Ayupan (Migration)

[2023] AATA 885

Ayupan (Migration) [2023] AATA 885 (26 March 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Daniel Paul Reyes Ayupan

REPRESENTATIVE:  Mr Mohsen Kheirollahi Hosseinabadi

CASE NUMBER:  1905762

HOME AFFAIRS REFERENCE(S):          BCC2018/1798685

MEMBER:T. Quinn

DATE:26 March 2023

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:

·Clause 820.211(2) of Schedule 2 to the Regulations

Statement made on 26 March 2023 at 4:29pm

CATCHWORDS
MIGRATION –Partner (Temporary) (Class UK) visa – Subclass 820 –parties have pooled their financial resources and shared day-to-day financial responsibilities during the relationship – the parties were validly married – genuine and continuing relationship – applicant and sponsor have a son together – marriage certificate and the birth certificate provided – decision under review remitted   

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. On 24 April 2018, the applicant (‘the applicant’ or ‘Mr Ayupan’) applied for a Partner visa[1] (‘the visa’) based on his marriage to his sponsor, Ms Rhonabel Jalipa (‘the sponsor’ or ‘Ms Jalipa’).[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.

2. On 22 February 2019, a delegate of the Minister for Home Affairs (‘the delegate’) refused the applicant’s partner visa application, not being satisfied that at the time of application the applicant was the de facto partner of the sponsor as defined by section 5CB of the Act (‘the delegate’s decision’).[3]

   [3]         See clauses 801.221 or 820.211 of the Migration Regulations 1994 (‘the Regulations’).

3. On 12 March 2019, the applicant applied for a review of the delegate’s decision with this Tribunal.[4]

   [4] Pursuant to sections 338(2) and 347 of the Act.

4. The applicant was represented in relation to the review.

5. The applicant and sponsor were listed to appear before the Tribunal on 27 March 2023 to give evidence and present arguments.  However, upon considering the material before me, I have determined the appropriate course is to remit the application.

6. I have proceeded to a decision having regard to all the information before me.  In reaching my decision, I have regarded:

   a.all material filed by or on behalf of the applicant and sponsor; and

   b.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

7. The issue in this case at the time of application for review was whether the applicants are in a de facto relationship as defined by section 5CB of the Act. However, the applicants have filed a marriage certificate dated 20 June 2020. The issue in this case is now whether the applicants are in a spouse relationship as defined by section 5F of the Act.

8. Clause 820.211(2) of the Regulations requires that at the time the visa application was made 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 visa applicant claims that he is the spouse of the sponsor, Ms Jalipa (‘the sponsor’), who is an Australian Permanent Resident. Based on the information before me I am satisfied that the sponsor is an Australian permanent resident.[5]

   [5]See page 27 of the Department file and delegate’s decision.

9. ‘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.[6] 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.[7] 

   [6] Section 5F(2)(aa)-(d).

   [7]           He v MIBP [2017] FCAFC 206.

10. 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.

11. Compliance with the prescribed criteria turns on whether or not the criteria have been met and not on the objective existence of that fact.[8]  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.[9]

    [8]           Minister for Immigration and Border Protection v Angkawijaya [2016] FCAFC 5 at 15.

    [9]Selvadurai v Minister of Immigration and Ethnic Affairs and J Good (Member of the Refugee Review Tribunal) [1994] FCA 1105 at [7].

12. 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.[10]

    [10]Re Minister for Immigration & Multicultural Affairs; ex parte Durairajasingham [2000] 168 ALR 407 at [67].

13. 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.[11]

    CONSIDERATION OF CLAIMS AND EVIDENCE

    [11]Minister for Immigration & Multicultural Affairs v Lay Lat [2006] FCAFC 61 at [76].

    Valid marriage

14. If Mr Ayupan and Ms Jalipa (‘the applicants’) are validly married, they may meet the requirements of a married relationship, but not a de facto relationship.  The applicants have filed a copy of their Marriage Certificate with the Tribunal which indicates they were married in Australia on 20 June 2020.[12] 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[13]

    [12]See Marriage Certificate in the Tribunal file, filed on 20 January 2022.

    [13]See delegate’s decision and Tribunal file, particularly submissions of 20 January 2022.

15. The applicant first arrived in Australia on a student visa on 30 October 2015.

16. The applicant and sponsor met at dinner with a mutual friend on 3 October 2016 and commenced a relationship on 10 December 2016.

17. On 4 May 2017, the applicant was granted a student visa.

18. On 7 May 2017, the applicant and sponsor began living together in rented accommodation.

19. On 15 November 2017, the applicant and sponsor registered a relationship and have filed a corroborating relationship certificate bearing this date.

