1930390 (Migration)

[2023] AATA 4074

1930390 (Migration) [2023] AATA 4074 (7 July 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1930390

MEMBER:Margie Bourke

DATE:7 July 2023

PLACE OF DECISION:  Melbourne

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 and cl.309.221 of Schedule 2 to the Regulations.

Statement made on 07 July 2023 at 5:45pm

CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – 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, 360
Migration Regulations 1994 (Cth), r 1.15A; Schedule 2, cls 309.211, 309.221

CASES
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 22 October 2019 to refuse to grant the visa applicant a Partner (Provisional) (Class UF) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 19 November 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. 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 the delegate was not satisfied there was sufficient evidence and information to demonstrate the applicant was the spouse of the sponsoring partner within the meaning of s.5F(2) of the Act at the time of application.

4. The Tribunal has considered the Department’s decision record dated 22 October 2019, the information provided by the visa applicant to the Department, and the extensive information provided by the review applicant and the visa applicant to the Tribunal. The Tribunal is satisfied, based on the information available to it, that it can make a decision favourable to the visa applicant without proceeding to a hearing, pursuant to s.360(2)(a) of the Act.

5. The following are the written reasons that the Tribunal has concluded that the matter should be remitted back to the Department for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

   Whether the parties are in a spouse or de facto relationship

6. 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.

7. ‘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?

8. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. Based on the registered marriage certificate, the Tribunal is satisfied that the parties were married in Vietnam on [date] February 2018, and the marriage was registered on [date] February 2018. 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).

   Information provided to the Tribunal

9. The Tribunal has considered the information in the Department’s decision record. The delegate noted that the review applicant and visa applicant met for the first time on 26 January 2018, that the review applicant proposed to the visa applicant on 30 January 2018, and that the parties married on [date] February 2018. The delegate recorded in the Department’s decision record there was some inconsistency in the information provided by the visa applicant, and the information declared in statutory declarations of the review applicant’s friends about whether these friends and the visa applicants had spoken via video chat. The delegate recorded that there was overall a lack of evidence about the spousal relationship between the review applicant and the visa applicant.

10. The review applicant subsequently provided the Tribunal with a detailed statutory declaration from the review applicant dated 27 April 2023, a detailed signed statement from the visa applicant dated 30 March 2023, five recent statutory declarations from the review applicant’s mother’s friend, the review applicant’s brother, the review applicant’s uncle, and two friends of the review applicant (although one of these statutory declarations was not dated when it was signed), a collection of untranslated documents that appear to be money transfers and receipts, a collection of documents of confirmation of travel including itineraries, boarding passes, bookings and hotel receipts and residence registration card of a foreigner for the review applicant, a large selection of photos, an extensive collection of communication records, money transfer records, and two medical reports in relation to the review applicant recording in handwriting the fact that he is married.

11. The Tribunal has carefully considered the information that the review applicant and visa applicant have provided.

12. The Tribunal is satisfied based on this information that the review applicant travelled to Vietnam for the original meeting and wedding, and returned to Vietnam from [date] April 2018 to [date] April 2018, from [date] February 2019 to [date] March 2019, from [date] January 2020 to [date] February 2020, and for a further two months from [date] August 2022.

13. The Tribunal is satisfied based on this information that the review applicant and visa applicant have represented themselves to be married to family and friends, and that in the opinion of those family and friends the marriage is genuine and the parties have a committed and supportive relationship. The Tribunal is satisfied that the review applicant is employed as a [Occupation 1], and provides ongoing financial support to the visa applicant in Vietnam. The Tribunal is satisfied that the review applicant and visa applicant have discussed fertility issues affecting the review applicant and made appropriate plans for having children together. The Tribunal is satisfied the review applicant and visa applicant have a thorough knowledge of each other’s lifestyles, preferences, worries and habits. The Tribunal is satisfied that the parties communicate on a daily basis through various means. The Tribunal is satisfied that the review applicant and visa applicant provide each other with support in relation to difficulties they have faced, including being separated for long periods particularly during the global pandemic.

    Are the other requirements for a spouse relationship met?

