CHOI (Migration)

[2021] AATA 443

CHOI (Migration) [2021] AATA 443 (24 February 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms BYUNG SUN CHOI

VISA APPLICANT:  Mr TAEYOUNG HWANG

CASE NUMBER:  1801765

DIBP REFERENCE(S):  BCC2015/3413041

MEMBER:Russell Matheson

DATE:24 February 2021

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Partner (Provisional) (Class UF) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 309 (Partner (Provisional)) visa:

·cl.309. 211, cl.309.212 and cl.309.213 of Schedule 2 to the Regulations; and

·cl.309.221 of Schedule 2 to the Regulations.

Statement made on 24 February 2021 at 8:32pm

CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – genuine and continuing spousal relationship – validly married, divorced and remarried in Australia – financial, household and social aspects of relationship – nature of commitment – detailed, consistent and credible evidence – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5F(2), 65
Migration Regulations 1994 (Cth), r 1.15A(3), Schedule 2, cls 309.211(2), 309.221

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 15 November 2017 to refuse to grant the visa applicant a Partner (Provisional) (Class UF) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant (the applicant) is a Korean national born in December 1953. He applied for the visa on 19 November 2015 based on his relationship with his sponsor, the review applicant. At that time, Class UF contained only one subclass: Subclass 309 (Partner (Provisional)). The criteria for the grant of this visa are set out in Part 309 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 visa applicant did not satisfy cl.309.211 because the delegate was not satisfied that the applicant is the spouse of the sponsor.  

4. The review applicant appeared before the Tribunal on 24 February 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor.

5. The review applicant was represented in relation to the review by her 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 issue in the present case is whether the applicant is the spouse of the sponsor as defined in s.5F of the Act.

8. The Tribunal has before it the Departmental file relating to the applicant; its own file; and a copy of the Department’s decision provided by the sponsor to the Tribunal.

9. The evidence the parties provided at the Tribunal hearing is recorded throughout this decision record.

   Whether the parties are in a spouse or de facto relationship

10. Clauses 309.211(2) and 309.221 require that at the time the visa application was made, and at the time of this decision, the visa 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 to be the spouse of the review applicant who is an Australian citizen.   

11. ‘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 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 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?

12. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. The applicant provided a copy of the marriage certificate registered under the Marriage Act 1961 indicating the applicant and sponsor were married at Rhodes, NSW, on 26 July 2015. There is no evidence before the Tribunal to indicate 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).

13. In forming an opinion as to whether they are in a marital relationship and in considering whether they have a mutual commitment to a shared life as husband and wife to the exclusion of all others, whether their relationship is genuine and continuing, and whether they live together and not separately and apart on a permanent basis as defined in s.5F(2)(b)-(d), the Tribunal has had regard to all the circumstances of the relationship. This includes evidence of the financial and social aspects of the relationship, the nature of the applicant’s and the sponsor’s household and their commitment to each other as set out in r.1.15A(3).

14. After careful consideration of all the evidence before it, the Tribunal has reached the conclusion that it is satisfied the applicant is the spouse of the sponsor within the meaning of s.5F of the Act. Below, the Tribunal sets out its consideration of the evidence under the relevant aspects of matters it must take into consideration under r.1.15A(3), and the reasons for its decision.

15. The Tribunal had the benefit of the applicant’s and the sponsor’s oral evidence and a witness (sponsor’s niece) at the hearing and found their evidence to be detailed, consistent and overall, credible. The Tribunal gave all the evidence provided by the parties at the Tribunal hearing and evidence provided by the applicant to the Department and the Tribunal file due regard. The applicant provided a significant amount of additional documentary and photographic evidence to the Tribunal.

16. The Tribunal acknowledges the delegate’s concerns set out in the primary decision record. The Tribunal discussed these with the applicant and the sponsor during the hearing and the Tribunal is satisfied that the parties were credible witnesses. 

    Are the other requirements for a spouse relationship met?

