Ahmed (Migration)

[2020] AATA 2506

Ahmed (Migration) [2020] AATA 2506 (22 April 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Yousuf Ahmed

CASE NUMBER:  1724259

HOME AFFAIRS REFERENCE(S):          BCC2015/2656970

MEMBER:John Longo

DATE:22 April 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Partner (Temporary) (Class UK) visa, with the direction that the applicant meets the following criteria for a Subclass 820 (Partner) visa:

·cl.820.211(2) of Schedule 2 to the Regulations; and

·cl.820.221(1)(a) of Schedule 2 to the Regulations.

Statement made on 22 April 2020 at 11:38am

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – genuine spousal relationship – financial aspects – joint financial responsibility – nature of household – shared household responsibilities and living arrangements – social aspects – social and public recognition of relationship – nature of commitment – duration of relationship – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5F, 65
Migration Regulations 1994 (Cth), r 1.15A; Schedule 2, cls 820.211, 820.221

CASES
He v MIBP [2017] FCAFC 206

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 and Border Protection to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 11 September 2015 on the basis of his relationship with his sponsor. At that time, Class UK contained only one subclass: Subclass 820 (Partner). The criteria for the grant of this visa are set out in Part 820 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 made the decision on the basis that evidence did not satisfy cl.820.211(2) of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the applicant did not meet the definition of spouse under s.5F of the Act. Specifically, the delegate noted a lack of evidence of the pooling of resources and of shared household. The delegate also found that there was no documentary evidence to satisfy the social aspects of a relationship and the parties were not committed to a shared life.

4. The Tribunal decided to make a decision on the written evidence provided. Based on the information provided, the Tribunal has concluded that the matter should be remitted for reconsideration.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The primary criteria to be satisfied at the time of application are that the applicant is not the holder of a Subclass 771 (Transit) visa and that he meets one of the alternative requirements set out in cl.820.211(2), (5), (6), (7), (8) or (9): cl.820.211(1) of Schedule 2 to the Regulations.

7. The Tribunal has reviewed the applicant’s movement records, which also detail his visa status at various times. The Tribunal is satisfied that the applicant was not the holder of a Subclass 771 (Transit) visa at the time of application. Therefore, the Tribunal finds that cl.820.211(1)(a) is met.

8. The subclause relevant to the applicant’s circumstances is cl.820.211(2). The key issue for determination is whether, at the time of application on 11 September 2015, the applicant was the spouse of the sponsor. The Tribunal also considered, at the time of this decision, whether the applicant continues to be the spouse of the sponsor and meets the criteria in cl.820.221(1)(a) of Schedule 2 to the Regulations.

   Whether the parties are in a spouse or de facto relationship

9. Clauses 820.211(2)(a) and 820.221 require that, at the time the visa application was made and at the time of this decision, the applicant is the spouse or de facto partner of an Australian citizen or Australian permanent resident or an eligible New Zealand citizen. The applicant claims to be the spouse of the sponsor who is an Australian citizen. The Tribunal is satisfied, based on the evidence in the Department file, that the sponsor is an Australian citizen.

10. ‘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 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?

11. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. The applicant and the sponsor were married at Umma Centre, Doncaster East, on 8 March 2015. A copy of the parties’ Certificate of Marriage has been provided to the Tribunal. 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?

    Consideration of the r.1.15A(3) factors

12. In assessing the issues in r.1.15A(3), the Tribunal has had regard to all documents on the Department’s and the Tribunal’s files.

    The financial aspects of the relationship

13. Any joint ownership of real estate or other major assets, any joint liabilities, the extent of any pooling of financial resources, whether one person in the relationship owes any legal obligation in respect of the other and the basis of any sharing of day-to-day household expenses are relevant factors to consider when assessing the financial aspects of the relationship. The Tribunal is satisfied that the applicant and sponsor jointly own household furniture items but have no other joint assets.

14. The applicant and the sponsor provided written evidence about the financial aspects of their relationship. The Tribunal notes that they have a joint bank account. The Tribunal notes that they have resided at the same property since 9 March 2015, after their marriage on 8 March 2015. The Tribunal notes the evidence provided by the real estate agent for the property which confirms that they are joint tenants for the property. They have also provided wills which leave their respective estates to each other and the sponsor has nominated the applicant as the beneficiary of her superannuation. In addition, the Tribunal notes that the applicant and sponsor provided evidence of joint utilities which they stated in their statutory declarations that they have been paying jointly. The Tribunal finds that the applicant and sponsor have joint liability towards the rental property and associated utilities. There is no evidence before the Tribunal which indicates that the applicant or sponsor owes any legal obligation in respect of the other.

