [the sponsor] took an affirmation to tell the truth and spoke to the Tribunal separately. The Tribunal questioned them individually about their relationship history, the development of their relationship, their knowledge of each other’s background and family relationships, the financial social and household aspects of their relationship and the nature of their commitment to each other. [The applicant] and [the sponsor] spoke in a thoughtful and authentic manner. Their answers were sufficiently different that the Tribunal is satisfied that their responses were authentic from their respective knowledge rather than rehearsed. The Tribunal also questioned them jointly and observed their interaction with one another. The Tribunal observed they clearly had a close and cooperative relationship as expected from people in a genuine relationship. The Tribunal found the applicant and sponsor to be credible witnesses and attributes significant weight to their oral evidence on that basis.

15. In summary the parties described their relationship as having commenced in December 2012 and to be continuing. Cultural differences caused irritation and friction, with [the applicant] having grown to adult hood in Somalia and [the sponsor] having left Somalia when she was four years old. [The sponsor] suffered a number of miscarriages she found difficult to deal with emotionally and she was grieving. [The sponsor] felt [the applicant] didn’t understand what was going on with her and they stopped being able to communicate. They grew apart and separated. In time they re-established their relationship, commenced communicating properly and resumed their marriage relationship.

16. The issue in the present case is whether [the applicant] is the spouse of [the sponsor].

    Whether the parties are in a spouse or de facto relationship

17. Relevantly to this matter, cl.801.221(2)(c) requires that at the time of this decision, the applicant is the spouse of the ‘sponsoring partner’, who must be an Australian citizen or Australian permanent resident or an eligible New Zealand citizen who was specified in the related Subclass 820 visa application as the spouse or de facto partner of the applicant. In the present case [the applicant] claims to be the spouse of [the sponsor] who is an Australian citizen and was identified in the Subclass 820 visa application. On the evidence before it, the Tribunal is satisfied [the sponsor] is the ‘sponsoring partner’ of the applicant.

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 sponsor’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. A Victorian Marriage certificate, certified by the Registrar of Birth’s, Death and Marriages, supports [the applicant] and [the sponsor] registered their marriage in October 2015. [The applicant] told the Tribunal they commenced a Muslim divorce in November 2018 but that was not completed so they were able to reconcile their marriage. A letter dated [in] July 2021 from [Imam A] acknowledges the [the applicant] and [the sponsor] reconciled after separating for a time. He officiated at their second marriage [in] June 2021. The parties did not register their divorce and there is no evidence to suggest the marriage is not valid. 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 had regard to the matters in r.1.15A(3).

21. The Tribunal considered the evidence of 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.

22. The parties do not claim to have joint ownership of assets, joint liabilities, or any legal obligations owed to each other. They no longer have a joint bank account and retain their individual bank accounts. They have discussed reopening a joint bank account and having [the applicant] included on the residential lease but social isolation restrictions caused by the Covid 19 pandemic have hindered their ability to attend to these. [The sponsor] is the lessee for the premises in which they live and [the applicant] pays the full monthly rent amount to her bank account to pass it on to the landlord. The parties’ information about the payment of bills and day-to-day living expenses such as groceries was consistent. [The sponsor] does the shopping and [the applicant] transfers money to her as necessary. These transactions are confirmed by the parties current individual account statements.

23. The parties pool their financial resources and share their day-to-day living expenses. The Tribunal gives some weight to the financial aspects of [the applicant] and [the sponsor’s] relationship as indicative of a genuine spouse couple.

24. The Tribunal considered the evidence of the nature of [the applicant] and [the sponsor’s] household including any joint responsibility for care and support of children; their living arrangements; and any sharing of housework.

25. [The sponsor] has an adult child from a previous relationship. The parties do not have other  children for whom they have care and support responsibilities. They share a bedroom and living areas of their accomodation. [The sponsor] does most of the cooking and cleaning for the house but works on Saturday and Sunday when [the applicant] takes on the cleaning and cooking duties.

26. The nature of [the applicant] and [the sponsor’s] household is indicative of a couple in a genuine spouse relationship.

27. The Tribunal considered the social aspects of the relationship including whether the 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.

28. [The sponsor’s]’s niece, [Ms B] confirmed she has known the parties to be a couple for six years. She visits the house regularly and notes they both come to family events. [Mr C] declares he has known the parties to be a couple for about five years. He considers their relationship genuine and they show respect, love and affection for each other. A number of photographs show the parties together and they have provided a photo of themselves with other people after dinner.

