DANNIER (Migration)

[2023] AATA 682

DANNIER (Migration) [2023] AATA 682 (3 March 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Nuersulitan DANNIER

REPRESENTATIVE:  Ms Minjia Rao (MARN: 1464628)

CASE NUMBER:  1826927

HOME AFFAIRS REFERENCE(S):          BCC2017/1218604, BCC2017/2638027

MEMBER:Russell Matheson

DATE:3 March 2023

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) of Schedule 2 to the Regulations; and

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

Statement made on 3 March 2023 at 11:25am

CATCHWORDS
MIGRATION –Partner (Temporary) (Class UK) visa – Subclass 820 – parties validly married – mutual commitment to a shared life together – parties live together in a spousal relationship – a genuine and continuing relationship – decision under review remitted  

LEGISLATION
Migration Act 1958, ss, 5F, 65, 359, 360
Migration Regulations 1994, Schedule 2, cls 820.211, 820.221

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 applicant a Partner (Temporary) (Class UK) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant is a male national of China born in March 1991. He applied for the visa on 30 March 2017 based on his relationship with his 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 visa applicant did not satisfy cl 820.11 because the delegate was not satisfied the applicant was the spouse of the sponsor. The applicant seeks review of the delegate’s decision

4. The applicant appeared before the Tribunal on 29 November 2022 to give evidence and present arguments. The Tribunal also received oral evidence from sponsor Ms Jingbei Han, who is the applicant's partner. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

5. The applicant was represented in relation to the review. The representative attended the Tribunal hearing. The representative provided a detailed written submission.

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

   Background

7. The applicant was born in Karamay, Xinjiang China in March 1991 and he arrived in Australia in October 2008 on a student visa. He held several student visas, and the parties lodged a Partner (Subclass 820/801) visa application on 30 March 2017. He has no previous marriages.

8. The sponsor was born in Beijing, China in March 1990, and she is an Australian citizen. The sponsor had previously been married and she became an Australian citizen in November 2015.

9. On 1 July 2015, the applicant and the sponsor first met at Western Sydney University Parramatta campus when resitting an exam. They started dating shortly after meeting and their relationship progressed rapidly. The sponsor was separated from her husband at the time. The parties committed to the relationship in July 2015 and started living together in August 2015. The sponsor divorced her first husband in March 2016. The parties were married in March 2017.

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in the present case is whether the applicant is the spouse of the sponsor as defined in s 5F of the Act.

11. The Tribunal has before it: the applicant’s file from the Department of Home Affairs (the Department); its own file; and a copy of the Department’s decision provided by the applicant to the Tribunal.

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

    Are the parties in a spousal or de facto relationship?

13. 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. In the present case, the applicant claims to be the spouse of the sponsor who is an Australian citizen.

14. ‘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, 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?

15. 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 (Cth) indicating the applicant and sponsor were married in Hurstville, New South Wales, on 25 March 2017. There is no evidence before the Tribunal to indicate 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).

16. 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 sponsor’s household and their commitment to each other, as set out in      reg 1.15A(3).

17. 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 reg 1.15A(3), and the reasons for its decision.

18. The Tribunal had the benefit of the applicant’s and the sponsor’s oral evidence and their written submissions at the hearing and found their evidence to be detailed, consistent and overall, persuasive and 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.

19. 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 genuine and credible witnesses. 

    Are the other requirements for a spouse relationship met?

    Financial aspects

20. 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, especially in relation to major financial commitments, 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.

21. The parties provided a significant amount of additional documentary evidence to the Tribunal regarding the financial aspects of their relationship addressed to their commonly claimed address. They provided ING bank statements for their joint account from 2018 to the present. The ING bank statements provide corroborating evidence of the payment of utility bills, strata payments, health insurance, household bills and day to day living expenses. The parties provided evidence of Access Pay Mastercard’s cards #6755 and # 9015 in individual names linked to the applicant’s salary sacrifice account (Access Pay Account) that are used for grocery shopping, pet expenses and commuting. The parties provided evidence of operating a home loan and offset account with the Commonwealth Bank Australia (CBA). The sponsor gave evidence that she is employed by St George Bank and has her own personal account, and her wages are deposited into this account. She further stated that she then transfers her wages into the ING joint account and the parties transfer money from their ING joint account into the CBA offset account to service their loan payments. 

