Alfajora (Migration)

[2024] AATA 2803

Alfajora (Migration) [2024] AATA 2803 (24 July 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Anne Dyemelle Arban Alfajora

REPRESENTATIVE:  Mr Andreas Martano (: 0317320)

CASE NUMBER:  2211130

HOME AFFAIRS REFERENCE(S):          BCC2021/1036474

MEMBER:David Barker

DATE:24 July 2024

PLACE OF DECISION:  Sydney

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(a) of Schedule 2 to the Regulations

·cl 820.221 of Schedule 2 to the Regulations

Statement made on 24 July 2024 at 11:55am

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa, Subclass 820 (Partner) – genuine and continuing relationship – validly married – financial, household and social aspects of relationship and nature of commitment – relatively young with moderate income – sponsor the main financial provider – newborn child – clear, direct further information, written submissions and documentation – decision made without hearing necessary – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5F(2), 65, 360(2)(a)
Migration Regulations 1994 (Cth), r 1.15A(3), Schedule 2, cl 820.211(2)(a), 820.221

CASE
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 Home Affairs to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 5 May 2021 on the basis of her relationship with her 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 (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.

3. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy applicant met cl 820.211 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). This was because the delegate was not satisfied that there was sufficient evidence to demonstrate that the applicant was the ‘spouse’ or de facto partner of the sponsor, as defined under section 5F or 5CB of the Act.

4. The applicant seeks review of the delegate’s decision. She was represented in relation to the review.

5. The applicant provided further information to the Tribunal in support of her claims in August 2023, November 2023, January 2024, June 2024 and July 2024. The information filed with the Tribunal between August 2023 and July 2024 pertained to the financial, social, commitment and household aspects of the applicant’s relationship with her sponsor, including evidence of the birth of a child from the relationship at the Royal Hospital for Women, Randwick, NSW in April 2024.  

6. The evidence and declarations filed with the Tribunal strongly supported the applicant’s claims. The information and contentions in the applicant’s submissions were clear, directed to the issues that required determination and were supported by, or referred to, evidence provided or already provided.

7. In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the applicant on the basis of the material before it, pursuant to s 360(2)(a) of the Act.

8. For the following reasons, I have concluded that the matter should be remitted for reconsideration.

   BACKGROUND

9. The applicant is a citizen of the Philippines and is currently 24 years old. The sponsor is of Indonesian heritage and is an Australia citizen by grant. He is  also currently 24 years old.

10. The applicant and sponsor (hereafter when discussed jointly referred to as the parties) parties claimed that they met on 15 March 2020 in Engadine, NSW and subsequently committed to a shared life together to the exclusion of others on 25 April 2020. They were married in  Marsden Park, NSW in March 2021.

11. The delegate explains in their decision record, a copy of which was provided with the review application, that there was insufficient evidence upon which it could be demonstrated that the applicant was the spouse or de facto partner of the sponsor, as defined under section 5F and 5CB of the Act. The delegate found that the applicant did not meet required criteria for the grant of the visa, namely cl 820.211 and cl 820.221.

    RELEVANT LAW

12. 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 (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.

13. 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. In the present case the applicant claims to be the spouse of the sponsor who is an Australian citizen.

14. ‘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).

15. 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.

    CONSIDERATION OF CLAIMS AND EVIDENCE

16. The issue in the present case is whether the applicant was the spouse of her sponsor at the time of the application and whether she continues to be so at the time of this decision.

    Are the parties validly married?

17. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. The Department file contains a copy of a marriage certificate issued by NSW Births, Deaths and marriages which states the parties were married in Marsden Park, NSW on 25 March 2021. The tribunal has no reason to doubt the authenticity of this document. 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?

18. In considering the prescribed aspects of the parties’ relationship, I note that there is a considerable body of evidence before the Tribunal that was not available to the delegate at the time of their decision.

    Financial aspects of the relationship

19. I have 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; and any sharing of day-to-day household expenses.

20. In the material before the tribunal there is no evidence of  the joint ownership of assets, or joint liabilities or of specific legal obligations owed by the applicant or sponsor to the other party. The material field by the applicant includes an extract of a superannuation policy in which she and the child of the parties’ relationship are identified as beneficiaries. However there is no indication whose policy it is or which superannuation provider the policy is held with. As a consequence the Tribunal does not consider it is able to place weight on this document.

21. In written submissions filed by the applicant with the tribunal she indicates that the sponsor is the main financial provider for the parties and their child. The applicant explains that this is because he has secure fulltime employment as opposed to occasional work she gets as a ‘nanny.’ She notes this is particularly case since she became pregnant with their child. The parties have a joint bank account, however the applicant contends this is not in frequent use as the parties mainly meet their regular expenses from the sponsor’s individual account.  The Tribunal has reviewed transaction statements from an individual account held by the sponsor with the Westpac Bank. It is apparent that the sponsor’s employment income is deposited into this account, along with Centrelink Family Allowance payments. There is also indication that rent and other expenses such as groceries, pharmacy purchases, transport costs and other regular expenses are paid from this account. The Tribunal is satisfied this evidence supports the applicant’s claims with respect to the financial aspects of the parties’ relationship. The Tribunal is satisfied that there is evidence of the pooling of financial resources  and sharing of day-to-day household expenses

22. I am satisfied the parties’ claims with respect to this factor are consistent with the documentary evidence filed with the Tribunal. Whilst the parties do not have significant shared assets or liabilities, I do not view anything untoward in this given the parties do not have high income and are  still relatively young. I find that the financial aspects of the relationship support a finding that the parties have a mutual commitment to a shared life together.   I have given weight to this aspect of the parties’ relationship.

