2118274 (Migration)

[2023] AATA 2190

2118274 (Migration) [2023] AATA 2190 (5 January 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2118274

MEMBER:Ann Duffield

DATE:5 January 2023

PLACE OF DECISION:  Canberra

DECISION:The Tribunal remits the application for a Partner (Migrant) (Class BC) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 100 (Partner) visa:

·cl 100.221(2) of Schedule 2 to the Regulations

Statement made on 05 January 2023 at 11:13am

CATCHWORDS
MIGRATION – Partner (Migrant) (Class BC) visa – Subclass 100 (Partner) – genuine and continuing relationship – validly married – interim family violence order against applicant discontinued after undertakings by applicant – relationship ceased and sponsorship withdrawn before reconciliation and birth of child – financial, household and social aspects of relationship and nature of commitment – applicant financially dependent on sponsor – initial difficulties with life in Australia and step-children before counselling – remorse, responsibility and change of behaviour – relationships with each other’s family but no wide social network – largely consistent and credible evidence – supporting statements from family and friends – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5F(2), 65
Migration Regulations 1994 (Cth), Schedule 2, cl 100.221(2)(b), (2A)

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 Home Affairs on 15 November 2021 to refuse to grant the visa applicant a Partner (Migrant) (Class BC) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 30 August 2020 on the basis of her relationship with her sponsor. At that time, Class BC contained one subclass: Subclass 100 (Partner).

3. The criteria for the grant of a Subclass 100 visa are set out in Part 100 of Schedule 2 to the Migration Regulations 1994 (Cth) (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.

4. The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy cl 100.221 because the delegate was not satisfied that the parties remained in a ongoing relationship and they had made no claims to indicate that they met any of the exceptions.

5. The applicant appeared before the Tribunal on 5 January 2023 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor. The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu and English languages.

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

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The issue in the present case is whether the parties remain in an ongoing spousal relationship as required by the Migration Act.

BACKGROUND

1. The applicant is a citizen of Pakistan and is [Age] years old.

2. The sponsor is an Australian citizen and is [Age] years old. He arrived in Australia in September 2009 on a partner visa and acquired Australian citizenship in November 2015. He has declared three previous marriages. The first marriage was from November 2011 to [June] 2017. There are two children from this marriage [who] live with the sponsor. The second marriage was short-lived from [July] 2017 to [November] 2018. The sponsor had attempted to sponsor his second wife to Australia but withdrew that application as the relationship ended. His final marriage was even shorter-lived from [January] 2019 to [June] 2019.

3. The parties were introduced to each other by the applicant’s sister who is living in Australia, and they first spoke in around October 2019.  They were married by proxy [in] June 2020 and the applicant arrived in Australia [in] April 2021. This was the first time the parties met face-to-face. [In] May 2021 the sponsor took out an interim Family Violence Order against the applicant in relation to the sponsor and his two children. In a letter to the department withdrawing his sponsorship, the sponsor stated that he feared for his and his children’s safety as she has abused and threatened them and made verbal threats against his family who reside in Pakistan. He claimed that since her arrival in Australia the month prior, his children were traumatised by her abusive behaviour, and she threated his family with death.

4. [In] July 2021 that order was discontinued on the basis of undertakings made by the applicant in relation to her behaviour towards the sponsor and his children. The applicant undertook not to engage in behaviour that constitutes family violence.

5. The sponsor wrote to the department on 2 June 2021 informing them that the relationship with his wife had ceased and he withdrew his sponsorship. On 11 October the department wrote to the applicant seeking her comments on the breakdown of her marriage. They received no response and on 15 November 2021 the delegate refused the application for the subclass 100 visa.

6. On 24 February 2022 the applicant wrote to the Tribunal responding to the department’s decision to refuse the application. She states that at the time the department requested further information for her she was living with her sister and did not receive the letter. She states that she and the sponsor have reconciled and are living together. She is attending regular counselling for her mental health issues and at the time of writing her submission she was pregnant with the sponsor’s child. Their child was born on [Date].

