Conti (Migration)

[2020] AATA 4706

Conti (Migration) [2020] AATA 4706 (12 November 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Lucia Marina Conti

CASE NUMBER:  1731166

HOME AFFAIRS REFERENCE(S):          BCC2015/3721347

MEMBER:Helena Claringbold

DATE:12 November 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Partner (Temporary) (Class UK) visa, with the direction that the applicant meets the following criteria for a Subclass 820 (Partner) visa:

·cl.820.211(2)(a) of Schedule 2 to the Regulations; and

·cl.820.221 of Schedule 2 to the Regulations.

Statement made on 12 November 2020 at 4:48pm

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – genuine spousal relationship – validly married – financial, household and social aspects of relationship – nature of commitment – inconsistent evidence addressed in submissions – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 5F(2)(a)
Migration Regulations 1994 (Cth), r 1.15A(3), Schedule 2, cls 820.211(2)(a), 820.221

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. On 7 December 2015, Mrs Lucia Marina Conti, the applicant, applied for a Partner (Temporary) (Class UK) visa. The application was based on her spousal relationship with Mr Pedro Gustavo Henriquez, the sponsor.

2. On 22 November 2017, a delegate of the Minister for Immigration and Border Protection refused to grant the visa. The delegate was not satisfied that the applicant and the sponsor are genuine spousal partners. Therefore, the applicant did not meet cl.820.211 of Schedule 2 to the Migration Regulations 1994 (the Regulations) made under the Migration Act 1958 (the Act). On 11 December 2017, the applicant provided the Tribunal with a copy of the delegate’s Decision Record. This is a review of the delegate’s decision.

3. On 21 October 2020, the applicant appeared before the Tribunal to give evidence and present arguments. The Tribunal also received oral evidence from Mr Henriquez and Mr Carle a friend of the applicant. The applicant was represented in relation to the review by her registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The Tribunal has taken into consideration, individually and as a whole, all the evidence in the Department of Immigration and Border Protection’s (the Department’s) case file and the Tribunal’s case file and the evidence at the Tribunal hearing.

   ISSUE

6. The issue in the present case is whether, the applicant is the spouse of the sponsor as defined in s.5F of the Migration Act 1958 (the Act).

   BACKGROUND ON THE EVIDENCE

7. The applicant was born in 1984 in Rio Cuarto, Cordoba, Argentina. Her parents and two siblings live in Argentina. The applicant did not declare any previous marriages or de facto relationships. She arrived in Australia on 24 January 2014 as the holder of a subclass 417 working holiday visa. She was granted a subsequent working holiday visa and she is currently the holder of a bridging visa.

8. The sponsor was born in 1964 in Iquique, Chile. On 11 December 1989, the sponsor married Mrs Gabriela Machado. On 27 February 2013, Mrs Machado and the sponsor divorced. There are four children from this relationship born in 1991, 1992, 1996 and 2005. The four children live in Australia. The sponsor first arrived in Australia on 10 October 1974. On 21 May 2007, he acquired Australian citizenship by grant.

9. On 1 June 2013, the parties first met at a night-club while the sponsor was working. They were introduced to each other by a mutual friend. The parties continued to spend time together until the sponsor departed Australia in July 2013 and they maintained contact with each other. On 28 November 2015, the parties married in Wakeley, NSW, Australia.

   Is the visa applicant the spouse of an eligible person?

10. The Tribunal is satisfied that the sponsor, at the time of visa application and at the time of this decision, was an Australian citizen.

    Are the parties validly married?

11. At the time the visa application was made, the applicant provided evidence of her marriage to the sponsor. 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 parties in a spousal relationship?

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).

    CLAIMS AND FINDINGS

    Are the other requirements for a spousal relationship met?

13. 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 applicant’s and sponsor’s household and their commitment to each other as set out in r.1.15A(3) of the Regulations, which is extracted in the attachment to this decision.

    The financial aspects of the relationship

14. The parties’ income is derived from their salaries. They share a savings bank account and have individual bank accounts. The parties faced financial challenges resulting from the applicant’s temporary work and the sponsor’s financial commitments. They agreed to manage their personal expenses individually and to share household expenses equally. This resulted in the sponsor paying the household bills and the applicant paying for some groceries, health fund, car road assistance and some recreational expenses. They have been saving for a car. The parties do not have any joint ownership of real estate or other major assets or joint liabilities or pool financial resources, especially in relation to major financial assets. They have a legal obligation in respect of each other related to their savings account and superannuation funds where they are nominated as non-binding beneficiaries. The Tribunal accepts that the parties pool some financial resources and share day to day household expenses.

