Czapos (Migration)

[2021] AATA 4117

Czapos (Migration) [2021] AATA 4117 (20 October 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Gizella Czapos
Mr Norbert Ioan Mihalea

CASE NUMBER:  1812607

HOME AFFAIRS REFERENCE(S):          BCC2016/3484997

MEMBER:Cathrine Burnett-Wake

DATE:20 October 2021

PLACE OF DECISION:  Melbourne

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) of Schedule 2 to the Regulations and;

·cl 820.221(1)(a) of Schedule 2 to the Regulations.

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

·cl.820.311 of Schedule 2 to the Regulations

·cl.820.321 of Schedule 2 to the Regulations

Statement made on 20 October 2021 at 5:31pm

CATCHWORDS

MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – genuine and continuing relationship – joint travel – frequent international visits – knowledge of financial resources – periods separated due to caring commitments – photos of socialising together – dependence for a substantial period – full-time studies – decision under review remitted 

LEGISLATION

Migration Act 1958, ss 5, 65
Migration Regulations 1994, Schedule 2, cls 820.211, 820.221, 820.311, 820.321; rr 1.05, 1.12, 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) applied for the visa on 20 October 2016 on the basis of her relationship with her sponsor. 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 (Cth) (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 applicant did not satisfy cl 820.211 because they were not satisfied there was sufficient evidence to demonstrate the applicant was the spouse of the sponsor.

4. The applicant, the secondary applicant and sponsor appeared before the Tribunal on 18 October 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Romanian and English languages.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in the present case is whether the visa applicant and the sponsor were in a genuine and continuing relationship at the time of application and continue to be in a genuine and continuing relationship at the time of this decision.

   Whether the parties are in a spouse or de facto relationship

7. Clauses 820.211 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 permanent resident.

8. ‘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), which is extracted in the attachment to this decision. 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?

9. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. On the evidence, the parties were married to each other on 13 November 2014, in Melbourne. This marriage is valid for the purposes of the Act as required by s 5F(2)(a).

   Are the other requirements for a spouse relationship met?

10. The Tribunal notes that it has before it a significant amount of evidence relating to the spousal relationship between the applicant and sponsor that was not available to the Department when it made its decision. Furthermore, the Tribunal had the benefit of being able to take evidence from both the applicant and sponsor about the formation of their relationship, and how it has developed to the relationship it is today, including discussing the financial aspects of the relationship, the nature of the household, the social aspects of the relationship and the nature of the commitment to each other.

11. The Tribunal heard from both the applicant, the secondary applicant, and the sponsor separately. Their evidence was consistent and can be summarised as follows:

    • The couple met on 13 May 2013. The Sponsor attended the Oradea City Council office in Romania to make enquires about his parents’ grave sites. The applicant assisted him with his query. Both said that on this meeting there was an instant spark and it was a mutual feeling of ‘love at first sight.’ They applicant gave the sponsor her telephone number.
    • A few days after their initial meeting the sponsor called the applicant.
    • They met up regularly over the following weeks and months and they officially began seeing each other as a couple.
    • Approximately three months after they met, the sponsor took the applicant and the secondary applicant on a two-week trip around Europe.
    • When they were in Rome, the sponsor proposed to the applicant.
    • The sponsor returned to Australia for several months before returning to Romania again. During this period of separation, they kept in touch via messenger and Voice messaging services.
    • The sponsor travelled again to Romina in March 2014 after the applicant was granted a visitor visa to travel to Australia.  Both the applicant and sponsor travelled to Australia and entered on 21 March 2014. The applicant stayed for approximately 5 weeks and during which time they travelled to various parts of Australia.
    • The applicant and the secondary applicant returned to Australia in September 2014.
    • During this trip to Australia, the applicant and sponsor married. They married on 13 November 2014, in Melbourne on the HMAS Castlemaine in Williamstown, with a reception following at Custom House restaurant, also in Williamstown. There were 14 guests at their wedding.
    • The applicant and the secondary applicant then returned to Romania at the end of November 2014.
    • The applicant retuned to Romania as her elderly father who was unwell required her care and assistance.
    • The applicant then returned to Australia multiple times from this point on until 2019. The sponsor also visited Romania during these periods.
    • When separated the couple kept in touch daily. Evidence of such has been provided to the Tribunal.
    • The sponsor funded the travel for the applicant during these periods and assisted her financially.
    • The applicant’s last entry to Australia was on 3 September 2019. The secondary applicant did not accompany the applicant as he was attending to his master’s studies. The secondary applicant is single and has never been married. He has never worked. He has been in continual full-time study, having completed an undergraduate degree a master’s degree and is studying for a second master’s degree. He is financially supported by the applicant and sponsor; he resides in the family home in Romania which was inherited from the applicant’s late father.
    • The applicant and sponsor reside together. They live in a rented property in Melbourne.
    • The sponsor is a long-haul truck driver and supports the couple, and the secondary applicant financially. The applicant does not work; however, her intention is to learn English and return to the work force once the pandemic is over.
    • Prior to the pandemic, the sponsor and applicant would like to travel together and enjoy other activities such as eating out and socialising with friends. Now due to the pandemic they like to watch tv shows together and go for walks.

12. The secondary applicant attested that in his view the relationship was genuine and was accepted by the family. He also commented that he can see his mother and stepfather live happily together are quite close and are in a very good, loving relationship. He said his stepfather treats his mother very well and is a good man.

    Financial aspects of the relationships

13. The applicant and sponsor have submitted evidences of their finances, including evidence of joint bank accounts going back to 2017 and other joint expenses. The sponsor is the primary income earner for the couple. However, both commented the applicant would work once the pandemic was over, and she would once more contribute to the finances.

