Convery (Migration)

Convery (Migration) [2019] AATA 5418 (12 August 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mrs Claire Teresa Walker, nee Convery
CASE NUMBER:  1805541
HOME AFFAIRS REFERENCE(S):          BCC2016/3938713 CLF2014/54106 CLF2017/63477
MEMBER:Steven Griffiths
DATE:12 August 2019
PLACE OF DECISION:  Adelaide
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) of Schedule 2 to the Regulations
·cl.820.221(1) of Schedule 2 to the Regulations

Statement made on 12 August 2019 at 1:31pm

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – genuine relationship – parties married after visa application – joint financial arrangements – two children of the relationship – companionship and emotional support exchanged – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5, 65, 359, 360, 363
Migration Regulations 1994, Schedule 2, cls 820.211, 820.212; rr 1.09, 1.15
CASES
He v MIBP [2017] FCAFC 206
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s.65 of the Migration Act 1958 (the Act).
The applicant, Mrs. Claire Teresa Walker, nee Convery at the time of application, applied for the visa on 7 April 2014 on the basis of her relationship with her sponsor, Mr. Ryan Lee Walker. At that time, 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 (the Regulations). The primary criteria must be satisfied by at least one applicant.
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 visa applicant was the de-facto partner, as she was at the time of application, as defined in s.5CB of the Act, of the sponsor.
The applicant appeared before the Tribunal on 12 August 2019 to give evidence, respond to questions and present arguments. The Tribunal also received oral evidence from the sponsor.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The Tribunal has taken into consideration all the evidence in the Department of Immigration file and Tribunal file, including additional information provided to the Tribunal and the evidence from the Tribunal hearing.
ISSUE
The issue in the present case is whether the visa applicant was the de-facto partner, as defined in s.5CB of the Act, of the sponsor at the time of application and if the visa applicant is the spouse, as defined by s.5F at the Act, at the time of decision of the sponsor.
BACKGROUND OF THE EVIDENCE
Mrs. Walker, nee Convery, was born in Dublin, Ireland, in 1987. Her parents, born 1959 & 1964, and her three brothers, born 1990, 1993, and 2002, all live in Ireland. .
Mr. Walker was born in Adelaide, Australia in 1986. His parents, born 1948 & 1949, and two brothers, 1972 & 1974, all live in Australia.
INFORMATION TO THE TRIBUNAL
Since the Department of Immigration made its decision, the applicant has provided further information to the Tribunal including:-
Approximately four hundred Facebook page postings
Updated statement of the relationship by applicant
Bank Statement, in joint names, for 1 January to 30 June 2018
Daughter birth certificate 25 June 2019
Son birth certificate 29 August 2017
Bank statement for home loan account, in both parties names, from 20 February 2017 to 30 June 2018
AGL electricity in applicant name for June 2019, recognising employee discount
SA Water account in sponsor name for July 2019
Is the sponsor an Australian citizen?
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. The Tribunal recognizes that the sponsor is an Australian citizen by birth.
Whether the parties are in a spouse or de facto relationship
'De facto partner' is defined in s.5CB of the Act, which provides that a person is in a de facto relationship with another person to whom they are not married if they have a mutual commitment to a shared life to the exclusion of all others, the relationship is genuine and continuing, the couple live together, or do not live separately and apart on a permanent basis, and the couple are not related by family: s.5CB(2).
‘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 r.1.15A(3), and r.1.09A(3), which is extracted in the attachment to this decision. Each of the specific matters contained in r.1.15A(3) and r.1.09A(3) are effectively questions which must be answered: He v MIBP [2017] FCAFC 206.
Are the parties validly married?
At the time the visa application was made the visa applicant provided evidence of being in a de-facto relationship from 2 April 2013 with the sponsor.
At the time of this decision, the visa applicant provided evidence of being married to the sponsor with an Australian Marriage Certificate as evidence of their marriage on 19 March 2016.
The Tribunal has regard to the document and finds that the parties are married to each other at the time of this decision, with the marriage valid for the purposes of the Act as required by s.5F(2)(a).
CLAIMS AND FINDINGS
Financial aspects of the relationship that must be considered include:-
(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 expense
The Tribunal determines that at the time of the visa application and this decision, no real estate was owned by the parties, noting the inability of the visa applicant to be recorded on the title to the family home purchase in August 2015.
The Tribunal determines that at the time of the visa application and this decision, the parties hold joint responsibility for the bank loan used to purchase the family home in August 2015.
The Tribunal determines that at the time of the visa application and this decision, none of the parties has a legal obligation with regard to the other.
The Tribunal accepts the documented and oral evidence of the sponsor being an electrician.
The Tribunal accepts the documented and oral evidence of the visa applicant working for AGL and currently being on maternity leave.
The Tribunal accepts the documented and oral evidence, confirmed independently by the parties, of the joint bank account operated in to which the wage income for both is paid and determines that this account confirms the pooling of financial resources in relation to major financial commitments.
The Tribunal accepts the documented and oral evidence, confirmed independently by the parties, of the joint bank account being used for household expenses and determines the account confirms the sharing of day-to-day household expenses.
Nature of the household aspects that must be considered include:-
(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
