1924012 (Migration)

[2024] AATA 849

1924012 (MIGRATION) [2024] AATA 849 (6 MARCH 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Amrit Tewari (MARN: 1382952)

CASE NUMBER:  1924012

MEMBER:Glynis Bartley

DATE:6 March 2024

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Partner (Provisional) (Class UF) visa for reconsideration, with the direction that the 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 6 March 2024 at 9:26am

CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) –introduction by relatives/friends and development of relationship – validly married in home country – review applicant’s physical and cognitive impairments and disability support pension – limited financial and social aspects of relationship and nature of household while living in different countries – nature of commitment – regular contact, money transfers and review applicant’s recent travel – family and social recognition and support – sincere and generally consistent evidence – length of relationship, delay in processing, additional evidence and supporting statements – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5F, 65
Migration Regulations 1994 (Cth), r 1.15A; Schedule 2, cls 309.211, 309.221

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

ISSUE

1. The issue in this case is whether [the visa applicant] is the spouse of [the review applicant] as defined in s 5F of the Migration Act 1958 (the Act).

   APPLICATION FOR REVIEW

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

3. The visa applicant applied for the visa on 23 February 2018 on the basis of her relationship with her 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.

4. The delegate refused to grant the visa on 14 August 2019 on the basis that the visa applicant did not meet cl.309.211(2). The delegate observed that the visa applicant demonstrated limited knowledge about the review applicant during the Departmental interview. The delegate was not satisfied that the visa applicant was the spouse, as defined in s 5F of the Act, of the review applicant.

5. The review applicant applied to the Tribunal for review of the delegate’s decision on 28 August 2019.

6. The review applicant appeared before the Tribunal in person on 4 March 2024 to give evidence and present arguments. The Tribunal also received oral evidence in person from the review applicant’s sister, [Ms A], and by video from the visa applicant.

7. The review applicant was represented in relation to the review by his registered migration agent who attended the hearing.

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

   BACKGROUND

9. The visa applicant is a [age]-year-old citizen of Nepal. She has not declared any previous marriages or de facto relationships. The visa applicant’s parents and [sisters] live in Nepal. Her brother lives in [Country 1]. The visa applicant is not currently in the paid workforce, and she lives with her parents.

10. The review applicant is a [age]-year-old Australian citizen by grant. He was born in [Country 2] and sought refuge in Nepal with his family when he was around seven years old. The review applicant migrated with his family to Australia from Nepal in 2010 after being granted a refugee visa (Subclass XB 200). The review applicant has declared one previous marriage that ended in divorce. There were no children from that relationship. The review applicant sponsored his first wife to migrate to Australia. The review applicant’s father is deceased. His mother and [siblings] live in Australia. The review applicant is not in the paid workforce and receives a Centrelink disability support pension. He lives in Western Sydney with his brother, sister-in-law, mother and nieces and nephews in a home owned by his brother.

11. The review applicant and the visa applicant (the parties) stated in the application that they met online in 2017 and committed to marriage in July of that year. The review applicant travelled to Nepal [in] December 2017 and the parties were married the following day. The review applicant returned to Nepal for around six weeks [from] December 2023 [to] January 2024.

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. Prior to the hearing, the review applicant’s representative provided additional documents to the Tribunal including but not limited to the following: photographs and videos of the review applicant’s recent trip to Nepal, the review applicant’s travel itinerary, money transfer receipts and communication records between the parties.

13. In making my decision, I have had regard to the documents in the Department and Tribunal files and the oral evidence at the hearing. I was mindful that it has been around four and a half years since the delegate made his or her decision. I had the benefit of receiving additional evidence that was not available to the delegate. I was also able to speak directly to the parties and the review applicant’s sister at the hearing.

14. The parties gave generally consistent oral evidence regarding the circumstances in which they met, their living arrangements in Nepal and the nature of their relationship. While there were some discrepancies, I did not consider them to be material. The parties stated in the application that they met online. However, they were first introduced by the visa applicant’s relatives in Australia as they are friends with the review applicant’s brother. The review applicant sent the visa applicant a Facebook request following a suggestion by the visa applicant’s cousin.

15. During the hearing, the parties and the review applicant’s sister were open about the review applicant’s disabilities as a result of becoming seriously ill when he was a child living in a refugee camp in Nepal. As a consequence of a very high fever caused by an infection, the review applicant’s hearing and vision are impaired. He also has some problems with his balance, mobility, thinking and memory. The review applicant receives disability support pension in recognition of his disabilities, which he has been advised are lifelong.

16. The review applicant told me that he has never worked in the paid workforce and is not able to drive. Despite his hearing impairment, the review applicant was able to understand and respond to the Tribunal’s questions with minimal difficulty. Some questions needed to be repeated but he appeared to fully comprehend the proceedings and responded without significant delay. I did not consider that the review applicant was exaggerating or embellishing his evidence. On the contrary, he presented as sincere.

