Allamby (Migration)

[2022] AATA 4909

Allamby (Migration) [2022] AATA 4909 (1 December 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Jean-Phillipe Allamby

CASE NUMBER:  2100327

HOME AFFAIRS REFERENCE(S):          BCC2018/321514

MEMBER:M. Edgoose

DATE:1 December 2022

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)(a) of Schedule 2 to the Regulations

·cl 820.221 of Schedule 2 to the Regulations

Statement made on 01 December 2022 at 10:02am

CATCHWORDS
MIGRATION –Partner (Temporary) (Class UK) visa – Subclass 820– parties validly married – genuine married relationship at the time of application genuine and committed spouse relationship at the date of decision – copy of their sons’ birth certificate provided – decision under review remitted 

LEGISLATION
Migration Act 1958, ss, 5F, 65, 359
Migration Regulations 1994, r 1.15, Schedule 2, cls 820.211, 820.221

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 19 January 2018 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 (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 cl 820.211.

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

   Consideration of claims and evidence

   Whether the parties are in a spouse or de facto relationship

5. 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.

6. ‘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?

7. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. Since the delegate’s decision was made on 28 December 2020 the applicant has since married the sponsor and had a child together. On 17 July 2022 the applicant submitted to the Tribunal a copy of their marriage certificate. The marriage between the applicant and sponsor took place on 21 December 2021 at St Kilda Beach, Jacka Boulevard St Kilda. 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?

8. The Tribunal notes that the delegate primarily refused the visa application on the grounds that she was not satisfied based on a lack of evidence that the applicant and sponsor were in a genuine de facto relationship at the time.

9. Since the refusal by the delegate couple have submitted a vast amount of evidence to the Tribunal. The couple have also married and had a child together. Given this the Tribunal is satisfied that the couple are in a genuine relationship and are a family unit and therefore meet the requirements of reg 1.15A(3) and s 5F(2)(b)-(d) of the Act.

10. On 12 January 2021 the applicant provided the following evidence to the Tribunal in support of her relationship with the sponsor.

    a.Two rental agreements

    b.Evidence of cohabitation

    c.Photographs of the couple and with family and friends

    d.Photographs of the couple on holiday in Canada

    e.Four Form 888s Statutory Declarations in support of the relationship

    f.Copies of online conversations through a social media application between the applicant, sponsor, and family members

    g.Joint Commonwealth Bank Statement

    h.Three signed statements from the applicant’s father, mother and older sister in support of the relationship

11. On 16 February 2021 the applicant provided a copy of a Victorian Relationship Certificate dated 12 February 2021. The Tribunal is satisfied with the evidence provided by the applicant up until 16 February 2021 that she and the sponsor were in a genuine de facto relationship. 

12. On 17 July 2022 the applicant submitted to the Tribunal a copy of the couple’s marriage certificate dated 21 December 2021 which was support by a range of wedding photos. On 23 September 2022 the couple’s son was born. On 29 November 2022 the applicant submitted to the Tribunal a copy of their sons’ birth certificate.

13. Based on the overall evidence provided and the length of this relationship the Tribunal is satisfied that the applicant and sponsor are in a genuine and continuing relationship and that with the addition of their son they are a family unit. Given this the Tribunal is satisfied that the applicant meets all the requirements according to reg 1.15A(3) and s 5F of the Act.

14. On the basis of the above the Tribunal is satisfied that the requirements of s 5F(2) are met at the time of this decision.

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

16. 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

17. 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)(a) of Schedule 2 to the Regulations

    ·cl 820.221 of Schedule 2 to the Regulations

    M. Edgoose
    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).