The Tribunal accepts the documented and physical evidence, as they were at the hearing, of the parties having two children, a son born in August 2017 and a daughter born in June 2019, and determines the parties have joint responsibility for the care and support of children.
The Tribunal accepts the photographic, documented and oral evidence of the parties living arrangements and determines, at the time of application and this decision, they have lived together since April 2013 in the Northern Territory and South Australia.
The Tribunal accepts the photographic, documented and oral evidence of the parties, and their now children, having lived since August 2015 in a home they purchased in Adelaide.
The Tribunal accepts the photographic and oral evidence, confirmed by the parties independently, on the roles each undertakes in the household, and determines, at the time of application and this decision, the parties share the responsibility for housework.
Social aspects of the relationship that must be considered include:-
(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
The Tribunal accepts the photographic, documented and oral evidence that at the time of application the parties presented themselves to others as being in a de-facto relationship.
The Tribunal accepts the photographic, documented and oral evidence that at the time of decision the parties were married on 19 March 2016 and present themselves to other people as being married to each other.
The Tribunal accepts the documented, photographic and oral evidence of friends of the parties and determines, at the time of application and this decision, the opinion of family, friends and acquaintances as being supportive of the relationship and marriage.
The Tribunal accepts the photographic, documented and oral evidence, confirmed by the parties independently, of a significant number of occasions in which they plan and undertake joint social activities.
Nature of the commitment to each other that must be considered include:-
(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.
The Tribunal accepts the evidence of the parties meeting in October 2012, being in a de-facto relationship from April 2013, becoming engaged in May 2014 and marrying in March 2016.
The Tribunal accepts the photographic, documented and oral evidence that the parties have lived together, in the Northern Territory and South Australia, since April 2013.
The Tribunal accepts the oral evidence of the parties of the anxiety issues the visa applicant deals with, and the support provided by the sponsor in helping her through these concerns every time they develop, and determines, at the time of application and this decision, that an exceptional high level of companionship and emotional support occurs between the parties.
The Tribunal accepts the oral evidence of the parties, confirmed independently, that the visa applicant does not drive a car, so the sponsor has changed his work locations and responsibilities to ensure that he works closer to home than prior to the relationship, with the Tribunal determining that this is an example of the companionship and emotional support that occurs between the parties.
The Tribunal notes the oral evidence from the parties of the ill-health of family members, being the mother of the sponsor, the father of the visa applicant and the brother of the sponsor, at the time of this decision, and the support that each of the parties is providing to each other, and determines this to be an example of the companionship and emotional support that occurs between the parties.
The Tribunal determines that the parties, at the time of application and this decision, have had and continue to have an ongoing commitment to each other and see the relationship and marriage as being long-term.
The Tribunal considered all the evidence on the circumstances of the parties and determines that the evidence supports a finding that, at the time of the application and this decision, the parties have had and continue to have a mutual commitment to a shared life together as a married couple to the exclusion of all others, with the relationship genuine and continuing.
The Tribunal accepts that the parties have been in a committed relationship since October 2012 and married in March 2016 and do not live separately.
On the basis of the above the Tribunal is satisfied that the requirements of s.5F(2) are met at the time of the visa application and this decision. The Tribunal is further satisfied that the sponsor is not prohibited by subclause (2B) from being a sponsoring partner.
The applicant therefore meets cl.820.211(2)(a). The Tribunal accepts the applicant was sponsored and therefore meets cl.820.211(2)(c), and as he was the holder of a substantive visa at the time of application, cl.820.211(2)(d) does not apply. Accordingly, the applicant meets cl.820.211(2). The applicant continues to meet these requirements at the time of decision and therefore meets cl.820.221(1).
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
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) of Schedule 2 to the Regulations
·cl.820.221(1) of Schedule 2 to the Regulations
Steven Griffiths
Member

ATTACHMENT - Extract from Migration Regulations 1994
1.09A     De facto partner and de facto relationship
(1)For subsection 5CB (3) of the Act, this regulation sets out arrangements for the purpose of determining whether 1 or more of the conditions in paragraphs 5CB (2) (a), (b), (c) and (d) of the Act exist.
Note 1     See regulation 2.03A for the prescribed criteria applicable to de facto partners.
Note 2     The effect of subsection 5CB (1) of the Act is that a person is the de facto partner of another person (whether of the same sex or a different sex) if the person is in a de facto relationship with the other person.
Subsection 5CB (2) sets out conditions about whether a de facto relationship exists, and subsection 5CB (3) permits the regulations to make arrangements in relation to the determination of whether 1 or more of those conditions 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 in a de facto relationship with 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).
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).

[2019] AATA 5418

12 August 2019

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Immigration

Administrative Law

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Judicial Review

Procedural Fairness

Statutory Construction

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