Bajrami (Migration)

[2024] AATA 466

Bajrami (Migration) [2024] AATA 466 (8 January 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Fikrete Bajrami

CASE NUMBER:  1910415

HOME AFFAIRS REFERENCE:               BCC2017/2798777

MEMBER:Glynis Bartley

DATE:8 January 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(6) of Schedule 2 to the Regulations

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

Statement made on 8 January 2024 at 4:57pm

CATCHWORDS
MIGRATION –Partner (Temporary) (Class UK) visa – Subclass 820–– parties were married to each other under a marriage that is valid for the purposes of the Act – have two daughters together – parties see their relationship as a long-term commitment –– couple had a mutual commitment to a shared life to the exclusion of all others – decision under review remitted        

LEGISLATION
Migration Act 1958, ss, 5F, 65, 359, 376
Migration Regulations 1994, rr 1.09, 1.15, Schedule 2, cls 820.211, 820.221

STATEMENT OF DECISION AND REASONS

ISSUES

1. The issues in this case are whether the applicant, Mrs Fikrete Bajrami, is validly married to her sponsor, Mr Edin Ahmeti, and, if so, whether she continues to be his spouse, as defined in s 5F of the Migration Act 1958 (Cth) (the Act).

   APPLICATION FOR REVIEW

2. 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 Act.

3. The applicant applied for the visa on 5 August 2017 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.

4. On 12 April 2019, the delegate refused to grant the visa on the basis that the visa applicant did not meet cl 820.211(6)(b). The delegate said that the applicant had not provided a copy of her marriage certificate, despite a request from the Department by email on 8 August 2018. The delegate was not satisfied that the applicant had married her sponsoring partner under a marriage that is recognised as valid for the purposes of the Act.

5. The applicant applied to the Tribunal for review of the delegate’s decision on 26 April 2019.

6. The applicant appeared before the Tribunal on 3 January 2024 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 Serbian language. The parties’ infant daughters were present during the hearing.

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

   BACKGROUND

8. The applicant is a citizen of Kosovo and is 37 years old. She has not declared any previous marriages or de facto relationships. The applicant’s parents and three of her siblings live in Kosovo. Two of her sisters live in Germany. The applicant is a qualified hairdresser. She is not currently in the paid workforce.

9. The sponsor is a 40-year-old Australian citizen by grant. He has not declared any previous marriages or de facto relationships. The sponsor’s parents and sister live in Australia. He is employed a metal roofer.

10. The applicant and the sponsor (the parties) stated in the application that they met in Kosovo in 2015 and formed a relationship soon afterwards. They became engaged in 2016. On 16 January 2017, the applicant was granted a Prospective Marriage (Subclass 300) visa. She arrived in Australia on 13 April 2017 and the parties were married at Peakhurst on 17 June 2017. They have two daughters aged under three years.

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. It has been six and a half years since the applicant applied for the visa and almost five years since she lodged her application with the Tribunal. During the hearing, the parties expressed frustration and distress about the delays and the resultant impact on their lives, including their ability to freely travel to visit the applicant’s family overseas.

12. The delegate did not make any assessment or findings in relation to the parties’ relationship either against s 5F of the Act or reg 1.15A(3). After having regard to the particular circumstances of this case, I considered that it was appropriate to do so.

13. The parties gave consistent and spontaneous oral evidence regarding the history and nature of their relationship, living arrangements, daily routines and care of their daughters. They impressed me as honest and reliable. Although there was limited information from friends or relatives to support the parties’ claims, in my view this was due to being unrepresented rather than a lack of available evidence. I did not consider it was necessary to telephone the sponsor’s father during the hearing, although he was available to speak to the Tribunal in support of the application, because of the strength of the other evidence before me.

14. The applicant confirmed at the hearing that she was seeking review of the delegate’s decision to refuse her application for a Subclass 820 visa, despite also referring to a Subclass 801 visa refusal on the application form.

    Are the parties validly married?

15. Clause 820.211 requires that at the time of application, the applicant meets one of several sub-criteria, including cl.820.211(6) of Schedule 2 to the Regulations. Clause 820.211(6)(b) requires that the applicant has married the sponsoring partner under a marriage that is recognised as valid for the purposes of the Act.

16. The delegate refused the application on the basis that the applicant had not provided a copy of the parties’ marriage certificate. Consequently, he was not satisfied that the applicant had married the sponsor, as required. The applicant provided a copy of the parties’ marriage certificate to the Tribunal along with her application. The sponsor denied in an accompanying statement that they had ever been contacted by the Department to request the marriage certificate. He said if they had been aware of the request, they would have provided it. The Department’s file indicates there were ongoing communication problems between the parties and the Department.

17. The marriage certificate submitted to the Tribunal shows that the parties were married at Peakhurst on 17 June 2017. There was no evidence before me to suggest that the marriage was not valid. On the available evidence, I accepted that the parties were married to each other under a marriage that is valid for the purposes of the Act.

18. Consequently, I find that the applicant satisfies cl.820.211(6)(b).

    Are the parties in a spouse relationship?

