2102645 (Migration)

[2021] AATA 4778

2102645 (Migration) [2021] AATA 4778 (6 October 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2102645

MEMBER:Peter Vlahos

DATE:6 October 2021

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.309.211of Schedule 2 to the Regulations

·cl.309.221of Schedule 2 to the Regulations

This Statement was made on 6 October 2021 at 8.30AM

CATCHWORDS

MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner) – genuine and continuing relationship – validly married – financial, household and social aspects of relationship – long acquaintance while married to other spouses – divorce and death of spouses and establishment of relationship with brief visits, telephone calls and social media – limited joint life while in different countries – both parties employed and financially independent – nature of commitment – documentary and oral evidence and statements from family and friends – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), ss 5F(2)(a), 65

Migration Regulations 1994 (Cth), r 1.15A(3), Schedule 2, cls 309.211(2), 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

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 4 February 2021 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 7 August 2020 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 the couple were in a genuine spousal relationship.

4. The review applicant appeared before the Tribunal on 28 September 2021 to give evidence and present arguments. The entire hearing was conducted via a teleconference because of the ‘state of emergency’ having been declared in the state of Victoria due to the Covid-19 Pandemic crisis.  The Tribunal also received oral evidence (via the telephone) from [the visa applicant].

5. The review applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing (also via telephone).

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 couple are in a genuine spousal relationship as defined by s.5F of the Act.

   Whether the parties are in a spouse or de facto relationship

8. 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.

9. ‘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?

10. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. The parties’ signed the Marriage Certificate[1] [in] January 2020. The delegate determined that this was evidence of a valid marriage as does the Tribunal. On the evidence, the Tribunal therefore finds and concludes 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).

    [1] see AAT File for copy of Marriage Certificate signed by both parties. Also see in AAT File, the marriage certificate was registered [in] January 2020, Registration no. [Number 1].

    Are the other requirements for a spouse relationship met?

11. In forming an opinion whether they are in a spousal relationship, consideration must be given to all the circumstances of the relationship. This includes evidence of the financial and social aspects, 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 which is attached to this decision.

12. The applicant lodged a valid application for a Class UF Partner (Provisional) and BC Partner (Migrant) visa on 21 August 2020 on the grounds of being in a spousal relationship with an Australian Citizen.

13. [The review applicant] is a [Age] year[2] old male originally from the Former Yugoslavia (Serbia) but is now an Australian citizen[3]. He declared in his application for sponsorship that he was previously married three times. He married [Ms A] (DOB [Date 2]) [in] May 1985 and divorced her [in] October 1992. From this marriage the sponsor has one child who is an Australian citizen. He then married [Ms B] (DOB [Date]) [in] October 2003 and they divorced [in] May 2007. The sponsor stated to have one child from this marriage, however, in the application, he advised that his immediate family members are his daughter and two sons.

    [2] Date of Birth, of the review applicant – [Date].

    [3] see AAT File Certificate of Australian Citizenship Registration no. [Number 2] dated [October] 2003.

14. The sponsor (‘review applicant’) has not departed Australia since [October] 2008.

15. [The visa applicant] is a citizen of Serbia and is [Age] years of age.[4] The applicant (‘visa applicant’) was previously married to [Mr C] (DOB [Date]) a friend of the review applicant. This marriage was solemnised [in] March 1988 and ended in divorce [in] March 1996. From this marriage the applicant has two children (now adults). The applicant and her ex-spouse continued to live together until his death as he became very ill and the applicant provided care for the father of her children.

    [4] Ibid AAT File

16. The Tribunal has had the opportunity of observing material and evidence that was not provided to the delegate from the applicant. This information includes declarations of several third parties about the relationship, bank confirmations and statements of transaction, a confirmation of the applicant being a beneficiary of the sponsor’s planned will, utility bills and photographs of the parties at various social situations.

    Financial aspects of the relationship

17. The parties have provided written evidence and have provided an explanation in relation to their finances to the Tribunal.

