Ali (Migration)

Ali (Migration) [2022] AATA 5004 (12 December 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Hasan Ali
CASE NUMBER:  1835013
HOME AFFAIRS REFERENCE(S):          BCC2014/1497581 CLF2018/365997
MEMBER:T. Quinn
DATE:12 December 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the application for a Partner (Residence) (Class BS) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 801 visa:
·clause 801.221(2) of Schedule 2 to the Regulations.

Statement made on 12 December 2022 at 11:25am
CATCHWORDS
MIGRATION – Partner (Residence) (Class BS) visa – Subclass 801 (Partner) – genuine and continuing relationship – financial, household and social aspects of relationship and nature of commitment – validly married – limited documentation provided to department and more provided to tribunal – COVID-related loss of income – applicant’s support for sponsor’s family members – joint social media activity – mostly consistent and credible evidence – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5F, 65
Migration Regulations 1994 (Cth), r 1.15A(3), Schedule 2, cl 810.221(2)
CASES
He v MIBP [2017] FCAFC 206
MIBP v Angkawijaya [2016] FCAFC 5
MIMA v Lay Lat [2006] FCAFC 61
Re MIMA; ex parte Durairajasingham [2000] 168 ALR 407
Selvadurai v MIEA [1994] FCA 1105
statement of decision and reasons
application for review

