Caffrey (Migration)

[2019] AATA 4284

Caffrey (Migration) [2019] AATA 4284 (2 October 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Aaron Paul Caffrey

CASE NUMBER:  1731455

DIBP REFERENCE(S):  CLF2014/1729

MEMBER:P. Maishman

DATE:2 October 2019

PLACE OF DECISION:  Perth

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 (Partner) visa:

·cl.801.221(2)(c) of Schedule 2 to the Regulations

Statement made on 02 October 2019 at 2:35pm

CATCHWORDS
MIGRATION – refusal – Partner (Residence) (Class BS) visa – Subclass 801 (Partner) –validly married – financial, household and social aspects of relationship – individual and joint finances – student accommodation requiring one tenant in each room – representation as married couple – relationship genuine and continuing – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5F(2), 65, 360(2)(a)
Migration Regulations 1994 (Cth), Schedule 2, cl 801.221(2)

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 Immigration on 12 December 2017 to refuse to grant the applicant a Partner (Residence) (Class BS) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 23 December 2013 on the basis of his relationship with his sponsor. At that time, Class BS contained only one subclass: Subclass 801 (Partner). The criteria for the grant of this visa are set out in Part 801 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.

3. The delegate refused to grant the visa on the basis that the applicant did not satisfy cl.801.221(2) because the delegate was not satisfied that the applicant was the spouse of the sponsor.

4. In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the visa applicant on the basis of the material before it, pursuant to s.360(2)(a) of the Act.

5. The applicant was represented in relation to the review by his registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The applicant provided the Tribunal a copy of the delegate’s decision with his application for review. The Tribunal also had before it the Department’s file containing the information and documentation received by the Department.

8. The applicant is a 33-year-old Irish citizen. The sponsor is a 29-year-old Australian citizen. The applicant was granted a Partner (Temporary) (Class UK) (Subclass 820) visa on 22 July 2014 on the basis of his relationship with the sponsor. Between October 2015 and November 2017 the applicant was requested to, and provided, further information and support of his application for a Partner (Residence) (Class BS) (Subclass 801) visa.

9. The applicant provided substantially more documentary information to the Tribunal:

   a.joint ANZ account statements;

   b.individual account statements;

   c.superannuation statements;

   d.income tax returns;

   e.joint accommodation agreement;

   f.rent receipts;

   g.additional photographs;

   h.travel itineraries;

   i.sample of electronic/social media communications;

   j.statutory declarations from the applicant and sponsor; and

   k.statutory declarations and Form 888 statements from friends and family. 

10. The issue in the present case is whether the applicant is the spouse of the sponsoring partner.

    Whether the parties are in a spouse or de facto relationship

11. Relevantly to this matter, cl.801.221(2)(c) requires that at the time of this decision, the applicant is the spouse of the ‘sponsoring partner’, who must be an Australian citizen or Australian permanent resident or an eligible New Zealand citizen who was specified in the related Subclass 820 visa application as the spouse or de facto partner of the applicant. In the present case the applicant claims to be the spouse of the sponsor who is an Australian citizen and was identified in the Subclass 820 visa application. The departments file contains a copy of the sponsor’s Australian citizenship certificate showing she acquired citizenship on 27 May 2010. On the evidence before it, the Tribunal is satisfied that the sponsor is the ‘sponsoring partner’ of the applicant.

12. ‘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 visa applicant’s and sponsors household and their commitment to each other as set out in r.1.15A(3), which is extracted in the attachment to this decision. Each of the specific matters contained in r.1.15A(3) are effectively questions which must be answered: He v MIBP [2017] FCAFC 206.

    Are the parties validly married?

13. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. The Department’s file includes a copy of a marriage certificate signed by the Registrar of Births, Deaths and Marriages in Perth, Western Australia. The certificate confirms the applicant and sponsor were married in October 2013. There is nothing to suggest that the marriage is not valid. 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?

14. The Tribunal considered the financial aspects of the applicant and sponsors relationship. Income tax returns provided by the applicant show the applicant and sponsor declare each other as spouses on their income tax returns. The applicant and sponsor are beneficiaries of each other’s superannuation accounts. The applicant and sponsor are jointly insured in respect of comprehensive motor vehicle insurance. The parties maintain individual bank accounts into which they receive their respective incomes. They do not have any savings. The parties claim that their joint account was opened to cover the rent and household expenses. The joint account transaction summary confirms their joint account has consistently been used to pay the rent. The applicant says they do not keep track of who pays for what when it comes to day-to-day expenses because it doesn’t matter.