15. There is evidence of the joint payment of these expenses, which include rent, utilities and household costs. The Tribunal notes that the applicant and sponsor submitted minimal documentary evidence in support of these claims at the time of the application and the sharing of expenses. The Tribunal is not troubled by the lack of documentary evidence as it might be in another case. This is because the Tribunal found the totality of the parties’ evidence to be credible and accepts this evidence of joint financial responsibility both at the time of the application and at the time of this decision. Accordingly, the Tribunal finds that, at both the time of application and at the time of this decision, the applicant and the sponsor pooled and continue to pool their financial resources and they shared and continue to share their day-to-day household expenses. The Tribunal gives some considerable positive weight to the evidence of the financial aspects of the relationship.

    The nature of the household

16. Any joint responsibility for the care and support of children, the living arrangements of the persons and any sharing of the responsibility for housework are relevant matters to be considered when assessing the nature of the household. There is no evidence before the Tribunal that the parties have children and the Tribunal is satisfied that they are not jointly responsible for the care of any children.

17. In relation to the living arrangements, the Tribunal notes that the applicant and sponsor reside together, both at the time of the application and currently. The evidence indicates that, at the time of the application, they were living in Hadfield and continue to do so. The evidence regarding the household is consistently stated throughout the application for the visa: The applicant stated that the sponsor manages the majority of the household tasks as she is working part-time and has more time available while the applicant runs a mechanical business but assists with folding the washing and vacuuming when he is able to do so.  Prior to the establishment of the business, the applicant and sponsor state that they shared the household chores.

18. Accordingly, the Tribunal finds that, at both the time of application and at the time of this decision, the applicant and the sponsor have shared household responsibilities and living arrangements. The Tribunal also accepts the parties’ consistent evidence about the division of household chores and tasks. The Tribunal gives great weight to the evidence of the nature of the household.

    The social aspects of the relationship

19. Whether the persons represent themselves to other people as being married to each other, the opinion of the persons’ friends and acquaintances about the nature of the relationship and any basis on which the persons plan and undertake joint social activities are relevant matters to be considered in determining the social aspects of the relationship.

20. There is evidence before the Tribunal that, both at the time of the application and at the time of the Tribunal’s decision, the applicant and the sponsor were continuing to represent themselves to other people as being married to each other. The Tribunal notes that the applicant provided some form 888 statutory declarations to the Department in support of his application. Subsequent to the application, the applicant and sponsor provided multiple new form 888 statutory declarations in support of the application. All of the applications discuss the applicant and sponsor’s inception of their relationship and their ongoing social interaction with friends. These declarations provide consistent views of the genuineness of the relationship.

21. In addition, the Tribunal also notes the photographs that were submitted from the applicant and sponsor’s interstate trips, celebrating their wedding and social outings. The photographs also depict the parties socialising with family and friends. They have provided further information showing trips overseas and interstate, also on some occasions with friends, and other documents which exhibit their presentation to other people and organisations as being married to each other.

22. The applicant and the sponsor gave consistent written evidence about the social aspects of their relationship. They gave particular evidence of their joint social activities such as cycling, attending soccer matches and their religious involvement. In light of the evidence before the Tribunal, the Tribunal finds that there is social and public recognition of the relationship. The Tribunal places great weight on the evidence of their social relationship.

    The nature of the persons’ commitment to each other

23. The duration of the relationship, the length of time during which the persons have lived together, the degree of companionship and emotional support that the persons draw from each other, and whether the persons see their relationship as long term are all aspects to be considered in determining the nature of the persons’ commitment to each other.

24. The Tribunal notes that the applicant and the sponsor made statements which are on the Tribunal’s file. The parties gave a detailed account of the inception and development of their relationship. The evidence before the Tribunal is that the parties have been in an exclusive and committed relationship for over five years, having first met in 2014. The Tribunal gives weight to the evidence of the duration of the relationship as well as the length of time the persons have lived together, which based on their written evidence, has been since 2014.