19. Clauses 820.211(6)(d) and 820.221 require that at the time the visa application was made, and at the time of this decision, the applicant continues to be the spouse of the sponsoring partner. There are some exceptions to this requirement which are not relevant in this case.

20. ‘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.

    Financial aspects of the relationship

21. The parties are living in a home with, and owned by, the sponsor’s parents. The applicant is not currently in the paid workforce because she is the primary carer for the parties’ two young daughters. The sponsor is self-employed as a roofer and receives family tax benefit from Centrelink. The sponsor purchased a home in his name in 2018, which is currently being leased to tenants. The parties plan to renovate and move into the home as soon as practicable. I accepted that the applicant’s name could not be included on the title of the property because of her visa status.

22. The parties gave consistent oral evidence that they have separate Westpac Bank accounts. The applicant frequently uses the sponsor’s ATM card to pay for groceries and items for the children. The parties provided a near identical account of the arrangement of their finances. The applicant said she hopes to return to the workforce as a hairdresser when the children are older.

23. The parties do not currently have any joint assets, liabilities or legal commitments to one another. I accepted that this is due to the applicant’s visa status and her caring responsibilities. Although the applicant is entirely reliant upon the sponsor to meet her day-to-day expenses at present, she is able to access his bank account as needed.

24. The financial aspects of the relationship are consistent with the parties being in a genuine and continuing spousal relationship.

    Nature of the household

25. I accepted that the parties have been living together with the sponsor’s parents since the applicant arrived in Australia in 2017. The applicant does the majority of the cleaning and all of the cooking and laundry. The sponsor shares some cleaning tasks. The applicant is the primary carer for the parties’ two daughters, although the sponsor is actively involved in their care. This was evident throughout the hearing as he attended to their needs, and they sought him out for affection and comfort.

26. The evidence of the establishment of a joint household since 2017 provides significant weight in support of a finding of a genuine and continuing relationship.

    Social aspects of the relationship

27. The parties gave consistent oral evidence that they socialise with family and friends. They enjoy taking their daughters to the beach and on picnics. The parties and their daughters travelled together to Kosovo for six weeks in July/August 2023 to visit the applicant’s parents and siblings. They gave an entirely consistent account of the details of their holiday, including a five-day side trip to Albania.

28. The parties said they took their children to the recent New Year’s Eve fireworks in Sydney after going out to a restaurant for dinner.

29. The parties provided numerous photographs which show them at beaches, picnics, playgrounds and shopping centres with their children. Some of the photographs include members of the sponsor’s family. The parties gave spontaneous and persuasive oral evidence that they have notified Centrelink of their marriage, and I accepted their account. They were familiar with the details of each other’s families. They have regular contact with the sponsor’s sister and her family, who live nearby.

30. I was satisfied that the parties represent themselves to their families, friends and the wider community as being married to each other. The social aspects of the relationship support a finding that the parties are in a genuine and continuing relationship.

    Nature of the persons’ commitment to each other

31. The parties have been married for seven and a half years and have two children together. The sponsor is identified as the father on both birth certificates, copies of which were provided to the Tribunal. The parties gave a consistent and persuasive account that the sponsor was present at both of his daughters’ births. The applicant said she found the sponsor’s presence to be reassuring.

32. I was satisfied that the parties provide one another with a high degree of companionship and emotional support. They gave similar evidence regarding their plans for the future, including to have another child and move into their own home once the planned renovations are completed. It was evident during the hearing that the parties have a caring relationship based on mutual trust and affection. The applicant described the sponsor as her best friend. The sponsor has given the applicant full access to his bank account, which demonstrates that he trusts her implicitly. I accepted that the parties have a shared commitment to each other and their two daughters.

33. I was satisfied that the parties see the relationship as long-term, as evidenced by their decision to have children together. This provides significant weight in support of a finding of a genuine and continuing relationship.

    Conclusion

34. After having regard to all of the circumstances of the relationship between the parties, I was satisfied that they have a mutual commitment to a shared life together to the exclusion of all others. I was satisfied that the relationship between the parties is genuine and continuing. I find that they live together and that therefore they do not live separately and apart on a permanent basis.

35. On the basis of the above, I was satisfied that the requirements of s 5F(2) are met at the time the visa application was made and at the time of this decision. Therefore, the applicant meets cl.820.211(6)(d) at the time of application and continues to meet this criterion at the time of this decision.

36. The applicant held a Subclass 300 (Prospective Marriage) visa at the time of application. She is sponsored by her spouse, who was over the age of 18 years at the time of application. The sponsor continues to be the sponsoring partner. Accordingly, the applicant satisfies the criterion in subclauses 820.211(6)(a) and (c) at the time of application and continues to meet these criteria at the time of this decision.

37. For the above reasons, I find that the applicant meets the criteria in cl.820.211(6). As the applicant continues to meet the requirements of cl.820.211(6) at the time of this decision, she satisfies the criteria in cl.820.221(1).

38. 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

39. 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(6) of Schedule 2 to the Regulations

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

    Glynis Bartley
    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).