15. There is no evidence before the Tribunal that the applicant jointly own assets or have joint liabilities. The Tribunal finds the applicant and sponsor are jointly responsible for the day-to-day obligations such as rent and household expenses. They pool their financial resources by way of joint insurance, joint obligation for payment of rent and buying ad hoc items from their individual accounts without the amounts being reimbursed or accounted for. The Tribunal considers that the financial aspects of the applicant and sponsors relationship are indicative of a couple in a married relationship.

16. The Tribunal considered the nature of the applicant and sponsors household. The delegate was concerned that the tenancy agreement for the property in which the parties reside recorded that there was a need to be one student/tenant in each room. The applicant has provided various accommodation agreements and rental receipts in his and the sponsor’s joint names. A statutory declaration provided by the landlord, Mr Wendell Burlas, on 30 August 2018 confirms the parties have been residing together as a couple at the property since January 2013, and details the rent obligation and division of utility costs amongst the tenants. The neighbouring tenant, Jexie Andineda, provided a statutory declaration confirming that she shares the house with the parties and sees them every day. She states household shores are shared by roster and she has gone shopping with them. The parties provided separate statements which are consistent in their description of the division of the household chores.

17. The Tribunal notes the concern of the delegate that the applicant left her house keys at a friend’s, with whom she travelled overseas. The sponsor has addressed the delegate’s suggestion concerning her travels in 2016 and 2017 with a friend called John Best in her statutory declaration of 5 September 2018. The applicant provided his explanation in his statutory declaration dated 30 August 2018. The Tribunal accepts the sponsor’s and applicant’s explanation.

18. The Tribunal finds the applicant and sponsor have lived together in the same room in a share house since 2013. They share the housework and cooking duties and responsibility for keeping the premises in accordance with their accommodation agreement. The Tribunal finds the nature of the applicant and sponsors household to be indicative of a couple in a married relationship.

19. The Tribunal considered the social aspects of the applicant and sponsors relationship. The applicant and sponsor have declared each other as spouses to the Australian Taxation Office on income tax returns provided to the Tribunal for 2017 and 2019. The sponsor has declared she is in a married relationship to Centrelink. Various photographs of the applicant and sponsor show them in various social settings individually and with friends and family. The parties provided evidence of overseas travel and holidays they had undertaken together.

20. The applicant’s mother, Ann Caffrey, states that she and her husband have been aware of the applicant’s relationship with the sponsor since 2012. While she was unable to attend the party’s Australian wedding they threw a second wedding celebration when the parties visited them in Ireland the following year. The party’s housemate/neighbour and landlord both described the parties in their statutory declarations as being married and being a couple. Martina Malcolm, a friend of a couple, attended the party’s wedding in 2013 and still sees them as a couple once or twice a month. Emma Smith, a friend of the couple, provided a statutory declaration confirming she knows the applicant and sponsor to be a couple and they usually have Christmas lunch together. She stays in contact with them weekly and they visit each other a few times a month. Eoghan Gibbons, a friend of the parties, considers them to be part of his family. He has travelled with them and has observed their relationship grow and send them support each other through difficult times.

21. The Tribunal finds the applicant and sponsor represent themselves to other people as being married to each other; their friends and acquaintances consider they are in a married relationship; and the parties plan and undertake social activities together and independently. The social aspects of the applicant and sponsors relationship are indicative of a couple in a married relationship.

22. The Tribunal considered the nature of the applicant and sponsors commitment to each other. The parties have been married to each other since 2013 and shared accommodation for the duration of their relationship. The sponsor declares that the applicant helped her while she took up part-time studies and juggled a full-time job. He did more things around the house so that she would not have to stress. The parties have supported each other through pregnancy complications and other medical issues. The Tribunal accepts the parties see their relationship as long-term.

23. The delegate was concerned that the applicant is not travelled to meet delegate’s family. The Tribunal accepts the sponsor’s statement that she is estranged from her family although they are aware that she is married to the applicant. The Tribunal accepts this explanation.

24. The Tribunal is satisfied that the applicant and sponsors commitment to each other is indicative of a couple in a married relationship.

25. The Tribunal finds that the applicant and sponsor have a mutual commitment to a shared life to the exclusion of others; the relationship between them is genuine and continuing; and they live together as required by s.5F(2)(b)-(d) of the Migration Act.

26. 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.801.221(2)(c).

27. 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 801 visa.

    DECISION

28. 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 (Partner) visa:

    ·cl.801.221(2)(c) of Schedule 2 to the Regulations

    P. Maishman
    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).