18. The Tribunal noted that the delegate was not satisfied that the parties had provided sufficient evidence regarding the financial aspects of the relationship, including previous or ongoing pooling or financial resources or sharing of day-to-gay household expenses.

19. The review applicant told the Tribunal that he had sent some money to the applicant while she was in Serbia. He did confirm for the Tribunal that in the period 2019-2020 several remittances of approximately 500euro were sent to the applicant to assist her with her needs as she required at that time.

20. The Tribunal enquired of both applicants to explain their financial circumstances as a couple that had been married. The review applicant told the Tribunal that the applicant had ‘a very senior and responsible job’ with her [Employer] and was to a large extent ‘independent’ of a daily need to be provided with financial assistance but it was always there when required, needed and when requested. This aspect of relationship was acknowledged by the applicant in her evidence also. The applicant confirmed for the Tribunal that she worked for her [Employer] and was paid a sufficient wage which met her day-to-day needs. She also confirmed to the Tribunal the fact, that the applicant was always able and willing to aid her with money when she required it and did so on certain occasions. This assistance (from the sponsor), the applicant confirmed for the Tribunal amount to the applicant sending in 2019/2020 the amount of 550euro for her expenses. This amount was provided on a monthly basis according to the evidence of the parties to the Tribunal and was transferred via the offices of Western Union.[5]

    [5] see copies of financial assistance transfers of money via Western Union in the AAT File. Also see applicant’s Department of Home Affairs File no. [Number 3]

21. The Tribunal also noted that the parties’ had not established a joint-bank account in Australia. It is understood that the parties currently are residing in different countries and this requirement is difficult to be adhered to. However, it is noted from the evidence provided to the Tribunal that the parties had established a bank account in Serbia which they told the Tribunal is – and will be used in future to transfer money in order to purchase a residential property in their joint names. Overall, the parties had knowledge of each other’s employment and financial commitments and displayed a open and clear willingness to assist each other if the need surfaced and had done so. The visa applicant knew the details of the review applicant’s employment as an [Occupation] and the review applicant knew in detail his wife’s employment and economic circumstances in Serbia.

22. Currently, the two are living in different countries and both are employed and saving money for their joint and mutual future benefit. The visa applicant told the Tribunal that the sponsor had provided assistance to her ‘when she required it’ or was in ‘need’ of financial assistance and the Tribunal does not have doubts about this claim being not credible. The visa applicant presented as a person of truth when she described her personal situation as far as it concerned her personal finances. Neither party attempted to conceal the fact that the two work independently and tried to meet their own needs for the time they were separate but at the same time provided the Tribunal with the indication that their resolve was to be together with one purse in the immediate future. Indeed, the visa applicant was credible in her expression that she was willing to forego her career in Serbia and to live and support her husband. A significant sacrifice in personal and financial terms for the visa applicant is considered (and made) in favour of a life in Australia with the review applicant – her husband.

23. While separated – in different countries – the evidence before the Tribunal was that the parties would assist and did assist each other when requested or needed with money and the Tribunal does not doubt the truthfulness of this evidence. Both are also willing to sacrifice financial independence to assist each other also which is based on their commitment to their relationship with each other.

24. The Tribunal gives weight to the financial aspect of the relationship.

    Nature of the Household

25. The living arrangements of the persons are a relevant matter to be considered by the Tribunal in determining the nature of the household.

26. The delegate in his decision noted that the parties provided statements attesting to their relationship. In these statements, the delegate noted, that the parties established online contact via [Social media] in 2018. The delegate went on to note that the visa applicant applied for a visitor visa which allowed her to visit the review applicant in Australia – between [Date] January 2020 until [Date] January 2020. The delegate noted that the period between [Date] January 2020 to [Date] January 2020 was the only period the two spent time together and, in that period, [in] January 2020 the two married. The delegate was not convinced that this was evidence for determining that the parties had determined the nature of their household.