On 18 June 2014, the applicant (‘the applicant’) applied for a Partner visa[1] (‘the visa’) on the basis of his relationship with his sponsor, Ms Shaina Marie Farakos (‘the sponsor’).[2]
[1] Specifically, a Partner (Temporary) (Class UK) visa and a Partner (Residence) (Class BS) visa.
[2]Pursuant to section 65 of the Migration Act 1958 (‘the Act’). At the time of the applicant’s application, Class BS contained only one subclass: Subclass 801 (Partner) and Class UK contained only one subclass: Subclass 820 (Partner). The criteria for the grant of these visas are set out in Parts 801 and 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.
On 14 August 2015, the applicant was granted a Temporary Partner visa.[3]
[3]A Partner (Temporary)(Class UK) visa as set out in part 820 of Schedule 2 to the Regulations.
On 8 November 2018, a delegate of the Minister for Home Affairs (‘the delegate’) refused the applicant’s Residence Partner visa application, not being satisfied that at the time of decision the applicant was the spouse of the sponsor as defined by section 5F of the Act (‘the delegate’s decision’).[4]
[4] See clause 801.221 of the Regulations.
On 28 November 2018, the applicant applied for a review of the delegate’s decision with this Tribunal.[5]
[5] Pursuant to sections 338(2) and 347 of the Act.
The applicant appeared before the Tribunal on 12 December 2022 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor.
For the following reasons, the matter is remitted for reconsideration. I have proceeded to a decision having regard to all the information before me. In reaching my decision, I have regarded:
a.the evidence given by the applicant and the sponsor at hearing;
b.all material filed by or on behalf of the applicant; and
c.other relevant documents on the Tribunal and Department files.
Not all the evidence and material that has been placed before the Tribunal has been specifically referred to in the reasons set out below. The reasons incorporate reference only to that information found to be fundamental or materially significant to the determination of the issues in the case.
STATUTORY AND LEGAL FRAMEWORK
Clause 801.221(2)(a), (b) and (d) of the Regulations require that at the time of decision:
a.the applicant is the holder of a Subclass 820 visa – the applicant was granted a Partner (Temporary)(Class UK) visa pursuant to subclass 820 provisions on 14 August 2015;[6]
b.the applicant continues to be sponsored by the sponsor who is an Australian citizen, Australian permanent resident or eligible New Zealand citizen. The applicant has filed a copy of Ms Simpson’s birth certificate, passport and driver’s licence with the Department and Tribunal showing she is an Australian born Australian citizen, born on 23 November 1988.[7] Based on the information before me I am satisfied that the sponsor is an Australian citizen; and
d.at least two years have passed since the application was made.
These elements are all satisfied.
[6]See delegate’s decision.
[7]See Tribunal file.
Clause 801.221(2)(c) requires that the applicant is the spouse of the sponsor. This is the issue in this case: whether the applicant and his sponsor (together referred to as ‘the applicants’) are in a spousal relationship as defined by section 5F of the Act.
‘Spouse’ is defined in section 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.[8] 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 1.15A(3), which is extracted in the attachment to this decision. Each of the specific matters contained in clause 1.15A(3) of the Regulations are effectively questions which must be answered.[9]
[8] Section 5F(2)(aa)-(d).
[9] He v MIBP [2017] FCAFC 206.
The matters outlined in clause 1.15A(3) of the Regulations (and any other circumstances of the relationship under clause 1.15A(2)) must be considered and, to the extent relevant, applied to the applicant’s case. Accordingly, I have carefully considered these matters in relation to the material and evidence before me. I recognise, however, that the Tribunal is an independent statutory body. I must therefore reach my own conclusions as to the merits of the applicant’s case, which includes an assessment of how and to what extent each factor of clause 1.15A is relevant and applicable, independently of any conclusions reached by the delegate.
Compliance with the prescribed criteria turns on whether or not the criteria have been met and not on the objective existence of that fact.[10] In determining whether it is so satisfied, decision makers are not required to uncritically accept any or all of the claims made by the applicants and I have not done so. A decision maker does not have to have rebutting evidence available before he or she can lawfully hold that a particular factual assertion is not made out.[11]
[10] Minister for Immigration and Border Protection v Angkawijaya [2016] FCAFC 5 at 15.
[11]Selvadurai v Minister of Immigration and Ethnic Affairs and J Good (Member of the Refugee Review Tribunal) [1994] FCA 1105 at [7].
If a decision maker does not believe a particular witness, no detailed reasons need be given as to why that particular witness was not believed. The Tribunal must give the reasons for its decision, not the sub-set of reasons why it accepts or rejects individual pieces of evidence.[12]
[12]Re Minister for Immigration & Multicultural Affairs; ex parte Durairajasingham [2000] 168 ALR 407 at [67].
It is for the applicant, in this inquisitorial process, to put whatever evidence or argument they wish to a decision maker in order to enable that decision maker to reach the requisite state of satisfaction.[13]
CONSIDERATION OF CLAIMS AND EVIDENCE
[13]Minister for Immigration & Multicultural Affairs v Lay Lat [2006] FCAFC 61 at [76].
Valid marriage
If the sponsor and the applicant are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. A copy of their Marriage Certificate has been filed with the Department which indicates they were married on 4 May 2014.[14] On the evidence, the applicants were married to each other under a marriage that is valid for the purposes of the Act as required by section 5F(2)(a).
Timeline[15]
[14] See marriage certificate in the Tribunal file.
[15] See the sponsor’s relationship statement of November 2018 - document ID 4986698 in the Tribunal file.
The applicants met in December 2012 and became friends. They commenced dating in August 2013.