29. The parties told the Tribunal they sometimes go for dinner with one another and with friends. Mostly they are restricted to their home because of Victorian lockdowns caused by the Covid 19 pandemic. Their friends and family consider them to be a couple notwithstanding the period lived apart.

30. The Tribunal is satisfied [the applicant] and [the sponsor] represent themselves to other people as being married to each other and their friends and families consider them to be in a genuine relationship. The social aspects of [the applicant] and [the sponsor’s] relationship are indicative of a couple in a genuine spouse relationship.

31. The Tribunal considered the nature of [the applicant] and [the sponsor’s] commitment to each other including the duration of their 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 Tribunal accepts that the parties have known each other since 2012 and were married in 2015.

33. [The applicant] denied their remarriage [in] June 2021 was contrived following the Tribunal’s request for information on 16 June 2021. [The applicant] said that they had slowly resumed their relationship following their breakup in late 2018. They resumed communicating with one another from about late 2019 and slowly rebuilt their trust and love for each other. By the second half of 2020 they both expected to reconcile their marriage but took things slowly. At the beginning of 2021 he obtained a well-paying job at [a remote location]. They planned to resettle in Perth which did not eventuate. He returned to Melbourne on 21 June 2021 and moved in to the premises in which [the sponsor] lived with her daughter. They met with [Imam A] a few days after his return and reaffirmed their marriage vows.

34. [The sponsor] also denied they had remarried solely for the purpose of convincing the Tribunal of their ongoing relationship. She says she had her own demons to deal with and they had a rough start dealing with pregnancy miscarriages. She says she took her grief out on [the applicant] which put additional strain on their relationship. She needed time for herself to grieve and heal. She always loved [the applicant] and knew they should be together. It took them a long time but they rebuilt their love for each other which is stronger than ever. They have spent a long time talking and listening to each other and have had some counselling. [The sponsor] says [the applicant] is the love of her life, her soulmate and her best friend. She said her daughter was reluctant to move to Perth which is why she did not follow [the applicant].

35. The Tribunal accepts the information given by the parties. The relationship has gone through a difficult period during which they lived separately while they sorted out issues between them. While there was little communication initially, they took their time and addressed the issues they had in their relationship. The Tribunal is satisfied their reconciliation and remarriage is genuine.

36. The parties have a long-standing relationship and, notwithstanding their separation, have lived together for a significant period. They offer each other a significant degree of companionship and emotional support as demonstrated by their determination to reconcile and remarry. The parties have discussed their future plans, including possibly starting a family together, and see their relationship as permanent.

37. The nature of [the applicant] and [the sponsor’s] commitment to each other is indicative of a couple in a genuine spouse relationship.

38. ­­­­­­­­­­­The Tribunal notes the concerns of the Department’s delegate. The Tribunal has had the opportunity to observe the interaction of the applicant and sponsor during the interview process. The parties presented as somewhat anxious, the interaction between them was natural and affectionate. The Tribunal was persuaded that the affection and comfort shown by the applicant and sponsor to one another were not confected for the Tribunal’s benefit. The Tribunal finds [the applicant] and [the sponsor] are credible witnesses and attributes weight to the natural affection and comfort provided by the parties to each other.

39. Having considered the matters contained in r.1.15A(3) individually and holistically the Tribunal finds that the applicant and sponsor have a mutual commitment to a shared life to the exclusion of others. Their relationship is genuine and continuing and they live together.

40. Given these findings the Tribunal is satisfied that the requirements of s.5F(2) are met at the time of this decision. Therefore the applicant meets cl.801.221(2)(c).

41. The Department’s file contains its notice to [the applicant] dated 9 February 2016 confirming he was granted a Subclass 820 visa. The Tribunal is satisfied [the applicant] is the holder of a Subclass 820 visa and meets the requirements of cl 801.221(2)(a).

42. To avoid any doubt, the Tribunal received a sponsorship form submitted to the Department on 7 November 2021 by [the sponsor] in support of [the applicant’s] application. The Tribunal is satisfied [the applicant] continues to be sponsored by [name], his sponsoring partner, and cl 801.221(2)(b)(i) is met.

43. The visa application was made on 9 November 2015. The Tribunal finds that at least two years has past since the application was made and cl 801.221(d) is met.

44. Accordingly, the requirements of cl 801.221(2) are met.   

45. 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 801 visa.

    DECISION

46. The Tribunal remits the application for a Partner (Residence) (Class BS) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 801 (Partner) visa:

    ·Cl 801.221(2) of Schedule 2 to the Regulations.

    P. Maishman
    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).