    The nature of the household arrangements

23. I have considered the nature of the household, including: any joint responsibility for the care and support of children; the parties' living arrangements; and any sharing of housework.

24. The parties share joint responsibility for the care and support of  a child, born April 2024.

25. The material filed with the tribunal includes a residential tenancy agreement made on 30 March 2021 for a property leased by the parties in Bankstown. This agreement pertained to a period from April 2021 to October 2021. Also in the material field with the tribunal tenancy receipts indicating the payment of rent by the parties for a property in Bondi Junction. These tenancy receipts  cover periods in June and July 2024. A variety of correspondence including bank statements, bills, Centrelink and medical documents were provided that show both parties have received mail at these addresses.

26. In written submissions the applicant  states the parties share their responsibilities equally, with both cooking meals and sharing cleaning and other household tasks, albeit with eh applicant taking more responsibility for these tasks since  she became a housewife and stay at home mum. The applicant contends that the parties share responsibility and care for their child.

27. In considering the nature of the parties’ household arrangements, I am satisfied the  submissions regarding the parties living arrangements are plausible and supported by the evidence. I am satisfied that the nature of the parties’ household arrangements supports a finding that they have a mutual commitment to a shared life together. I have given weight to this aspect of the parties’ relationship.

    The social aspects of the relationship

28. I have considered the social aspects of the relationship, including whether the parties represent themselves to other people as being in a spousal relationship with 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.

29. The parties have provided the Tribunal with numerous photographs  taken in a variety of locations, indoors and outside, and show them with relatives and their child.

30. Provided in association with the visa application were Form 888 witness declarations from Mr Anthony Chaseling, dated 4 May 2021, and Mr Jackson Howley, dated 5 May 2021. Both of these declarants attest to the genuine nature of the parties’ relationship and indicate that they have interacted socially with the applicant and sponsor upon numerous occasions. Whilst brief and to the point, the Tribunal considers the declarants have provided a reasonable basis for their views about the parties’ relationship circumstances.

31. On the basis of the evidence relevant to this relationship aspect, which is before the Tribunal, I am satisfied  that the parties represent themselves as a couple in a genuine and continuing relationship and that their relationship status is recognised by their friends and relatives. I am satisfied that social aspects of the parties relationship support a finding that they have a mutual commitment to a shared life together. I have given weight to this aspect of the parties’ relationship.

    The nature of the parties’ commitment to each other

32. I have considered the nature of persons' commitment to each other, including: the duration of the relationship; the length of time they have lived together; the degree of companionship and emotional support they draw from each other; and whether they see the relationship as long-term.

33. The parties have now been married for over three years. The material before the tribunal indicates they have cohabited throughout this period.

34. There is a child from the relationship, born in April 2024. They have provided a copy of the child’s birth certificate, naming them as her parents, and a variety of photographs since the child’s birth showing one or both of them with her.

35. In submissions filed by the applicant she describes the companionship and emotional support within the parties’ relationship. She makes reference to shared interests and of the commitment the parties have to their child and their mutual wish to have a larger family. The Tribunal is satisfied these contentions are reasonably explained and plausible.  

36. I find that the parties married in March 2021  and that they have cohabited since that date.  I find that the relationship of the applicant and sponsor can appropriately regarded as long term. I am satisfied the emotional support and companionship derived from their relationship and their shared parenting of the child of the relationship, which is declared submissions is  consistent with the evidence and associated narrative that the applicant has provided about her relationship with the sponsor. I am satisfied the parties view their relationship as long term and have given weight to this factor and as well the duration of both the relationship and the period in which the parties have now lived together.

    Overall assessment of the spouse relationship 

37. I consider the evidence as to financial and social aspects of the parties’ relationship, and the nature of their household arrangements are all indicative of a couple in a spousal relationship. I am also satisfied the evidence now before the Tribunal demonstrates applicant  and sponsor had a strong commitment to each other and their spousal relationship around the time of application in May 2021 and at the time  of this decision.

38. On the evidence, I am satisfied that the parties have a mutual commitment to a shared life to the exclusion of all others, that the relationship is genuine and continuing, and the couple live together, and do not live separately and apart on a permanent basis: s.5F(2)(a)-(d).

39. On the basis of the above I am satisfied that the requirements of s 5F(2) are met at the time the visa application was made and the time of this decision.

40. Therefore, the applicant meets cl 820.211(2)(a) and 820.221(1)(a).

41. The Tribunal is satisfied that the applicant was at the time of application and at the present time sponsored by her spouse. The applicant’s sponsor has turned 18 years of age and therefore satisfies the criteria in cl.820.211(2)(c). At the time of application, the applicant held a substantive visa and so the criteria in cl.820.211(2)(d) is not relevant.

42. Therefore the applicant meets cl 820.221.

43. 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

44. The Tribunal remits the application for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 820 visa:

    ·cl 820.211(a) of Schedule 2 to the Regulations

    ·cl 820.221 of Schedule 2 to the Regulations

    David Barker
    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).