17. I had no reason to believe that the visa applicant’s oral evidence was unreliable. Her evidence was generally consistent with the documents submitted to support the application, as well as the oral evidence from the review applicant and the review applicant’s sister. The visa applicant answered the Tribunal’s questions directly and without hesitation.

18. The review applicant’s sister gave her oral evidence in an open and forthright manner. I considered her to be an honest witness and placed weight on her evidence.

    Whether the parties are in a spouse or de facto relationship

19. Clause 309.211(2) requires that, at the time the visa application was made, the visa applicant is the spouse or de facto partner of an Australian citizen or Australian permanent resident or an eligible New Zealand citizen. With limited exceptions that only apply in relation to a decision to grant or not grant a Subclass 309 visa made on or after 20 August 2022, the visa applicant must continue to be the spouse or de facto partner at the time of the Tribunal’s decision: cl.309.221. In the present case, the visa applicant claims to be the spouse of the review applicant who is an Australian citizen.

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

    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. There was no evidence before me to cast doubt on the validity of the parties’ marriage in Nepal on [date], and it was not disputed by the delegate. Consequently, in the absence of any evidence to the contrary, I find that 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 parties do not own any joint assets, have joint debts or owe legal obligations to one another. This is not unexpected given they live in different countries and have limited means.

23. The review applicant relies on a Centrelink income support payment and the visa applicant has no income of her own, so is dependent upon the review applicant to send her money each month to meet her daily needs. The visa applicant lives with her parents so does not need to pay for accommodation costs. She has worked as [an Occupation 1] at [a workplace] in the past, but that work is no longer available.

24. The parties gave consistent oral evidence that the review applicant has been transferring money to the visa applicant consistently throughout their marriage. He generally sends between AU$200 and AU$500 per month. This was supported by transfer receipts and copies of the visa applicant’s bank statements provided prior to the hearing. The review applicant spends that money on household items and medical care. The parties demonstrated a reasonable awareness of each other’s financial circumstances at the hearing. The visa applicant was aware that the review applicant is receiving disability support pension and the fortnightly amount of the payment.

25. I accepted that the parties have lived together for a total of around two months since their marriage in December 2017. They have not pooled their financial resources or shared day-to-day expenses because the visa applicant has no income.

26. I placed some weight on the evidence of regular money transfers and was satisfied that the financial aspects of the relationship are generally consistent with the parties being in a genuine and consistent spousal relationship.

    Nature of the household

27. I was satisfied that the parties have lived together in Nepal for around two months in total since their marriage. They generally stay with the visa applicant’s parents or siblings when the review applicant is in Nepal. Although the parties’ oral evidence regarding who undertakes the household chores was not entirely consistent, I did not consider this was significant. The review applicant acknowledged that the visa applicant does most of the cooking and cleaning when they are together, although he provides some assistance. There is no housework when they are staying in hotels. The visa applicant appeared to somewhat embellish the review applicant’s contribution to household chores. Alternatively, as the review applicant’s sister suggested, the review applicant may have been making an effort to impress his wife with his domestic skills while in Nepal.

28. The parties do not have any joint responsibility for the care and support of children.

29. I was satisfied on the basis of their oral evidence that they intend to establish a joint household in Sydney. I placed minimal weight on this aspect of the parties’ relationship given they live in different countries.

    Social aspects of the relationship

30. The parties were married in Nepal in December 2017 and the review applicant’s brother travelled from Australia to attend. The visa applicant’s parents, siblings and extended family members also attended. The parties provided photographs and videos of the review applicant’s recent trip to Nepal, which shows them with family and friends at a variety of social occasions, including a celebration held for their sixth wedding anniversary. I accepted the review applicant’s oral evidence that he has met all of the visa applicant’s family, including her brother who lives in [Country 1] as the brother attended the parties’ wedding.

31. Witness statutory declarations were provided to the Department from two people known to the parties. They are distant relatives of the visa applicant and friends with the review applicant. A reasonable amount of detail was provided in those declarations, and I placed some weight on that evidence.

32. The review applicant’s sister gave oral evidence at the hearing to support the application. Although she has not yet met the visa applicant in person, she speaks regularly with her by phone and video. The review applicant’s sister attested to the genuineness of the parties’ relationship and their ongoing commitment to one another, despite the extended delays involved in the processing the visa.

33. During the hearing, I asked the review applicant about various people shown in the photographs provided beforehand. He was able to clearly explain various extended family members from both sides, as well as other acquaintances shown in the photographs taken in Nepal.

34. The review applicant’s representative submitted a report by [Dr B], general practitioner, dated 10 February 2021, to support the application. [Dr B] said the review applicant is a long-term patient of the clinic. His medical history includes [Medical Condition 1], [Medical Condition 2] and profound hearing deficit. [Dr B] said given the review applicant’s medical ailments, a support person would make his life more bearable. Furthermore, the review applicant’s mental status would be greatly helped by having his partner to lean on during hard times.

