Alhenn (Migration)

[2021] AATA 807

Alhenn (Migration) [2021] AATA 807 (25 March 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr ShawQi Aspir Salim Alhenn

CASE NUMBER:  1730247

HOME AFFAIRS REFERENCE(S):          BCC2016/1236313

MEMBER:Russell Matheson

DATE:25 March 2021

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(2) of Schedule 2 to the Regulations; and

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

Statement made on 25 March 2021 at 10:56am

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – genuine spousal relationship – validly married in Australia – financial, household and social aspects of relationship – nature of commitment – documentary and photographic evidence and detailed, consistent oral evidence – 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

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 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 is a male national of Jordan born in January 1977. He applied for the visa on 18 March 2016 based on 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 refused to grant the visa on the basis that the visa applicant did not satisfy cl.820.211 because the delegate was not satisfied the applicant was the spouse of the sponsor. The applicant seeks review of the delegate’s decision

4. The applicant appeared before the Tribunal on 24 March 2021 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 Arabic and English languages.

5. The applicant was represented in relation to the review by his registered migration agent.

6. At the beginning of the hearing the Tribunal raised the issue of substantial compliance with the applicant. The Tribunal informed the applicant that he had lodged an application with the Tribunal for review of a Partner (Residence) (Class BS) (Subclass 801) visa refusal when in fact the delegate had refused his application for a Partner (Temporary) (Class UK) (Subclass 820) visa. The applicant informed the Tribunal that he wished the Tribunal to decide on his application for a Partner (Temporary) (Class UK) (Subclass 820) visa. 

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether the applicant is the spouse of the sponsor as defined in s.5F of the Act.

9. The Tribunal has before it the applicant’s file from the Department of Home Affairs (the Department); its own file; and a copy of the Department’s decision provided by the applicant to the Tribunal.

10. The evidence the parties provided at the Tribunal hearing is recorded throughout this decision record.

    Whether the parties are in a spouse or de facto relationship

11. 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.

12. ‘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 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?

13. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. The applicant provided a copy of the marriage certificate registered under the Marriage Act 1961 indicating the applicant and sponsor were married at Colyton, NSW, on 7 March 2016. There is no evidence before the Tribunal to indicate that the marriage is not valid. 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).

14. In forming an opinion as to whether they are in a marital relationship and in considering whether they have a mutual commitment to a shared life as husband and wife to the exclusion of all others, whether their relationship is genuine and continuing, and whether they live together and not separately and apart on a permanent basis as defined in s.5F(2)(b)-(d), the Tribunal has had regard to all the circumstances of the relationship. This includes evidence of the financial and social aspects of the relationship, the nature of the applicant’s and sponsor’s household and their commitment to each other as set out in r.1.15A(3).

15. After careful consideration of all the evidence before it, the Tribunal has reached the conclusion that it is satisfied the applicant is the spouse of the sponsor within the meaning of s.5F of the Act. Below, the Tribunal sets out its consideration of the evidence under the relevant aspects of matters it must take into consideration under r.1.15A(3), and the reasons for its decision.

16. The Tribunal had the benefit of the applicant’s and the sponsor’s oral evidence at the hearing and found their evidence to be detailed, consistent and overall, credible. The Tribunal gave all the evidence provided by the parties at the Tribunal hearing and evidence provided by the applicant to the Department and the Tribunal file due regard. The applicant provided a significant amount of additional documentary and photographic evidence to the Tribunal.

17. The Tribunal acknowledges the delegate’s concerns set out in the primary decision record. The Tribunal discussed these with the applicant and the sponsor during the hearing and the Tribunal is satisfied that the parties were genuine and credible witnesses. 

    Are the other requirements for a spouse relationship met?

    Financial aspects

18. The Tribunal has considered the financial aspects of the relationship including any joint ownership of real estate or major assets, any joint liabilities, the extent of any pooling or sharing of financial resources, especially in relation to major financial commitments, whether any person in the relationship owes any legal obligation in respect of the other and the basis of any sharing of daily household expenses.