14. Financial aspects of the relationship: – the Tribunal is satisfied that the parties do not have any joint ownership of real estate or other major assets. The Tribunal is satisfied that the parties do not have any joint liabilities. The Tribunal is satisfied that the parties do not pool their financial resources in relation to major financial commitments, although the Tribunal finds that the review applicant has provided financial support to the visa applicant. There is no evidence before the Tribunal that one person in the relationship owes any legal obligation respect of the other. The Tribunal is satisfied that the parties shared day-to-day household expenses during the times the review applicant visited Vietnam and resided with the visa applicant.

15. The evidence of the financial aspects of the relationship is limited but indicates that the review applicant and the visa applicant are in a genuine and continuing relationship at both the time of application and at the time of decision.

16. The nature of the household: – the Tribunal is satisfied that the parties do not have any joint responsibility for the care and support of children, but the Tribunal accepts that the parties have discussed their own particular circumstances in relation to planning and conception of their children. The Tribunal is satisfied that the parties reside in separate countries and do not manage their own household, but accepts the living arrangements of the persons at the times that the review applicant has travelled to Vietnam after the marriage on [date] February 2018, and that the parties have resided together as a married couple. The Tribunal is satisfied that the review applicant and visa applicant resided together in Vietnam for 10 days after their marriage on [date] February 2018, for a further 12 days in April 2018, a further 30 days in February and March 2019, 25 days in January and February 2020, and a two month period in 2022. The Tribunal is satisfied the parties shared the responsibility for any housework during these times.

17. The evidence of the nature of the household is limited but indicates that the parties are in a genuine and continuing relationship, and that they live together, and not separately and apart, on a permanent basis, at both the time of application and at the time of decision.

18. The social aspects of the relationship: – the Tribunal is satisfied that the review applicant and visa applicant represent themselves to other people as being married to each other. The Tribunal is satisfied that the opinion of the persons’ friends, family and acquaintances is that their relationship is genuine, committed and supportive. The Tribunal is satisfied that the review applicant and visa applicant plan and undertake their joint social activities on the basis of when the review applicant can travel to Vietnam. When in Vietnam the Tribunal is satisfied that the parties travel together, and visit family and friends and spend time together. When not residing in the same country the Tribunal is satisfied that the parties communicate on a daily basis.

19. The evidence of the social aspects of the relationship indicates that the review applicant and the visa applicant have a mutual commitment to a shared life as a married couple to the exclusion of all others, are in a genuine and continuing relationship, and live together, and not separately and apart, on a permanent basis, at both the time of application and at the time of decision.

20. Nature of the persons’ commitment to each other: – the Tribunal is satisfied that the parties were married on [date] February 2018, and had been married for nine months at the time of application, and have been married for over 4 ½ years at the time of this decision. The Tribunal is satisfied that the parties had resided together for a total of 22 days at the time of application and have resided together for approximately 4 ½ months in total at the time of this decision. The Tribunal is satisfied that the review applicant and visa applicant provide companionship and emotional support to each other. The Tribunal is satisfied that the review applicant and the visa applicant see their relationship as a long-term relationship in which they plan to reside together and have a family together.

21. The evidence of the nature of the persons’ commitment to each other indicates that they have a mutual commitment to a shared life as a married couple to the exclusion of all others, that their relationship is genuine and continuing, and that they live together, and not separately and apart, on a permanent basis, at both the time of application and at the time of decision.

22. The Tribunal has considered the circumstances of the relationship between the visa applicant and the review applicant as set out in reg.1.15A(3). The Tribunal is satisfied that the review applicant and visa applicant have a mutual commitment to a shared life as a married couple to the exclusion of all others, that their relationship is genuine and continuing, and that they live together, and not separately and apart, on a permanent basis. The Tribunal finds that the relationship between the review applicant in the visa applicant meets the requirements of s.5F(2)(b), (c) and (d) at both the time of application and the time of decision.

23. 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.

24. Therefore the visa applicant meets the requirements of cl.309.211 and cl.309.221.

25. 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

26. 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 and cl.309.221 of Schedule 2 to the Regulations

    Margie Bourke
    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).