7. The sponsor also wrote to the Tribunal expressing his regret at acting prematurely in withdrawing the sponsorship of the applicant. He states that their problems have been resolved and they are happy together. He states that he is a devoted husband to the applicant and committed to addressing her mental health issues. They are happy together as a family and will be welcoming their own child in [Month].

Whether the parties are in a spouse or de facto relationship

1. Clause 100.221 requires that the applicant meet one of five alternative requirements. These include cl 100.221(2) and (2A) which require, among other things, that at the time of this decision, the applicant is the spouse or de facto partner of the ‘sponsoring partner’. Unless the applicant was granted a Subclass 309 visa by Ministerial intervention, the ‘sponsoring partner’ is the person who was specified as the applicant’s spouse or de facto partner or intended spouse or de facto partner in the related Subclass 309 application, being an Australian citizen, permanent resident or eligible New Zealand citizen.

2. In the present case the applicant claims to be the spouse of the sponsor, a ‘sponsoring partner’ within the meaning of that term.

3. ‘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 parties’ 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) are effectively questions which must be answered: He v MIBP [2017] FCAFC 206.

Are the parties validly married?

1. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. The parties were married online by proxy in June 2020. There is a copy of their marriage certificate on the Tribunal’s and the department’s file. On the evidence, the parties were married to each other under a marriage that is valid for the purposes of the Act as required by s 5F(2)(a). 

Are the other requirements for a spouse relationship met?

1. The Tribunal found the parties’ evidence at the hearing to be largely consistent, credible and honest. The Tribunal is satisfied that the parties remain in an ongoing and genuine spousal relationship for the following reasons.

2. The Tribunal has considered the financial aspects of the relationship – including joint ownership of assets; joint liabilities; extent of pooling of financial resources; any legal obligations owed to the other party; any sharing of day-to-day household expenses.

3. The applicant told the Tribunal that the sponsor works at [Workplace] but did not know how much he earned. Neither did she know how much rent was paid or other household expenses. She said that she did not ask him about these matters as he paid for everything and gave her $150 a week as “pocket money”. She also received $75 a week in Family Tax Benefits. The Tribunal put to her that it was concerned that she appeared entirely dependent upon the sponsor for her movements and her spending. She said that she was content with the way they organised their lives for the time being. She had plans to get a driver’s licence and work when the baby was older.

4. When asked by the Tribunal to discuss his financial situation he declined to do so. He said that he was uncomfortable talking about financial matters in front of the applicant. The Tribunal suggested that his unwillingness to share with his wife their joint financial position was concerning as it indicated that he had sole financial control of the family’s income. He said he felt it was his role to provide for the family and he paid for everything, and the applicant got whatever she needed as well as some money to spend on whatever she wanted. He said that they were both satisfied with this arrangement which would change when she started work.

5. After the hearing the sponsor provided the Tribunal with bank statements supporting the claims in relation to the couple’s financial arrangements.

6. The Tribunal notes that the couple have only been residing together in Australia for some two and a half years and recently had a baby. There are three children in the household now and the sponsor is the sole income-earner. In these circumstances, and given the evidence before it, the Tribunal accepts that there has been little, if no opportunity for the parties to have joint assets or liabilities. Their financial arrangement is not uncommon and having weighed all the evidence the Tribunal is satisfied that the financial aspects of the couple’s relationship supports a finding that they have a mutual commitment to a shared life together to the exclusion of all others.

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

8. The couple have recently had a child [together]. Their household is arranged so that the applicant is a homemaker with responsibility for the children and housekeeping and the sponsor is the income earner. Both told the Tribunal that this arrangement was mutually satisfying particularly with a new baby in the home. The applicant started a Certificate III in [Subject] but put that aside when she was pregnant. She said that she wanted to work at some stage as she is university educated and wants to contribute. The applicant is supportive of his wife’s continuing education and hopes that she will return to the workforce when the baby is older.

