Clarke (Migration)

[2022] AATA 2257

Clarke (Migration) [2022] AATA 2257 (28 June 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

VISA APPLICANT:  Mrs Parbinder Kaur

REVIEW APPLICANT:  Mr Jason Francis Clarke

REPRESENTATIVE:  Mr Lewis Stephens (MARN: 1466104)

CASE NUMBER:  1823763

MEMBER:Nicholas McGowan

DATE:  28 June 2022

PLACE OF DECISION:  Melbourne

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 of Schedule 2 to the Regulations; and

·     cl.309.221 of Schedule 2 to the Regulations.

Statement made 28 June 2022 at 2:28am

CATCHWORDS

MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner) (Provisional) – genuine and continuing relationship – validly married – financial, household and social aspects of relationship and nature of commitment – living apart temporarily while application in progress – further documentation including supporting statements from family and friends provided to tribunal – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), ss 5F(2), 65

Migration Regulations 1994 (Cth), r 1.15A, Schedule 2, cls 309.211(2), 309.221

APPLICATION FOR REVIEW

1. The visa applicant (‘applicant’) applied for the visas on 18 October 2016, on the basis of her relationship with the sponsor, the review applicant.

2. This is an application for review of a decision made by a delegate of the Minister for Immigration on 26 June 2018 to refuse to grant the visa applicant a Partner (Provisional) (Class UF) Subclass 309 visa under s.65 of the Migration Act 1958 (the Act).

3. The parties appealed their visa refusal to this Tribunal in an application signed by the review applicant.

   ISSUE

4. The issue in the present case is whether the parties are in a spousal relationship.

   
   
   

   CONSIDERATION OF CLAIMS AND EVIDENCE
   
   

   What is the background of this case based on all the evidence before the Tribunal?

5. The applicant and review applicant claim to have first met in December 2013. The parties claim they have been consistent contact. This claim appears plausible and there is no evidence which speaks to the contrary. The trajectory of the relationship also speaks to its bona-fide, as the parties married one another on 26 November 2015 in Australia.

   Is the applicant the spouse (relevantly in this case) of an eligible citizen?

6. Based on the documentation in the Department’s file, the Tribunal is satisfied the review applicant is at the time of application and time of decision is an Australian citizen.

   Are the parties in a spouse or de facto relationship? Are the validly married?

7. The Tribunal is satisfied that the parties were married to each other (in Australia) other under a marriage that is valid for the purposes of the Act as required by s.5F(2)(a). A copy of the parties’ marriage certificate is contained in the Department’s file. The review applicant and applicant’s wedding was held in Australia on 26 November 2015, some seven (7) years ago.

   Are the other requirements for a spousal relationship met?

8. The Tribunal must consider all the circumstances of the relationship (including the matters specified in r.1.15A) in determining whether the parties are in a “married relationship” as defined by s.5F(2).

9. The Tribunal has had regard to the parties’ financial relationship; the nature of their household; the social aspects of the relationship; and the nature of their commitment to each other. On these aspects the Tribunal has considered all the evidence before it and is satisfied the facts of this case are as follows:

   ·The parties met as they claim in 2013.

   ·The parties married in November 2015, and to this day they continue to live apart temporarily while the applicant’s visa application is being processed.

   ·The parties have provided this Tribunal with additional documentary evidence not before the delegate when the refusal decision was made previously. This includes financial and other documents. A copy of the parties Will, and superannuation contributions in event of one another’s death, have been provided.

   ·The parties have now been married for more than seven (7) years.

   ·The review applicant has provided a copy of the delegate’s refusal decision dated 26 June 2018, which outlines the reasons for the refusal.

   ·Having carefully read and considered all the evidence now available, this Tribunal is satisfied the parties claims are genuine, as is their commitment and married relationship. It has come to this finding after also taking into consideration the site visit conducted abroad some years ago. It is clear to this Tribunal that in addition to the substantive new documentary evidence, when viewed collectively, all the parties’ evidence, and importantly the supporting statements from family and friends, establish a clear picture of the parties’ relationship as claimed by them. There is only so much evidence any couple can provide when they remain physically separate. While any one document can be dismissed or ‘de-valued’ because it lacks a date or is seemingly of insufficient detail or volume, a fair read of all the evidence present in this matter logically speaks broadly in support of the genuineness of the visa application. The Tribunal is simultaneously mindful this is the first of a two-step visa application process whereby the second and final stage (visa) is not granted until the Minister has again considered all the criteria necessary for the grant of that permanent partner visa.

   Given all the above, the Tribunal is satisfied that the review applicant and applicant demonstrate a commitment consistent with a couple in a genuine and continuing spousal relationship.

10. In respect of whether there is a mutual commitment to a share life as husband and wife to the exclusion of all others the Tribunal accepts the parties’ statements to like effect, that there is.

    FINDINGS

11. The Tribunal is satisfied that the parties’ marriage is valid for the purposes of the Act as required by s.5F(2)(a).

12. The Tribunal is satisfied that at the time of application and at the time of decision the review applicant and the visa applicant had a mutual commitment to a shared life as husband and wife to the exclusion of all others, and that the relationship is genuine and continuing.

13. Given the above, the parties therefore meet the requirements of s.5F(2)(b) and s.5F(2)(c) for a married relationship.

14. The Tribunal is also satisfied that at the time of application and at the time of decision the parties meet the requirement of s.5F(2)(d) for a married relationship, in that they do not live separately and apart on a permanent basis.

15. In respect to their living arrangement, the Tribunal notes the parties present separation is temporary and only present because of the refusal to grant the visa applicant the temporary visa (which is the subject of this review).

16. For the reasons set out above, the Tribunal is satisfied that at the time the visa application was made the parties were in a ‘married relationship’ within the meaning of s.5F(2) of the Act. The Tribunal further finds that at the time of decision, they continue to be in a married relationship.

17. It follows that the Tribunal finds that at the time of the visa application the visa applicant was the spouse, within the meaning of s.5F of the review applicant, who is an Australian citizen, and meets the requirements of cl.309.211(2) of Schedule 2 to the Regulations.

18. Accordingly, the visa applicant meets cl.309.211.

19. Further, the Tribunal finds that at the time of the Tribunal’s decision the visa applicant continues to be the review applicant’s spouse, and so continues to meet cl.309.211, and therefore meets the requirements of cl.309.221 of Schedule 2.

20. 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.

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