    The nature of the parties’ household

15. The parties have lived together at several different addresses. Due to their financial restraints they began living together in shared accommodation. The applicant’s work has seen her away from home several times. At other times, lengthy travel for the sponsor saw them living apart during the week and living together at weekends. More recently they have moved to their own accommodation. Generally, the applicant does the grocery shopping and cooking on weekends and the sponsor does the gardening and general maintenance and they both share household duties. The applicant provided copies of residential tenancy agreements beginning in August 2019 and ending in August 2020. Various other documents relate to other addresses where the parties lived. The parties provided inconsistent information about their household. In a post hearing submission, the parties addressed these inconsistencies and provided additional independent evidence to support that they live together. This led the Tribunal to overall accept that the parties have lived together as claimed. The parties do not have any joint responsibility for the care and support of children. Three of the sponsor’s children live with their mother and another child lives independently. The Tribunal accepts that the parties share the responsibility of housework.

    The social aspects of the relationship

16. The parties enjoy being with friends and go to restaurants and various clubs with them. Numerous third-party statements have been provided. These have been provided by people who have known the parties for many years. They describe the development of the parties’ relationship and their view of the parties as a married couple. Photographic evidence depicts the parties together and with others at different locations. The parties provided inconsistent information about the social aspects of their relationship. In a post hearing submission, the parties addressed the inconsistent information and provided additional statutory declarations from long-term friends. The Tribunal reflected on the inconsistent information and the post hearing submission. It considered the witness evidence at the Tribunal hearing and photographic evidence, which supported that information given by the sponsor was incorrect and the parties had attended a restaurant as claimed by the applicant. The Tribunal accepts that the parties represent themselves to other people and are viewed as being married to each other. It accepts that the parties plan and undertake joint social activities.

    The nature of the persons’ commitment to each other

17. The parties have lived together in a spousal relationship since their marriage in November 2015. During their partner relationship they have lived apart on four different occasions. This was primarily due to the applicant fulfilling work commitments in and out of Australia and attending to medical issues. Throughout their relationship they have supported each other through financial difficulties and their separation. They intend to continue to save for a home and depending on their progression may have a child. They also would like to be able to afford having a celebration with their family and friends overseas. The parties provided consistent information about their personal history. The Tribunal accepts that the parties provide each other with companionship and emotional support and that they see their relationship as long term.

    Other considerations

18. The Tribunal has carefully considered a number of aspects of the sponsor’s oral evidence which concerned the Tribunal because it was inconsistent with the applicant’s oral evidence or caused the Tribunal to question (more broadly) the reliability of the applicant’s oral evidence. Specifically, on one occasion the sponsor provided different information about the parties’ household. This contrasted with the applicant’s information which was succinct, spontaneous and therefore reliable. On another occasion the sponsor was asked about the social aspects of the parties’ relationship and he gave different information to that of the applicant. At other times, the sponsor seemed unable to provide a cogent response or indeed any consistent response, rather he stated that he found it difficult to remember. On the other hand, the applicant’s evidence was given with ease and what she said is supported by independent evidence given prior to and after the Tribunal hearing. Although the Tribunal has concerns about these inconsistencies, it has weighed them against the other evidence of the case and has determined that the inconsistencies are not fatal to the application under review.

19. Overall, the Tribunal is satisfied that the applicant and the sponsor have a mutual commitment to a shared life as husband and wife to the exclusion of all others; that their relationship is genuine and continuing and that they do not live separately and apart on a permanent basis. The applicant therefore meets the requirements of s.5F of the Act. Given these findings, the Tribunal is satisfied that the parties are in a spousal relationship.

20. 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.

21. Therefore, the applicant meets cl.820.211(2)(a) and cl.820.221 of Schedule 2 to the Regulations.

22. 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

23. The Tribunal remits the application for a Partner (Temporary) (Class UK) visa, with the direction that the applicant meets the following criteria for a Subclass 820 (Partner) visa:

    ·cl.820.211(2)(a) of Schedule 2 to the Regulations; and

    ·cl.820.221 of Schedule 2 to the Regulations.

    Helena Claringbold
    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).