9. The applicant moved in with the sponsor at his rented, three-bedroom home which he has lived in for around three years. She is not on the lease and her name does not appear on any of the bills relating to the house. She also does not have a driver’s licence or other documentation that puts her at his address except for her bank statements and Medicare. The couple explained that this is because they are continuing with existing arrangements and, in any case, the applicant does not have her own income.

10. The applicant walks the two older children to school and takes care of their day-to-day needs. The Tribunal explored with both parties the reason for the DVO that the sponsor took out against the applicant in June 2021, particularly regarding the children. The applicant explained that she found it difficult to adjust to a new life in Australia. She said that everything was different, including the way that things were done and the way in which children were disciplined and treated. She said that the children only spoke English and she didn’t understand what they were saying to her, and this was upsetting and frustrating. Asked specifically what she did to prompt the sponsor to take out a DVO against her, she said that she slapped the children.

11. The sponsor told the Tribunal that he didn’t know what else to do except take out a DVO. In hindsight he admits to acting prematurely and rashly. He said he didn’t want to argue or fight with her. He said that over the following two months when the applicant went to stay with her sister, their respective families mediated a reconciliation and a way back into the marriage. They agreed to counselling and the applicant was counselled about Australian cultural practices and laws. They both told the Tribunal that they were committed to remaining in the marriage, that they loved each other and wanted to stay together. They both rejected advice to end the marriage.

12. The applicant showed genuine remorse and regret about her actions and both parties told the Tribunal that her relationship with the children now was excellent, and she considered them to be her own. With a new baby in the house, they felt like a family and were very happy together.

13. It is of concern to the Tribunal that the sponsor felt the need to take out an AVO against the applicant. The Tribunal accepts that the applicant would have been confused and at a loss to make sense of Australian cultural norms, behaviours, and laws and that her behaviour towards the children was a consequence of that rather than a result of any malice or intent to harm the children. She quickly took responsibility, showed genuine remorse and changed her behaviour. The Tribunal accepts that both parties were genuinely committed to continuing their marriage and this was demonstrated by the work they put into the reconciliation and their refusal to take advice to file for divorce. They now have a child together and the Tribunal is satisfied that the nature of the couple’s household supports a finding that they have a long-term commitment to their marriage and that they continue to live together.

14. The Tribunal has considered the social aspects of the relationship – including whether parties represent themselves to other people as being married to each other; the opinion of friends and acquaintances about the nature of the relationship; and any basis on which the persons plan and undertake joint social activities.

15. The couple have developed strong relationships with each other’s families but there is little indication of a wide social network or them undertaking any social activity together or with others. This is understandable given a limited income and three children to look after. There are, however, a number of statutory declarations and statements from friends and family attesting to the fact that the marriage is accepted and that the couple present themselves as married. There are also a number of photographs of the couple’s wedding, showing large number of family and friends gathered in celebration. The Tribunal does put some weight on the fact that even though the marriage was conducted by proxy, their respective families joined together and nevertheless celebrated as if both parties were present.

16. The Tribunal is satisfied that the social aspects of the parties’ relationship supports a finding that they are in a genuine and ongoing spousal relationship that is recognised by family and friends.

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

18. The Tribunal is mindful that the parties applied for a subclass 309 visa in August 2020 and secured that visa on 17 February 2021, indicating that the delegate was satisfied that they were in a genuine and ongoing spousal relationship at that time.

19. The parties were introduced by the applicant’s sister and spoke for the first time in around October 2019. They continued an online relationship which led to their marriage, by proxy, in June 2020. Their respective families had a significant role to play in mediating the relationship between them and were very happy when they both decided to marry.

20. The Tribunal asked the couple why they did not wait until they met face-to-face to marry, suggesting that a proxy marriage seemed unnecessary and rash, particularly given the sponsor’s past experience. The Tribunal put to them that the sponsor had two recent failed marriages which lasted only several months each and this might ordinarily indicate that some caution be taken with any subsequent relationships and marriages. The Tribunal asked the applicant whether or not she had any concerns about the sponsor’s short-lived previous marriages or whether she might, equally, find herself divorced in a short period of time.