19. The applicant and sponsor gave evidence that they have a joint account with the Commonwealth Bank Australia (CBA) which they opened in July 2016. The sponsor stated that she has her own personal account with the CBA and her Centrelink payments are made into that account and she transfers money into the joint account when required. She further stated the parties have a Gold Saver account with the CBA and are saving to make a deposit on a house. The applicant stated that he is working as a scaffolder and his wages are deposited into the joint account. The parties gave evidence that their joint account is utilised for day-to-day expenses, household bills and other daily requirements. The parties provided bank statements confirming the use of their joint account in the manner described. The parties presented their debit cards #9528 and #9266 linked to their joint account to the Tribunal. They also provided as evidence receipts for day- to-day expenses (grocery shopping) and household purchases (furniture) that they have made for each other using cash and their debit cards. Additionally, they provided evidence of listing each other as beneficiaries of each other’s superannuation.  

20. The parties gave evidence that they are living in a share arrangement with the sponsor’s mother, sister and brother. The sponsor’s mother provided a statutory declaration explaining the parties living arrangements, expense sharing with other family members and rental payments.  

21. Overall, the Tribunal finds that there is limited evidence before the Tribunal to demonstrate that the applicant and sponsor have pooled or shared their financial resources at the time of decision. The applicant and sponsor provided detailed evidence regarding their employment, rent, individual incomes and payment of household bills, pooling and sharing their financial resources and future financial plans.

22. There is no evidence before the Tribunal that the parties have any joint ownership of real estate, major assets, joint liabilities or any one person in the relationship owes any legal obligation in respect of the other. The applicant has provided limited information regarding the financial aspects of the parties’ relationship in relation to pooling and sharing financial resources or sharing daily living expenses. The Tribunal places some positive weight on this aspect of the relationship.

    Nature of the household

23. The Tribunal has considered the nature of the household, including any joint responsibility for the care and support of children, the living arrangements and daily routine of the parties and the sharing of the responsibility for housework, to form an opinion as to whether the parties are living together and not living separately and apart on a permanent basis.

24. As aforementioned, the applicant and sponsor have been living with the sponsor’s mother, sister and brother in a shared arrangement. The parties gave evidence that they share f rent, utility and other expenses associated with their boarding and lodgement at the property owned by the mother in Blacktown. They further stated that there is no formal arrangement with the sponsor’s mother such as a tenancy agreement. The parties provided some documentary evidence and correspondence addressed to them individually and joint names to the Blacktown address where they are residing.

25. The applicant and sponsor stated they share the household duties such as cleaning, cooking and other household maintenance. They further stated the applicant is responsible for repairing and maintenance of items around the house, mowing the lawn and other outdoor chores, picking up the laundry, sweeping, looking after the dog, washing the car and vacuuming. Additionally, the sponsor is responsible for cooking, dusting, cleaning the rooms, bathrooms and the kitchen. They also provided evidence as they live in a shared household, the duties are split between other family members. The parties provided evidence that they go shopping and make decisions on household items and finances together. They work as a cohesive team unit and always consult one another before making any large decisions. They also share the same bed every night and have done so since moving in together after their marriage.

26. The applicant and sponsor in their written submissions and oral evidence gave detailed and consistent evidence about their living arrangements and the Tribunal found them persuasive, genuine and credible. The Tribunal is satisfied that the parties live together. The parties provided evidence of sharing the household duties and responsibilities and individual tasks in detail. They have provided consistent evidence of their living arrangements and details about their daily lives, employment, income, work hours, health issues and social activities. The parties provided limited documentary evidence in individual and joint names indicating that they have lived together for a significant period at their current address and previous addresses.

27. Overall, the Tribunal accepts that the parties live together, and they have established a joint household and share the responsibility of the housework. There are no children from the relationship.

    Social aspects

28. The Tribunal considered the social aspects of the relationship, including whether the parties represent themselves to other people as being married to each other, the opinions of friends and acquaintances about the nature of the relationship, and any basis on which the parties plan and undertake social activities.