The applicants married at the applicant’s brother’s house in May 2014, shared with close friends and family.
The applicants commenced living together at the sponsor’s mother’s house after their wedding and later moved in with friends in 2015.
The applicant was granted a temporary partner visa on 14 August 2015.
The applicants travelled together to London and Amsterdam in February 2016 for six weeks, during which time the sponsor met the remainder of the applicant’s family. They stayed with the applicant’s parents for that time.
In August 2016, the applicants moved into their own rental property and continue residing at that property.
The Department made several requests of the applicant and their agent for further information including in April 2016, June 2018, July 2018 and August 2018 – these were not responded to. It was primarily on this basis that the applicant’s Permanent Partner visa application was refused.
The applicants have six pets together.[16]
[16] See applicant’s statutory declaration of 5 December 2022, in the Tribunal file.
Evidence Generally
Although there were minor inconsistencies in some of the applicants’ evidence at hearing, I found them generally to be credible witnesses and they appeared to give honest, authentic answers to questions, and it did not present as rehearsed or contrived.
Issues at first instance
The applicant gave evidence at hearing that he had many problems with his previous agent and has been representing himself since making his review application four years ago. He explained that he did not receive most of the correspondence from the Department, he had changed his phone number and he had given additional information to his agent which was never forwarded to the Department, unbeknownst to him.
The delegate’s decision notes that the Department requested further information in April 2016, June 2018, July 2018 and August 2018 – these were not responded to. The delegate’s decision, which is the subject of this review, notes that they had not received any contact from the applicant, save for one phone call in August 2018 (which prompted the request for further information in August 2018 which was not responded to), since prior to April 2016. Therefore the delegate had no documents in support of the applicant’s Permanent Partner visa application which would make it very difficult, if not impossible, to have a sound basis to grant such a visa two years later.
The applicants have filed submissions about their relationship and considerable evidence in support of their relationship- much of which relates to the period between the granting of the applicant’s Temporary Partner visa in 2015 and the delegate’s decision in 2018. I find this evidence persuasive in support of the applicant’s submissions that their relationship has been genuine and continuing, despite not responding to the Department’s request for further information.
This creates a situation where the applicants have been severely disadvantaged at first instance and where there is considerably more material before me than was before the delegate.
The applicants have filed comprehensive, detailed, thorough submissions which I have had regard to in coming to my decision in this case.
Financial aspects of the Relationship
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 must be considered when assessing the financial aspects of the relationship.
The applicant has filed with the Tribunal retail tenancy agreements showing the couple have been joint tenants for a number of years. He has filed some utility bills and bank statements showing that he and the sponsor take responsibility for different expenses of the household and do not have a joint account but reimburse each other where necessary. At hearing, the applicants gave consistent evidence that they transfer money to each other for expenses and have never felt the need or desire for a joint account. Their evidence about how much they earn per week was slightly inconsistent.
The applicants filed statements in 2018 indicating that they intend to buy a house together and start a family, but this has not occurred. This troubles me. However, upon questioning the applicant explained that they have not been able to reach a suitably secure position financially to explore either of these life goals.[17] He explains that the COVID19 Pandemic and associated restrictions meant he was no longer earning an income at all and he and the sponsor had to draw on their superannuation in order to survive.[18] He also explains that they have six pets together that they consider their children which are also a living expense.[19] The sponsor gave consistent evidence to this at hearing. I accept this explanation.
[17]        See submissions of 8 December 2022, in the Tribunal file.
[18]        See submissions of 8 December 2022, in the Tribunal file.
[19]        See submissions of 8 December 2022, in the Tribunal file.
The evidence indicates limited pooling of financial resources. The applicants appear to share household costs and expenses and express an intention to jointly purchase real estate.
In the circumstances, I place minimal weight in the applicants’ favour in relation to the financial aspects of the relationship.
Nature of the Household
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 matters to be considered when assessing the nature of the household.
The applicants gave consistent evidence at hearing about the way in which they divide household chores which mostly involves sharing of all tasks. They gave consistent evidence that their washing machine is broken, and they attend the laundromat to do their washing, often together or the applicant by himself because the sponsor does not have a driver’s licence.
The applicants gave consistent evidence about the size and use for their four bedrooms at their dhouse, including that one room is used for the sponsor to work from home and another is for their pet birds.
The applicants have filed many documents in joint names at the same address and have been living together for over seven years, six of which have been exclusively together with their pets. They gave consistent evidence at hearing about the hours each of them work and the fact that the applicant works from home, although the applicant gave incorrect evidence about the sponsor’s current employer.
The applicants have travelled together in 2016 and have provided evidence of same. They make submissions that they hope to travel again.
