Baturi (Migration)

[2022] AATA 1477

Baturi (Migration) [2022] AATA 1477 (22 March 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Freshta Baturi

CASE NUMBER:  1903653

HOME AFFAIRS REFERENCE(S):          BCC2015/1689577

MEMBER:Kira Raif

DATE:22 March 2022

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Partner (Migrant) (Class BC) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 100 (Partner) visa:

·cl 100.221 of Schedule 2 to the Regulations

Statement made on 22 March 2022 at 4:45pm

CATCHWORDS
MIGRATION – Partner (Migrant) (Class BC) visa – Subclass 100 (Spouse) – genuine continuing relationship – validly married – supporting documentation not submitted to department by agent – documentation provided to tribunal, including birth certificates of two children – consistent and credible oral evidence – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5F(2), 65
Migration Regulations 1994 (Cth), Schedule 2, cl 100.221(2), (2A)

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 Home Affairs on 29 January 2019 to refuse to grant the visa applicant a Partner (Migrant) (Class BC) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant is a national of Afghanistan, born in April 1990. She made the application for the visa in June 2015 and in March 2016 the applicant was granted the Provisional Partner visa. The delegate refused to grant the visa on the basis that the applicant did not satisfy cl 100.221 because the applicant failed to provide any documents to support her relationship with the sponsor. The applicant seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal on 22 March 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Dari and English languages. The applicant was represented in relation to the review. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   Relevant law

4. The criteria for the grant of a Subclass 100 visa are set out in Part 100 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations).

5. Clause 100.221 requires that the applicant meet one of five alternative requirements. These include cl 100.221(2) and (2A) which require, among other things, that at the time of this decision, the applicant is the spouse or de facto partner of the ‘sponsoring partner’. Unless the applicant was granted a Subclass 309 visa by Ministerial intervention, the ‘sponsoring partner’ is the person who was specified as the applicant’s spouse or de facto partner or intended spouse or de facto partner in the related Subclass 309 application, being an Australian citizen, permanent resident or eligible New Zealand 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. In the present case the applicant claims to be the spouse of the sponsor, a ‘sponsoring partner’ within the meaning of that term. The applicant provided with the application and to the Tribunal a copy of the marriage certificate. There is nothing to indicate the marriage is not valid. The Tribunal is satisfied on the evidence before it that the applicant and sponsor 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 delegate was not satisfied that at the time of decision, the applicant was the spouse of the sponsor because the applicant failed to provide any documents to support the claim of her ongoing relationship with the sponsor. (The applicant stated in her evidence to the Tribunal that she did present additional documents to her migration agent who failed to submit these to the Department.) The couple provided additional documents to the Tribunal. These include social photographs, statements from third parties, a copy of their lease agreement and other documents. Importantly, the applicant also provided to the Tribunal birth certificates in relation to the couple’s two children. The Tribunal has also had the benefit of the applicant’s and sponsor’s oral evidence and found them to be credible witnesses.

9. The applicant’s evidence to the Tribunal is that she has no independent income (but receives some Centrelink payments for the children) but they have a joint account where her husband’s income is deposited. The applicant told the Tribunal that she uses the card that is linked to that account for daily needs. The Tribunal acknowledges that the applicant does not contribute greatly to the family budget but accepts that the sponsor is providing financial support to the applicant and is responsible for the payment of most expenses. The applicant also spoke about the purchase of some domestic goods. The Tribunal accepts that in the circumstances of this case, and in light of the couple’s cultural norms, this reflects their willingness to share finances and to form joint assets and liabilities and to share household expenses.

10. The couple gave consistent evidence about their living arrangements and there is evidence concerning their lease. The Tribunal is satisfied that they have established a joint household. They have two children and the Tribunal is satisfied that they both take care of the children.

11. Evidence before the Tribunal is that the parties plan and undertake joint social activities. The applicant provided to the Tribunal statements from third parties and other evidence confirming that the relationship has been socially recognised. They spoke about spending time with friends and distant relatives in Australia. The Tribunal is satisfied the applicant and sponsor represent themselves to others as being in a relationship and plan and undertake joint social activities.

12. The relationship has been in existence for over five years. Importantly, there are two children from this relationship and in the Tribunal’s view, the existence of two children offers strong evidence that the couple are committed to the relationship and view it as a long term one. They also spoke in oral evidence about providing each other with emotional support and reliance on each other for such support.

13. The Tribunal is mindful that the primary decision was based on the fact that  the applicant failed to provide adequate documentary evidence. She explains that the agent did not provide the documents to the Department. There is now additional evidence before the Tribunal and, since the primary decision was made, the existence of two children.

14. Having regard to all these circumstances, the Tribunal is satisfied that the applicant and sponsor have a mutual commitment to shared life to the exclusion of others. The Tribunal is satisfied their relationship is genuine and continuing. The Tribunal is satisfied they live together. Given these findings the Tribunal is satisfied that the requirements of s 5F(2) are met at the time of this decision. Therefore the applicant meets cl 100.221.

    Conclusion

15. 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 100 visa.

    DECISION

16. The Tribunal remits the application for a Partner (Migrant) (Class BC) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 100 (Partner) visa:

    ·cl 100.221 of Schedule 2 to the Regulations

    Kira Raif
    Senior Member