35. A letter by [Mr C], president of [Organisation 1], dated 31 October 2022, was also provided. [Mr C] said the review applicant has been a member of the association since 2010. [Mr C] said the review applicant is living with a disability and receives a disability welfare payment from the Australian Government. He requires extended support and care for his health and wellbeing. The review applicant is married to the visa applicant, and he has been waiting a long time for the Tribunal to make a decision. The long waiting time has increased his level of trauma and stress, with a significant possibility of leading to long-term depression. Additionally, the review applicant’s ageing mother has also reported an increased level of mental stress and concerns over her health and the wellbeing of her son when she is unable to care for him. [Mr C] said he acknowledges the concerns of the review applicant’s mother as genuine and recommends that the processing of the visa applicant’s visa be advanced.

36. I was satisfied on the basis of the photographs, statutory declarations from witnesses, the supporting letters from the review applicant’s general practitioner and [Mr C], as well as the oral evidence at the hearing, that the parties hold themselves out to others in the community in both Australia and Nepal as being in a spousal relationship. Furthermore, the relationship is recognised and supported by their families. I find that the parties have participated in various social activities together in Nepal and was persuaded that they will continue to do so in Australia. 

37. The social aspects of the parties’ relationship support a finding that the parties are in a genuine and continuing spousal relationship.

    Nature of the persons’ commitment to each other

38. The parties have now been married for more than six years. I was mindful that they have spent only around two months together since their marriage. I accepted the consistent and compelling evidence that their limited time together was primarily due to the review applicant’s inability to travel independently to Nepal due to his disabilities. The COVID-19 pandemic restricted travel for an extended period and the review applicant has limited means as his only income is a disability support pension. He was able to travel to Nepal in late 2023 for around six weeks because a distant cousin was planning a trip and was able to accompany him.

39. The parties married the day after they first met in person. I accepted the review applicant’s explanation that they had been communicating with one another for an extended period and decided to marry around six months before he travelled to Nepal for the wedding. The review applicant felt that he knew the visa applicant well before he proposed to her.

40. I was satisfied that the parties have maintained regular contact during periods that they are apart by telephone and various electronic means. They demonstrated a good understanding of each other’s living arrangements and families, including the names and personal circumstances of parents and siblings.

41. The visa applicant was aware of the review applicant’s disabilities and support needs. She impressed as genuine in her desire to provide him with care and assistance once they are reunited. The review applicant told me that he has applied for funding under the National Disability Insurance Scheme, but his claim has not yet been determined. He is unable to drive due to his disabilities. The review applicant’s family is keen for the visa applicant to migrate to Australia as soon as possible as they are confident that she will be able to provide him with additional care and support.

42. Both parties insisted during the hearing that their relationship was genuine rather than “fake”. They expressed frustration regarding the delays in processing the visa and the impact on their ability to build their shared life together. The visa applicant said she is subject to gossip because in Nepalese culture, a wife is expected to live with her husband. The society is conservative, and others form a bad impression when a married couple live apart. The visa applicant told me that she gets upset when she sees other couples together.

43. The parties gave generally consistent oral evidence regarding their plans for the future, including for them to live together in Western Sydney with the review applicant’s brother, sister-in-law, mother and his nieces and nephews. They would like to have children together in the near future. While the parties’ oral evidence regarding how many children they would like to have and whether they have been trying to conceive was not entirely consistent, I was satisfied that there may have been some confusion on the review applicant’s part due to his hearing impairment. The parties’ desire to have children together impressed me as sincere. Their evidence regarding their plans to have children was corroborated by the review applicant’s sister, who said the parties are committed to each other and are keen to start a family as soon as possible. The visa applicant expressed concern about her age and ability to conceive due to the delays in the appeal process.

1. I was satisfied that the parties provide one another with emotional support and companionship. They presented as determined to maintain their relationship and establish a joint household, despite the substantial obstacles and delays they have faced since their marriage.

2. I was satisfied that the parties have a long-term commitment to each other. This provides weight to support of a finding of a genuine and continuing relationship.

   Conclusions

3. Given the above findings, I was satisfied that at the time of the visa application and at the time of this decision the parties were in, and continue to be in, a genuine and continuing relationship and have a mutual commitment to a shared life as husband and wife to the exclusion of all others. They have lived together for brief periods in Nepal and intend to resume that arrangement in Australia. Therefore, they do not live separately and apart on a permanent basis.

4. I was 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. Therefore, the visa applicant meets cl.309.211 and cl.309.221.

5. 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

6. The Tribunal remits the application for a Partner (Provisional) (Class UF) visa for reconsideration, with the direction that the 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

   Glynis Bartley
   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).