14. Both parties demonstrated a high level of knowledge of each other’s income and expenses. The applicant knew the breakdowns of the household expenses. It is also evident that the sponsor supports the visa applicant and the secondary applicant financially.

15. The Tribunal accepts with the couple have a shared financial commitment.

    Nature of the household

16. The applicant and sponsor, although lived in separate countries for several years, between 2014 and 2019 they only did so because of the applicant’s father’s poor health. After his death, the applicant was able to settle full time in Australia. They however, spent significant time travelling between the two countries, spending several months at a time together during each period. As such, the Tribunal does not consider this time to be living apart on a permanent basis. Simply, they were separated at times due to the family and caring commitments the applicant had towards her unwell and elderly father.

17. The couple reside together in Melbourne in a rental property. The applicant’s name is not on the lease, as this lease was created before the applicant moved to Australia full time and because she could not be on the lease due to her visa status.

18. The couple gave consistent evidence about the various responsibilities they had and shared.

19. The Tribunal is satisfied that the couple live together, and the evidence provided also supports this finding.

    Social aspects of the relationship

20. The Tribunal found the oral evidence provided by the couple to be clear and persuasive evidence that the parties have been in a loving couple relationship since 2013 and that they provide one another with considerable support.

21. The couple provided documentary evidence to support their oral evidence at the hearing that they (pre-pandemic) enjoyed eating out and socialising with friends and family.

22. On the basis of the oral evidence of the parties and the evidence provided by way of photographs, the Tribunal finds that the relationship between the applicant and her sponsor is recognised and supported by their family and friends. The Tribunal is satisfied that the couple represent themselves as being married to one another to their family, friends, and the wider community.

    Nature of persons' commitment to each other

23. The verbal evidence given by both the applicant and sponsor was detailed, spontaneous and consistent. In the Tribunal’s view the level of detail about each other, their respective daily lives and activities is reflective of an intimate relationship.

24. The Tribunal carefully considered the evidence as to the nature of the commitment of both parties to the relationship. The Tribunal accepts the parties have known each other since 2013, they married in 2014 and the applicant settled in Australia permanently after the death of her father.

25. The verbal evidence taken from both the applicant and sponsor was also sufficient to satisfy the Tribunal that the couple have a mutual committed to a shared life as a married couple to the exclusion of all others and that the relationship between them is genuine and continuing.

26. The visa applicant and the sponsor presented as a united couple that was in step and the supporting evidence, including the narrative regarding how the relationship developed and their shared life as a couple since marriage has led the Tribunal to be satisfied that the applicant meets the requirements in s.5F(2)(b)-(d).

27. 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

28. Therefore, the applicant meets cl 820.211(2) and cl 820.221(1)(a).

    Other matters

    Dependent Child

29. The secondary applicant must meet the definition of 'dependent child' in r.1.05A of the Regulations. Relevantly, that definition states that the dependent child of a person means the child of the person (other than a child who is engaged to be married or has a spouse or de facto partner) who either is under 18 years of age or has turned 18 and is 'dependent' on that person.

30. The Tribunal accepts the secondary applicant is the biological child of the first named applicant. There is no evidence before the Tribunal that the secondary applicant has ever been engaged, married, or in a de facto relationship.

31. As the secondary applicant has turned 18, the question for the Tribunal is whether he was dependent at the time of the application and continues to be dependent now.

32. The term 'dependent' is defined in r.1.05A of the Regulations. It requires that at the relevant time, and for a substantial period immediately before that time, the person who is claiming to be dependent (the 'first person') must be wholly or substantially reliant on the other person (the family head) for financial support to meet basic needs for food, clothing and shelter. Further, the first person's reliance on the family head must be greater than the reliance on any other person or source of financial support to meet those basic needs: r.1.05A(1)(a)(i) and (ii).

33. Alternatively, the applicant must be wholly or substantially reliant on the family head for financial support because they are incapacitated for work due to the total or partial loss of their bodily or mental functions: r.1.05A(1)(b). There is no evidence, and it is not claimed, that the visa applicant is incapacitated for work.

34. Documentary evidence before the Tribunal

35. The Tribunal has before it evidence of the secondary applicant’s studies at University. It is clear on the evidence that the secondary applicant has continually been in fulltime study since leaving high school. The Tribunal also has evidence before it that the secondary applicant is supported financially through the primary applicant and the sponsor.

36. The Tribunal is satisfied that at the time of application and at the time of this decision, the secondary applicant is wholly or substantially dependent upon the primary applicant and sponsor, and therefore continues to meet the definition of dependant in the Regulations. In forming the view, the Tribunal has weighed the evidence before it. Evidence of the regular payments, in the Tribunal's view, tends to support a view that the applicant has always been substantially reliant upon the applicant to an extent greater than his reliance on any other person, or source of support, to meet his basic needs for food, clothing and shelter.

37. For the reasons above, the Tribunal is satisfied that the secondary applicant is a member of the family unit as defined in Regulation 1.12. He meets, and has always met, the definition of dependent child in r.1.05A of the Regulations.

38. Accordingly, the Tribunal finds the secondary applicant was a member of the family unit at the time of application and meets cl.820.311.

39. As the Tribunal has found he continues to be a member of the family unit of the primary applicant at the time of this decision the secondary applicant meets cl.820.321.

40. 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 for both applicants.

    DECISION

41. The Tribunal remits the application for a Partner (Temporary) (Class UK) visa, with the direction that the first named 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)(a) of Schedule 2 to the Regulations.

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

    · cl.820.311 of Schedule 2 to the Regulations and;

    · cl.820.321 of Schedule 2 to the Regulations.

    Cathrine Burnett-Wake
    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).