    Financial aspects

17. The Tribunal has considered the financial aspects of the relationship including any joint ownership of real estate or major assets, any joint liabilities, the extent of any pooling or sharing of financial resources, whether any person in the relationship owes any legal obligation in respect of the other, and the basis of any sharing of daily household expenses and any combined future financial commitments or plans.

18. The parties provided documentary evidence of operating a joint account and business account with the ANZ from December 2017 to December 2018. The parties presented evidence of debit cards linked to the joint account and use of the cards for day-to-day living expenses. The statements indicate small debits for daily purchases and expenses and the payment of household bills and rent. The applicant provided evidence of money transfers from his Korean Shinhan Bank account to the sponsor for the period March 2016 to February 2019 totalling AUD 22,9,444.41. The parties stated that the money transfers were income from their joint business venture (clothing alterations) in Korea and was utilised to purchase a similar business in Australia. The parties stated that they have both made an equal financial contribution to establish their business in Australia. The applicant gave evidence that the sponsor manages their financial affairs and he runs the business and that they share the limited income and they make deposits into the joint account monthly. He further stated that the business is not very profitable at present. The parties provided evidence of their business registration, shop lease agreement and merchant statements. The parties stated that they have operated a business in Korea and Australia together and have always pooled and shared their financial resources.

19. The parties had a sound knowledge and presented detailed and consistent evidence of their financial affairs, including individual income, bank accounts, daily living expenses, rental payments, payment of utility bills, household purchases, future financial plans and commitments.

20. The parties have no joint liabilities or major assets together. There is limited evidence before the Tribunal to indicate that the parties share or pool their financial resources. There is no evidence before the Tribunal that one person in the relationship owes any legal obligation in respect of the other. There is limited evidence before the Tribunal to support that the parties share day-to-day living expenses or pool their financial resources.

21. The parties gave detailed and consistent evidence and the Tribunal found them to be genuine and convincing in relation to the financial aspects of the relationship. The Tribunal accepts that the parties are prepared to share their financial resources and any ongoing or future financial responsibilities.

22. The Tribunal places some positive weight on this aspect of the relationship.

    Nature of the household

23. The Tribunal has considered the nature of the household including any joint responsibility for the care and support of children, if any, living arrangements of the parties and the sharing of the responsibility for housework.

24. The parties provided documentary evidence of cohabiting together in Korea and Australia. They provided a Korean real estate lease in joint names when the sponsor visited the applicant in Korea and the residential tenancy agreement for their current address in Australia. The parties provided documentary evidence of the sponsor travelling to Korea on numerous occasions and significant amount of correspondence such as utility bills, foreign exchange receipts, insurance policies, phone bills, bank statements, business registration, shop lease agreement, health polices, tax invoices and other mail addressed to them individually and jointly when cohabiting at their Korean and Australian addresses.

25. The parties gave detailed and consistent evidence in relation to their living arrangements and sharing of the household duties and responsibilities such as cooking, washing clothes, grocery shopping and other household maintenance responsibilities.

    Social aspects

26. The Tribunal considered the social aspects of the relationship, including whether the parties represent themselves to other people as being married to each other, the opinion of friends and acquaintances about the nature of the relationship, and any basis on which the parties plan and undertake social activities.

27. They provided evidence that they are socially recognised as husband and wife and engage frequently with family and friends presenting themselves in a committed spousal relationship. The applicant provided a significant amount of additional documentary and photographic evidence that is captioned and dated of their social activities over a lengthy period (June 2015 to June 2020). The applicant provided photos of himself and the sponsor with each other, and with friends and family members in several social settings in Australia and Korea. The parties provided several statements (Form 888 and statutory declarations) from their friends and acquaintances who had a sound knowledge of the relationship but gave little insight into the inception and development of the relationship over time. The parties readily gave clear and detailed evidence of the frequent social interaction between their extended families and the support provided between the families for both the visa applicant and their marriage. This was also supported by a witness (sponsor’s niece) at the hearing. The Tribunal finds the photographic evidence persuasive but places little weight on the statements provided.