25. The Tribunal notes their statements that they have a strong and committed relationship and support each other and that they wish to be lifelong partners. They have plans for their future together and provide each other mutual support in relation to their work, travel and their future plans, including buying a home together. Their friends, and the applicant’s family, have shared in these plans and the statements provided also demonstrate their discussion of their mutual commitment and their shared future.

26. The Tribunal took into account the consistent evidence of the applicant and sponsor that they see their relationship as being a long-term relationship and their reasons for holding this view, including their mutual financial plans and ongoing shared life and support of each other. The Tribunal accepts that these factors are indicative of their genuine commitment to the relationship. In light of all the evidence before the Tribunal, the Tribunal finds that the parties see their relationship as long term.

27. The Tribunal is satisfied, considering all of the documentary evidence cumulatively, that the parties have demonstrated and continue to demonstrate a level of commitment to one another and to their spousal relationship as contemplated in the Regulations. The Tribunal places great weight on the evidence of the nature of each person’s commitment to the other.

    CONCLUSION

28. As stated above, the Tribunal is satisfied that the parties are validly married, as required by s.5F(2)(a) of the Act.

29. After considering all the evidence before it and for the reasons given with respect to the r.1.15A(3) matters, the Tribunal is satisfied both, at the time of the application and at the time of the decision, that the applicant and the sponsor:

    ·had a mutual commitment to a shared life as husband and wife to the exclusion of all others, as required by s.5F(2)(b) of the Act;

    ·had a genuine and continuing relationship, as required by s.5F(2)(c) of the Act; and

    ·live together and not separately and apart on a permanent basis.

30. Given these findings, the Tribunal is satisfied that the requirements of s.5F(2) were met at the time of the application.

    Time of application and time of decision requirements

31. The sponsorship requirements in cl.820.211(2)(a)(ii) and cl.820.211(2)(c) must also be satisfied, and, if the applicant was not the holder of a substantive visa at the time of application, then the requirements in cl.820.211(2)(d) must also be satisfied.

32. Mrs Ahmed completed a sponsorship for a partner to migrate to Australia form as the applicant’s partner and sponsor. The form declares that she accepts responsibility for the applicant, and will continue to do so, in accordance with the requirements under r.1.20(2) of the Regulations. Accordingly, the Tribunal is satisfied that the applicant is sponsored by Mrs Ahmed and that cl.820.211(2)(c)(i) is met. The Tribunal also finds that Mrs Ahmed is not prohibited by cl.820.211(2B) from being a sponsoring partner. Accordingly, the Tribunal also finds that cl.820.211(2)(a)(ii) is met.

33. The applicant’s movement records evidence him as having entered Australia on a Student (Class TU) Subclass 572 visa on 26 March 2013. He held this substantive visa upon applying for the Partner (Temporary) (Class UK) Subclass 820 visa on 11 September 2015. As the applicant held a substantive visa at the time of application, the further requirements in cl.820.211(2)(d) need not be met. The Tribunal finds that the applicant meets the time of application requirements in cl.820.211(1) as he meets the requirements in cl.820.211(1)(a) and (b), the latter on the basis of meeting all the requirements in cl.820.211(2).

34. However, the requirements in cl.820.221(1)(a) must also be satisfied, if the Tribunal is to determine that the applicant continues to meet the requirements at the time of the decision. The Tribunal finds that, at the time of this decision, and based on the findings of fact discussed in these reasons above, the applicant continues to meet the time of application requirements in cl.820.211(2) at the time of decision.

35. 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 820 visa.

    DECISION

36. The Tribunal remits the application for a Partner (Temporary) (Class UK) visa, with the direction that the applicant meets the following criteria for a Subclass 820 (Partner) visa:

    ·cl.820.211(2) of Schedule 2 to the Regulations; and

    ·cl.820.221(1)(a) of Schedule 2 to the Regulations.

    John Longo
    Member

    
    

    ATTACHMENT – Extract from Migration Regulations 1994

    1.15A     Spouse

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

    (2)If the Minister is considering an application for:

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

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

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

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

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

    (3)The matters for subregulation (2) are:

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

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

    (ii)      any joint liabilities; and

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

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

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

    (b)the nature of the household, including:

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

    (ii)      the living arrangements of the persons; and

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

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

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

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

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

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

    (i)       the duration of the relationship; and

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

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

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

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