27. The Tribunal at the hearing asked both parties to provide an explanation as to how a brief period of time – one knowing the other had led to their marriage. The review applicant in his evidence told the Tribunal that he and the visa applicant – his (now) wife, knew each other for many years. He told the Tribunal that their homes were situated very close in the same village and that he was a friend of many years to the visa applicant’s late husband. In particular, both parties told the Tribunal that each knew the other since 1989 – both lived in the same town while in Serbia. However, their lives took different turns. The visa applicant married the review applicant’s friend and had a family, while the visa applicant left for Australia and married and carried on life there. In 2008, the review applicant returned to Serbia for a brief holiday and the friendships were rekindled between him and the visa applicant’s late husband.

28. Even after, these contacts continued over the phone and in particular, when the visa applicant divorced her husband. What followed according to the parties recollection to the Tribunal was indeed a tragedy. Her former husband was diagnosed with cancer and for the following decade or so, the visa applicant volunteered to act as his personal carer. The visa applicant explained that she chose to do this for her ‘former’ husband because ‘she considered it to be the right thing to do’ because ‘he was the father of her children’ regardless that her marriage and feelings for him had ceased with her divorce. This carer role continued for considerable period of time, according to the visa applicant and ended with her former husband’s death (in August 2016). In early 2018, the visa applicant’s children (now independently living away from home with families of their own) organised for the visa applicant to have her own [Social media] account. The [Social media] account was initially used by the visa applicant to keep in touch with children and grandchildren, the Tribunal was told. However, it was through this medium the parties rekindled their friendship.

29. The Tribunal was told by the parties that they renewed their friendship through this medium. Both shared their life’s experiences and problems on a regular basis and for long periods of time. Each, the Tribunal was told became very close to the other, even at distance and on-line. On sharing the experience of caring for a dying former husband and the other having suffered also failed marriages and having to assist a daughter suffering from severe psychological health issues. This sharing of their experiences, seeking each other’s advice on issues brought the two very close as friends to the point that the review applicant became very fond of the visa applicant to the point of establishing a relationship between them. It was during these many conversations that the review applicant asked the applicant to come to Australia to meet each other. The visa applicant agreed, and the ticket was purchased by the review applicant and so the trip came to Australia.

30. Once here in January 2020, the parties the Tribunal was told “hit it off” from day one. Both agreed with most matters about life and matters in general. More in particular, one and the other, had expressed an understanding and sympathy for each other life problems. The visa applicant for the review applicant’s hard work as [an Occupation] and also caring for his adult daughter with her mental illness and the review applicant with the life trials of the visa applicant caring for a former husband who was ill and then dying and supporting her children as a single mother. In one of those discussions, the review applicant now husband proposed marriage to the visa applicant – now his wife. The proposal was accepted and the two married [in] January 2020 a few days before the applicant was to leave for Serbia.

31. While in Australia, the two lived in the review applicant’s home and during this time the applicant was able to meet all of the family and friends of her husband. In particular, she came (according to her evidence) to know and understand the issues involving the health of her husband’s daughter. The Tribunal witnessed (from the evidence provided) a sincere display of empathy and understanding on the applicant’s part for the review applicant’s hard work and ability to care for his daughter and told the Tribunal that she was willing and ready to provide ‘[the review applicant] with the help for his daughter’ and knew well how to care with a person who had ‘special needs’. The Tribunal also read the statement of the review applicant’s daughter where she described in positive terms her father’s relationship with the visa applicant and looked forward to having her in her life. The review applicant also told the Tribunal that his wife has regular telephone conversations with his daughter which help her greatly in dealing with her health issues and anxieties.

32. The visa applicant told the Tribunal that she was willing now that her life had changed with her children ‘grown up’ and with ‘their own families’ to ‘get on with her life with [the review applicant]’ in Australia.

33. The sponsor’s evidence also described the household situation as the parties living together at the sponsor’s home until the applicant/wife left for Serbia.