28. Overall, the Tribunal accepts the applicant and the sponsor plan and undertake social activities and travel together. The Tribunal is satisfied that the parties represent themselves to family, friends and other people as being in a marital relationship. The Tribunal is satisfied that family, friends and relatives view the relationship as a genuine and committed one.

    Commitment

29. The Tribunal has considered the nature of the parties’ commitment to each other, including the duration of the relationship, the length and time the parties have lived together, the degree of companionship and emotional support they provide each other, and whether the parties view the relationship as a long-term one.

30. The parties claim to have first met in December 2008 at Harbord Diggers Club, Freshwater. The parties married the first time in January 2012, and they divorced in April 2014 due to marital challenges. The parties met by chance at a Korean supermarket in January 2015 and this reignited their relationship and they decided to remarry for a second time in July 2015.The parties have provided a copy of their marriage certificate registered in Australia. The Tribunal accepts the parties are lawfully married and have been in a relationship for approximately five and a half years on the second occasion.

31. The parties provided evidence of attending church together and their shared religious and cultural beliefs from their common origin in Korea. The Tribunal considers the parties have shown commitment to each other through their ongoing support since their marriage, their times together during the sponsor’s trips to Korea, and evidence of their constant communication through social media and postal mail when the sponsor is in Australia and the applicant in Korea. They gave clear evidence of reliance upon the other for emotional support at difficult times such as the sponsor suffering from depression after badly injuring her leg. They readily outlined their companionship and relationship habits by providing intimate details about their relationship.

32. The parties presented documentary evidence of continued daily contact during periods of separation and a sound knowledge of each other’s lives, family, living arrangements, health issues, personal history, business arrangements and future together. The evidence of communication between the parties is significant and the Tribunal considers the parties’ knowledge of one another and their everyday concerns is a function of this communication.

33. The sponsor has made the applicant a beneficiary of her health insurance.

34. The Tribunal is satisfied that the parties see their relationship as stable, mutually supportive and a long-term one. The Tribunal considers their evidence regarding their commitment to each other plausible, persuasive and genuine.

35. The Tribunal notes that the applicant and the sponsor were able to articulate the reasons for their decision to form a relationship and spoke of their common interests, expectations and future.

36. The Tribunal is satisfied the parties provide each other with a strong degree of companionship and emotional support that is commensurate with a couple having a commitment to a shared life together. The Tribunal is satisfied the couple view their relationship as a long-term one.

37. The Tribunal is satisfied, having regard to the totality of the circumstances and the evidence provided that the applicant and the sponsor have a mutual commitment to a shared life to the exclusion of all others. The Tribunal is satisfied their relationship is a genuine and continuing relationship and that they do not live separately and apart on a permanent basis.

    Findings

38. Based on 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.

39. Given these findings, the Tribunal is satisfied that at the time the visa application was made and at the time of this decision the parties were in a spousal relationship. Therefore, the visa applicant meets cl.309.211(2) and cl.309.221.

40. There is no evidence before the Tribunal that the spouse of the applicant is prohibited from being the sponsor of the applicant. The Tribunal is satisfied that the sponsor at the time of the visa application was an Australian citizen who had turned 18. Therefore, the applicant meets cl.309.212 and cl.309.213. 

41. 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 309 visa.

    DECISION

42. The Tribunal remits the application for a Partner (Provisional) (Class UF) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 309 (Partner (Provisional)) visa:

    ·cl.309.211, cl.309.212 and cl.309.213 of Schedule 2 to the Regulations; and

    ·cl.309.221 of Schedule 2 to the Regulations.

    Russell Matheson
    Member

    ATTACHMENT  - Extract from Migration Regulations 1994

    1.15ASpouse

    (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). they lived together, have established a joint household together and shared the responsibility of the housework when the parties were together in Korea and now in Australia. There are no children from the relationship.