21. The applicant said that she knew about his previous marriages but did not pry about the reasons for their breakdowns. She said that she did not want to wait to get married as there were so many unpredictable variables relating to COVID lockdowns and closed borders. She said that she fell in love with him and could not see any point in not being married as soon as possible as they both just wanted to be together.

22. The sponsor reflected the applicant’s views and added that he had the children and a job and could not leave Australia to go to Pakistan to marry as it was difficult to know if he would be able to travel or return when he wanted to. He said that the proxy marriage was wonderful, and their families got together to celebrate and joined them online. He said that the ceremony in Pakistan went on for a couple of days.

23. The Tribunal questioned the sponsor about his commitment to the marriage with the applicant and he said that he was absolutely committed and unlike his previous wives, he and the applicant loved each other and were “on the same page”. Asked to expand upon what that meant, he told the Tribunal that he and the applicant had the same expectations of what a life together would look like and function, she was smart and educated and was a good mother. She made him happy.

24. The couple’s plans for the future include purchasing their own home here in Australia and eventually, if possible, to purchase a home in Islamabad so that they can stay there when they returned to visit their families which both hoped would be quite often. Whilst the applicant would like more children the sponsor is more cautious, saying that he wants to be more financially stable.

25. Given some of the circumstances of the couple’s relationship, the Tribunal put its concerns to the couple separately and together at the hearing. The Tribunal is satisfied that their responses to those concerns support a finding that they have a long-term commitment to a shared life together as husband and wife.

1. Given these findings the Tribunal is satisfied that the requirements of s 5F(2) are met at the time of this decision.

2. Therefore, the applicant meets cl 100.221(2)(b).

3. The applicant is the holder of a Subclass 309 visa that she applied for in August 2020 therefore the applicant also meets cl.100.221(2)(a) and cl.100.221(2)(c).

4. 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 100 visa.

DECISION

1. The Tribunal remits the application for a Partner (Migrant) (Class BC) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 100 (Partner) visa:

   ·cl 100.221(2) of Schedule 2 to the Regulations

Ann Duffield
Senior Member

Attachment  - Extract from Migration Regulations 1994

1.15ASpouse

1. For subsection 5F (3) of the Act, this regulation sets out arrangements for the purpose of determining whether 1 or more of the conditions in paragraphs 5F (2) (a), (b), (c) and (d) of the Act exist.

2. If the Minister is considering an application for:

   (a)a Partner (Migrant) (Class BC) visa; or

   (b)a Partner (Provisional) (Class UF) visa; or

   (c)a Partner (Residence) (Class BS) visa; or

   (d)a Partner (Temporary) (Class UK) visa;

   the Minister must consider all of the circumstances of the relationship, including the matters set out in subregulation (3).

3. The matters for subregulation (2) are:

   (a)the financial aspects of the relationship, including:

   (i)       any joint ownership of real estate or other major assets; and

   (ii)      any joint liabilities; and

   (iii)     the extent of any pooling of financial resources, especially in relation to major financial commitments; and

   (iv)    whether one person in the relationship owes any legal obligation in respect of the other; and

   (v)     the basis of any sharing of day‑to‑day household expenses; and

   (b)the nature of the household, including:

   (i)       any joint responsibility for the care and support of children; and

   (ii)      the living arrangements of the persons; and

   (iii)     any sharing of the responsibility for housework; and

   (c)the social aspects of the relationship, including:

   (i)       whether the persons represent themselves to other people as being married to each other; and

   (ii)      the opinion of the persons’ friends and acquaintances about the nature of the relationship; and

   (iii)     any basis on which the persons plan and undertake joint social activities; and

   (d)the nature of the persons’ commitment to each other, including:

   (i)       the duration of the relationship; and

   (ii)      the length of time during which the persons have lived together; and

   (iii)     the degree of companionship and emotional support that the persons draw from each other; and

   (iv)    whether the persons see the relationship as a long‑term one.

4. If the Minister is considering an application for a visa of a class other than a class mentioned in subregulation (2), the Minister may consider any of the circumstances mentioned in subregulation (3).