34. The Tribunal gives regard to the evidence provided by the parties in light of the evidence they have provided of having been close and familiar with each other’s issues and concludes that the parties lived together at an address in Melbourne while both were together. The parties gave a consistent account of their daily life and routine in that review applicant’s home, which included their daily routines and household duties (when together) and described what each has shared with each other while being separated.

35. Moreover, the applicant/wife has made an application for a visa to travel to Australia since her marriage but because of the Covid-19 Pandemic had to be aborted due to the closure of Australia’s borders.[6]

    [6] see AAT File for details of visa applicant’s request to come to Australia again but refused by Australia due to Covid-19 Pandemic Emergency and the closure of Australia’s borders.

36. The Tribunal finds that the parties have lived in the sponsor’s home while the two were together in Australia (2020) and did so as a married couple.

37. It is not submitted that the parties have the care or guardianship of any children.

38. The Tribunal accepts the parties have lived at the sponsor’s home (all be it briefly), on or around the time of when they were married. Moreover, the Tribunal having received evidence from all parties accepts that the sponsor and applicant have every intention of maintaining their household as before the applicant left for Serbia in January 2020.

1. The Tribunal gives weight to this evidence.

   Social Aspects of the relationship

2. There is evidence of the parties representing themselves to others as being married to one another. The Tribunal noted evidence provided by the parties to the Department was as follows:

   • Statutory declaration (Form 888) by [Ms D], the applicant’s friend and hairdresser.
   • Statutory declaration (Form 888) by [Ms E], the applicant’s friend and

   Colleague.

   • Statutory declaration (Form 888) by [Mr F], the applicant and the sponsor’s

   Acquaintance.

   • Public notary certified statement given by the applicant’s son [Mr G]

3. While these statements according to the delegate did not state that the parties have spent time with the parties and did not take them into consideration.

4. The Tribunal understands the delegate’s hesitation at first instance. The Tribunal at the hearing was able to discuss matters more fully as far as it concerns the parties’ relationship and its acceptance by their friends and family members. Firstly, the Tribunal had before it in the parties person - two mature individuals who have lived the road of matrimony and as a result of it have established friends and their own social circles. Both have children who are adults. Both have married and divorced and now have remarried. They have been friends since 1989 and life has brought them together. The Tribunal was provided with a number of statements from friends and family which described their relationship as they had witnessed it. The review applicant’s daughter, [Ms H] having met her father’s friend and wife (in 2020 January) declared that her ‘father’ had “sincere deep feelings” for his wife. More to the point, the daughter describes the applicant’s “presence in our house would mean a lot to me because of family harmony and lots of help…” This adds to the credibility of the visa and review applicants’ evidence to the Tribunal, when they told the Tribunal that after the visa applicant had met [Ms H] (in January 2020) and continued her conversations with her on the phone (after she returned to Serbia) she had established a sincere bond with her and a bridge of assistance to her (independent of her husband) to which the review applicant’s daughter looks forward to accessing when needed.

5. The Tribunal was also referred to a Statutory declaration by the review applicant’s friend of twenty years (as he deposed) [Mr I]. Among other things he declares as follows:[7]

   “[The review applicant]’s daughter [Ms H] and I were witnesses when [the review applicant] and [the visa applicant] got married [in] January 2020 in Melbourne. Before and after the wedding, [the review applicant] was showing his wife Melbourne and they had some short trips.

   [The review applicant] is my friend. We know each other almost twenty years and he has talked about [the visa applicant] even before they started their relationship as they are from the same city and they know each other while they were in previous marriages. When they reconnected online, he sent her money for her ticket to come to Australia where they were spent New Year and Orthodox Christmas together….

   [The visa applicant] is a wonderful, warm lady with traditional values and you could see that during her stay with my friend and his daughter were very happy. They know each other since they were both living in [a small city] in Serbia.”

   [7] see AAT File, documents provided for scheduled hearing.

