Chibuzor (Migration)

[2023] AATA 3075

Chibuzor (Migration) [2023] AATA 3075 (19 September 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Emeka Emmanuel Chibuzor
Mr Emmanuel Chibuzor
Mr Victor Chibuzor

REPRESENTATIVE:  Mr Samuel Charles Brouff

CASE NUMBER:  1829617

HOME AFFAIRS REFERENCE(S):          BCC2017/2264933

MEMBER:Kira Raif

DATE:19 September 2023

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the applications for Partner (Temporary) (Class UK) visas, with the direction that the first named 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(1)(a) of Schedule 2 to the Regulations

The Tribunal has no jurisdiction in relation to the second named and third named applicants.

Statement made on 19 September 2023 at 1:14pm

CATCHWORDS

MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – genuine and continuing relationship – joint bank accounts and ownership of assets – shared responsibility for care and support of children – joint social activities – decision under review remitted     

LEGISLATION

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

CASES

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 to refuse to grant the applicants Partner (Temporary) (Class UK) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The first named applicant (the applicant) is a national of Nigeria, born in October 1962. He  applied for the visa on 27 June 2017 on the basis of his relationship with his sponsor. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl 820.211 because the delegate was not satisfied the applicant was the spouse of the sponsor. The applicant seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal on 19 September 2023 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor. The applicants were represented in relation to the review. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration in relation to the first named applicant.

4. There is no primary decision in relation to the two children and the representative’s submission to the Tribunal is that the two children were included in the primary application as non-migrating dependent family members and they were included in the application for review by mistake. There appears to be no primary decision in relation to the second and third named applicants and no reviewable decision. The Tribunal finds that it has no jurisdiction in relation to the second and third named applicants.

   Relevant law

5. At the time the application was made, 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).

6. 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.

7. ‘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). 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?

8. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. The applicant provided with the application a copy of the marriage certificate indicating the couple registered their marriage at Ashtonfield NSW in March 2017. There is nothing to suggest the marriage is not valid. The Tribunal is satisfied 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?

9. The parties claim to have met through a mutual friend who met the sponsor on a dating site. The applicant called the sponsor in June 2015 and since that time they were communicating daily. After two months they made arrangements to meet in person and the applicant travelled to Port Macquarie where the sponsor lived. They met on 31 July 2015 and their relationship developed further. They would travel to spend weekends with each other and celebrated significant holidays. The couple decided to move in together and chose to relocate to Newcastle. They claim to have started living together there in March 2016. They were married on 17 March 2017.

10. The Tribunal has considered the financial aspects of the relationship. The applicant provided to the Tribunal evidence of a joint account being operated by the couple and their evidence to the Tribunal is that both have individual bank accounts which were in existence prior to the relationship commencement and where salaries are deposited. The Tribunal accepts that the applicant and sponsor pool their financial resources and share household expenses. They gave evidence about purchasing their cars and the Tribunal accepts that they have joint ownership of assets. There is evidence that the life insurance policy, superannuation and will recognise the applicant and sponsor as partners.

11. The couple claim to have been living together since 2016. They gave detailed and consistent evidence about the household arrangements and the sharing of household chores. There are before the Tribunal rent receipts and their driver licenses showing the same address, as well as evidence of joint bills. The Tribunal accepts that the applicant and sponsor have been residing together and that they share the housework.

12. The applicant and sponsor spoke about the relationship with each other’s children. The applicant’s evidence is that he has established a close relationship with the sponsor’s children (two of whom live in the same household) and in the past he had attended their activities at school. The couple’s evidence is that the applicant takes the children to various activities. The Tribunal has been provided with a letter from the children’s school which recognises the applicant as a contact person for the children. The couple’s evidence is that the sponsor also maintains a relationship and regular contact with the applicant’s children overseas. The Tribunal accepts that the applicant and sponsor have joint responsibility for care and support of children.

13. There are multiple statements from third parties indicating the writers’ belief that the relationship is a genuine one. These include the statement from the sponsor’s family members and the applicant’s friends. The Tribunal has been provided with Facebook posts indicating the relationship is declared to others. The Tribunal accepts that the applicant and sponsor represent themselves to others as being married. The Tribunal accepts that family, friends and acquaintances believe the relationship to be a genuine one. The Tribunal accepts that the couple have been planning and undertaking joint social activities.

14. The relationship has been in existence for approximately seven years. the Tribunal accepts that the applicant and sponsor provide each other with companionship and emotional support. The Tribunal accepts that they view the relationship as a long term one and they described their plans for the future together.

15. Having regard to all the circumstances of the relationship, 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 that their relationship is genuine and continuing relationship. The Tribunal is satisfied they live together. On the basis of the above the Tribunal is satisfied that the requirements of s 5F(2) are met at the time the visa application was made and the time of this decision. Therefore the applicant meets cl 820.211(2)(a) and cl 820.221(1)(a).

    Conclusion

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 applications for Partner (Temporary) (Class UK) visas, with the direction that the first named 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(1)(a) of Schedule 2 to the Regulations

    The Tribunal has no jurisdiction in relation to the second named and third named applicants.

    Kira Raif
    Senior Member