The applicants filed statements in 2018 indicating that they intend to buy a house together and start a family, but this has not occurred. This troubles me. However, the applicant submits that they have not been able to reach a suitably secure financial position but do still intend to buy a house and have children together.[20] I refer to paragraph 31 above in this regard.
[20] See submissions of 8 December 2022, in the Tribunal file.
In the circumstances, I place minimal weight in favour of the applicants in relation to the household aspects of the relationship.
Social Aspects of the Relationship
Whether the applicants represent themselves to other people as being married to each other, the opinion of the applicants’ friends and acquaintances about the nature of the relationship and any basis on which the applicants plan and undertake joint social activities are relevant matters to be considered in determining the social aspects of the relationship.
The applicants have filed photos of the applicant and the sponsor undertaking shared activities, at home together, out with others including photos from their wedding.
The applicants have filed statutory declarations from family and friends which are consistent with the evidence given at hearing. This evidence includes that the applicant has been active in supporting and helping with the sponsor’s mother and brother’s health issues. They gave consistent evidence at hearing that the sponsor’s mother was diagnosed with bladder cancer in 2017 and has been in remission for over a year now. They gave consistent evidence that because the applicant has a licence and the sponsor does not, the applicant often helped the sponsor’s mother by driving her to the shops or appointments and helping at her house. They gave consistent evidence that the applicant picked the sponsor’s brother up from a procedure last Friday, together with the sponsor, and that the sponsor’s brother has been staying with them since that time. They also gave consistent evidence that the sponsor’s brother often stays in one of the four bedrooms in their house. They gave consistent evidence about the symptoms and issues the sponsor’s brother and mother have had with their health.
The applicants have filed many screen shots of their Facebook profiles and posts which show they share over 100 mutual friends on Facebook and are presenting themselves to the world on social media as in a very committed relationship. These posts include shared birthday posts with pictures, shared posts about the recent loss of one of their dogs and other shared activities. I find this evidence very persuasive.
The applicants share big celebrations together with the sponsor’s family, such as Christmas and birthdays.
The applicants gave consistent evidence about not wanting a big wedding or to spend a lot of money on a weeding.
The applicants returned to the United Kingdom in 2016 during which time the sponsor met the applicant’s family.
There was significant difference in the evidence the applicants gave at hearing about how they spend their weekends and spare time together and what they like to watch on television together which raised some concerns.
Ultimately, I place considerable weight in the applicants’ favour in relation to the social aspects of the relationship.
Nature of the applicant and the sponsor’s commitment to each other
The duration of the relationship, the length of time during which the parties have lived together, the degree of companionship and emotional support that the parties draw from each other and whether the parties see the relationship as a long term one are all aspects to be considered in determining the nature of the parties’ commitment to each other.
The applicants have been married for over eight years and living together for over seven years. The evidence at hearing, the statutory declarations filed in support of their relationship, the social media evidence provided and photos the applicants have filed suggest the degree of companionship and support one would expect in a spousal relationship.
The evidence before me indicates that the applicant has been active in supporting and helping with the sponsor’s mother and brother’s health issues. The sponsor does not have her driver’s licence and it is clear she relies on the applicant to drive her and her family when necessary and they gave consistent evidence at hearing that this does not bother the applicant. The applicant’s mother was diagnosed with bladder cancer in 2017 and her brother has suffered from partial paralysis and other health issues since childhood and the applicant has been active in supporting both family members which their health needs. They also gave consistent evidence that the sponsor’s brother often stays in one of the four bedrooms in their house.

The applicants both could not answer who they had nominated as beneficiary under their respective superannuation funds. They also gave consistent evidence that neither of them have wills.
The applicants gave consistent evidence that they see their relationship as long term and still plan to have children and buy a house together once they are in a better financial position.
The social media evidence filed in support of their relationship indicates very strong, mutual emotional support.
I place considerable weight in the applicants’ favour in relation to their commitment to each other.
Conclusions
I have carefully considered all of the evidence before me. I consider the evidence supports a finding that the applicant and the sponsor have a mutual commitment to a shared life to the exclusion of others and that their relationship is genuine and continuing and that they live together, not separately and apart, on a permanent basis. I am satisfied that the applicant is in a spouse relationship with the sponsor and the applicant therefore satisfies clause 801.221(2) of Schedule 2 of the Regulations.
decision
The Tribunal remits the application for a Partner (Residence) (Class BS) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 801 visa:
·clause 801.221(2) of Schedule 2 to the Regulations.
T. Quinn
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).

[2022] AATA 5004

12 December 2022

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Immigration

Statutory Interpretation

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