6. [Mr I] ends his declaration with the following assessment of the relationship:

   “When [the visa applicant]’s visa expired she had to go back to Serbia for work but with plans to organise her life for coming to Australia…. My friend [the review applicant] was devastated to see the refusal letter as they are a genuine couple and I would like to support that…”

7. Another statement provided and signed by a friend of the couple, [Ms J] said of the couple’s relationship as follows:[8]

   “My husband introduced me to [the review applicant] and [the visa applicant] in [City]. I know them for about 33 years…

   From the very beginning I know all about [their] friendship, and [later], about their emotional relationship between [the visa applicant] and [the review applicant]. The marriage concluded in Melbourne [01].2020 is a marriage of pure love, sincerity and great desire to spend their old age in Australia….

   The two of them have a lot of things in common, every day they are in contact on the internet…They find it difficult because they are apart because of the distance, of the time distance between Australia and Serbia, and especially because they are unable to join because of closed borders due to the Covid-19 Pandemic…”

   [8] Ibid

8. Similar declarations were provided by another two friends of the couple, [Mr K] and [Mrs L].[9] What can be observed by these declarations is that family and friends both in Australia and Serbia know of their longstanding friendship and of the relationship which resulted in their marriage in Australia in 2020. The applicant and her sponsor have provided credible evidence that friends are supportive of their marriage – and from the declarations before the Tribunal that is the case. The Tribunal gives weight to this evidence of friends who supported and approved of the relationship and the couple’s marriage. The Tribunal understands that the parties’ relationship was openly known to all. When the couple were together in Australia (even though for a brief time), joint social activities were undertaken. Even in Serbia, the relationship was also on display and known according to the evidence provided by the witnesses which the Tribunal accepts as describing the truth about the relationship. The Tribunal accepts the evidence as submitted that the parties’ relationship and intentions were known and acknowledged by their friends and family members.

   [9] Ibid AAT File.

9. The Tribunal finds there is social recognition of the marriage and gives weight to this aspect of the application.

   Nature of persons’ commitment to each other

10. The couple have known each other since 2018 closely and of each other since 1989 and they originate from the same city in Serbia and made a mutual decision to enter into a relationship very soon after their lives allowed them to do so. The sponsor being divorced, and the applicant having freed herself from commitments to family and towards an ill and dying former husband she felt obligated (because of her children) to act as his carer. The Tribunal accepts the parties’ account of how they reconnected with each other and how the relationship brought them to meet face to face in 2020 and to marry in Melbourne and to live briefly together – just before the visa applicant left for Serbia.

11. The Tribunal also accepts that the parties lived together tough briefly in January 2020 when the applicant visited the sponsor in Melbourne. The Tribunal also accepts that though separated, the parties still communicate closely on all aspects of their relationship daily. The Tribunal concedes that the relationship has had its challenges – (i) distance and (ii) the Covid-19 Pandemic in recent times – separating them for more than two years since their last meeting in Melbourne in 2020.

12. The parties have knowledge of each other’s families in Australia and Serbia and their respective families support their relationship and marriage.  

13. The couple support one another in their daily life and would continue to do when they are reunited in the immediate future. Their friends support them in their married life and they both have expressed a commitment to each other for life. The Tribunal finds that there is evidence of a long-term commitment to a spousal relationship. 

14. Having had regard to the financial aspects, the nature of the household, the social aspects and the nature of the persons’ commitment to each other, the Tribunal considers these findings together demonstrate that there is a mutual commitment to a shared life as husband and wife to the exclusion of all others, and that they show that the relationship is genuine and continuing. Therefore, the Tribunal have lived together and will live together in the immediate future. They therefore meet the requirements of s.5F for a spousal relationship.

15. Given these findings the Tribunal is satisfied that at the time the visa application was made and at the time of this decision the parties were in a spousal relationship.

16. 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 the time of this decision.

17. Therefore, the visa applicant meets cl.309.211 and cl. 309.221.

18. 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

19. 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:

20. 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.309.211of Schedule 2 to the Regulations

    ·cl.309.221of Schedule 2 to the Regulations

    Peter Vlahos
    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).