29. The parties provided a significant amount of documentary and photographic evidence of their social activities together. They provided documentary and photographic evidence of travelling to Queensland for their honeymoon, renting cabins with family members at Avoca Beach, photographs of their wedding ceremony and dining out with family and friends, going to the beach and attending other significant events such as birthday parties, weddings, christenings and Christmas celebrations. They also provided photographs of the applicant’s mother’s travel to Australia when she visited them. They provided evidence that they are socially recognised as husband and wife and engage frequently with family, friends and work colleagues, presenting themselves in a committed spousal relationship. The parties also provided statutory declarations (Form 888) from family and friends attesting to the genuineness of their relationship. The Tribunal accepts that family and friends believe the parties’ relationship to be genuine and their relationship is supported by their families. 

30. The Tribunal is satisfied they plan and undertake joint social activities and represent themselves to others as being married to each other. The Tribunal accepts that the parties’ family and friends believe that they are in a genuine and continuing spousal relationship. The Tribunal is satisfied that there is family support for the relationship.

31. The Tribunal places some positive weight on the social aspects of the relationship.

    Commitment

32. The Tribunal has considered the nature of the parties’ commitment to each other, including the duration of the relationship, the length of time the parties have lived together, the degree of companionship and emotional support they provide each other and whether the parties view the relationship as a long-term one.

33. The applicant and sponsor claimed to have met at a licensed club in 2015 and were married in December 2015. They have provided a copy of the marriage certificate registered pursuant to the Marriage Act 1961 in Sydney, New South Wales, on 7 March 2016. The Tribunal accepts the parties are lawfully married and have been in a relationship for over five years.

34. The parties provided evidence that since meeting and entering a committed relationship and living together they have provided each other with the emotional support, care and companionship that is expected of a married couple. They further stated that they have expressed to their family and friends in Australia and Jordan and they believe themselves that their relationship is a long-term one.

35. The parties described the immense empathy and commitment towards each other and described how they have worked together to face and address any problems they have had. They provided strong evidence of caring and supporting each other during highly emotional times and during family tragedies and they also expressed their love of each other and described their attempts to have children. They stated that they provide comfort, and emotional and physical support to each other in all aspects of their lives. They provided evidence of listing each other as 100% beneficiaries of each other’s superannuation and saving for a deposit on a house of their own.  

36. The Tribunal is satisfied that the parties see their relationship as stable, mutually supportive and a long-term one. The Tribunal considers their evidence about their commitment to each other plausible, persuasive and genuine.

37. The Tribunal notes that the applicant and the sponsor were able to articulate the reasons for their decision to form a relationship and spoke of their common interests, expectations and future together.

38. The Tribunal is satisfied the applicant and the sponsor derive a strong degree of companionship and emotional support from each other that is commensurate with a couple being in a genuine and continuing relationship. The Tribunal is satisfied the couple view their relationship as a long-term one.

39. The Tribunal is satisfied, having regard to the totality of the circumstances and the evidence provided, that the applicant and the sponsor have a mutual commitment to a shared life to the exclusion of all others. The Tribunal is satisfied their relationship is a genuine and continuing relationship and that they do not live separately and apart on a permanent basis.

    Findings

40. The Tribunal is satisfied, having had regard to the totality of the circumstances and the evidence provided at the hearing, that the applicant and the sponsor have a mutual commitment to a shared life to the exclusion of all others. The Tribunal is satisfied their relationship is genuine and continuing. The Tribunal is satisfied they live together and not separately and apart on a permanent basis. Having considered all the evidence and the circumstances of the relationship as detailed above, the Tribunal is satisfied the parties were in a spousal relationship at the time of application.

41. The Tribunal is satisfied that the sponsor is not prohibited from being a sponsoring partner and continues to sponsor the applicant. The Tribunal is satisfied that the sponsor, at the time of the visa application and decision, was an Australian citizen who had turned 18.

42. The applicant’s movement records provide evidence of him having been the holder of a Visitor (Subclass 600) visa at the time of application, which was valid until 25 March 2016. He held this substantive visa upon applying for the Partner (Temporary) (Class UK) Subclass 820 visa on 18 March 2016. As the applicant held a substantive visa at the time of application, further requirements in cl.820.211(2)(d) need not be met.

43. Based on the above the Tribunal is satisfied that the requirements of s.5F(2)(b)-(d) of the Act were met at the time the visa application was made and are met at the time of this decision.

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

45. Given the findings above, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for a Subclass 820 visa.

    DECISION

46. 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.

    Russell Matheson
    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).