20. On 24 April 2018, the applicant filed the partner visa application which is the subject of this review.

21. On 9 February 2020, the applicant and sponsor purchased a land and house as joint tenants.

22. On 20 June 2020, the applicant and sponsor were married.  They have filed a corroborating marriage certificate bearing this date, along with many photos in this regard.

23. The applicant and sponsor have a son together: Elijah Paul Ayupan born 6 October 2021.  The applicant and sponsor are both listed as parents and informants on the birth certificate. 

    Issues at first instance

24. The applicants have filed submissions about their relationship and considerable evidence in support of their relationship- much of which relates to significant events during the period since the delegate’s decision.  I find this evidence persuasive in support of the applicant’s submissions that their relationship has been genuine and continuing.

25. This creates a situation where there is extensive material before me that was necessarily not before the delegate.

    Financial aspects of the Relationship

26. 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.

27. The applicant and sponsor have filed relationship statements, many joint bank statements including joint home loan statements and other documents corroborating their pooling of financial resources.

28. The applicant and sponsor have bought a car and house together.  They have filed corroborating evidence of this and evidence that indicates the loan costs are shared.  The couple continues to live in the property they purchased in 2020, together with their young son. 

29. The applicant has filed lease agreements in joint names for 2017, 2018 and 2019, utility bills in joint names for the last several years.

30. The sponsor works as a nurse and the applicant previously worked as a mechanic and now works in uber eats and they submit they plan to have another child together one they are more financially secure.

31. The applicant has filed evidence of a joint account from 2019-present, which they have held and used together showing joint payment of household and family expenses.

32. The evidence indicates considerable pooling of financial resources and the joint purchase of real estate.  There is no evidence that they owe any legal obligations to each other or of joint liabilities; or any legal obligations owed to each other.

33. In the circumstances, I place weight in the applicants’ favour in relation to the financial aspects of the relationship.

    Nature of the Household

34. 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.

35. The applicant and sponsor live together with their son, Elijah Paul Ayupan, who was born on 6 October 2021.[14]  The applicants have filed photos from the birth of their son but there are no family photos of the three of them showing day to day activities over the last fifteen months.  Nor are their pictures from the sponsor’s pregnancy.  This troubles me. 

    [14]See birth certificate in the Tribunal file.

36. The applicant and sponsor have filed statements indicating that the applicant cares for their son while the sponsor works and takes care of the groceries, laundry and cleaning with the sponsor helping on the weekends.

37. The applicants have not filed any formal genetic evidence confirming the applicant’s paternity, but they have filed photos at the birth of their baby, and the applicant and the sponsor are listed as parents and informants on Elijah’s birth certificate. 

38. The applicants submit they want to have more children but have been waiting to be more financially secure.

39. In the circumstances, I place weight in favour of the applicants in relation to the household aspects of the relationship.

    Social Aspects of the Relationship

40. 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.

41. The applicants have filed very many photos of the applicant and the sponsor undertaking shared activities, travel, out with others including many, many photos together with the family and friends.  The applicant’s and the sponsor’s parents have both visited them in Australia – they have filed corroborating travel itineraries in this regard.  The couple have also travelled together from December 2022 – January 2023 with their young baby and filed corroborating travel itineraries in this regard.  Peculiarly they have again filed no photos from this trip together with their baby.  I am very puzzled by this.

42. The applicants have filed statements from friends attesting to the genuine nature of their relationship.  They have also filed many screenshots from Facebook posts throughout the year of 2018 showing them together, often out with others.  These present as a very public representation of their relationship.

43. The couple was married in June 2020 and have filed photos from the sponsor’s bachelorette party and their wedding which was a small house ceremony but which they clearly put time and effort into the decorations for as demonstrated by the photos filed.

44. I place 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

45. 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.

46. The applicants have been in a relationship for over six years, living together for over five years and married for nearly three years.  They have had a child together and have bought real estate together as joint tenants. 

47. The applicant and sponsor have filed relationship statements setting out the many activities, travel and special events they have undertaken together and the history of their relationship.  This is supported by many photos.

48. The applicants submit they want to have more children but are waiting until they are more financially secure.

49. The evidence filed suggests the degree of companionship and support one would expect in a genuine spousal relationship. 

50. I place weight in the applicants’ favour in relation to their commitment to each other.

    Other Matters

    Much of the evidence before me, including the real estate purchase (and corroborating certificate of title filed on 17 March 2023), the marriage certificate and the birth certificate of Elijah Paul Ayupan along with many photos, was not before the Department. 

    Conclusions

51. 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 820.211(2).

    DECISION

52. The appropriate course is for this matter to be remitted for reconsideration by the Department.

53. 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: Clause 820.211(2) of Schedule 2 of 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).