22. The parties provided evidence of AIRBNB bookings for travel together between September 2018 and September 2019. The applicant and sponsor have nominated each other as 100% beneficiaries of their superannuation. They have also nominated each other as spouses in their tax returns. They also provided evidence of purchasing gifts for each other (watch and iPhone), household appliances and furniture.

23. The applicant and sponsor purchased an apartment off the plan in November 2017, paying a 5% deposit in November 2017 and another 5% deposit in 2018 and successfully paying the remainder of the 20% deposit required by settlement day by working multiple jobs. They moved into their new residence in Mascot in July 2019. The parties gave evidence that the property was registered solely in the sponsors name on advice from their solicitor to waive the stamp duty fee for first time home buyers. The parties gave evidence that they jointly purchased an MG SUV in January 2021 from the surplus accrued in their CBA offset account.

24. Overall, the Tribunal finds that there is a significant amount of evidence before it to demonstrate that the applicant and sponsor have pooled or shared their financial resources at the time of decision. The applicant and sponsor provided detailed and consistent evidence regarding their employment, individual incomes, mortgage payments, savings and payment of household bills, the pooling and sharing of their financial resources and their future financial plans.

25. There is no evidence before the Tribunal that the parties have any joint ownership of real estate although they do have joint equity in a property and a major asset (motor vehicle) and they have joint liabilities (loan/mortgage). The parties have no legal obligations in respect of the other. The applicant has provided significant information regarding the financial aspects of the parties’ relationship in relation to the pooling and sharing of financial resources and the sharing of daily living expenses. The Tribunal places positive weight on this aspect of the relationship.

    Nature of the household

26. The Tribunal has considered the nature of the household, including any joint responsibility for the care and support of children, the living arrangements and daily routine of the parties and the sharing of the responsibility for housework, to form an opinion as to whether the parties are living together and not living separately and apart on a permanent basis.

27. The applicant and sponsor in their written submissions and oral evidence gave detailed and consistent evidence about their living arrangements and the Tribunal found them to be persuasive, genuine and credible. The parties gave evidence that they have been living together since August 2015, never living apart at any time and the Tribunal is satisfied that the parties live together in a spousal relationship. The parties provided evidence of sharing the household duties and responsibilities and individual tasks in detail. They have provided consistent evidence of their living arrangements and details about their daily lives, employment, income, work hours, health issues and social activities. The parties provided documentary evidence and correspondence in individual and joint names indicating that they have lived together for a significant period at their commonly claimed addresses in Zetland and Mascot, New South Wales.

28. The applicant and the sponsor gave evidence they currently don’t have any children as they both planned to have kids when the applicant could settle in Australia. Instead of having children, they have joint responsibility for taking care of their dog, called Lucky, which they have had since January 2016. They claim that Lucky plays a vital role in their lives, and he has given them a new responsibility. The applicant and the sponsor stated that having a pet requires plenty of work, and they shared responsibility of their pet equally.

29. Overall, the Tribunal accepts that the parties live together, and that they have established a joint household and share responsibility for housework. There are no children from their relationship.

    Social aspects

30. 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 opinions of friends and acquaintances about the nature of the relationship, and any basis on which the parties plan and undertake social activities.

31. The parties provided photographs taken in each other’s company, with friends and family and on holidays in the years from 2015 to 2018. The parties provided a significant amount of additional photographic and documentary evidence to the Tribunal taken of themselves with each other, and with friends and family in various social settings, overseas and on interstate travel together. They provided limited statutory declarations from friends and a letter from the sponsor’s mother attesting to the genuineness of the relationship but giving little insight into the inception and development of the relationship over time. The Tribunal places some weight on this evidence as showing that a level of social recognition exists. The parties gave evidence that they have mutual friends in both Australia and China with most of their friends residing in Australia. They further stated that they regularly dine out with their friends and are recognised as being married. They both had an extremely sound knowledge of each other’s families and siblings and individual backgrounds and stated that both their families support their relationship. They also stated that they could not afford a big wedding given their financial constraints and the sponsor’s previous marriage experience. The Tribunal found their explanation plausible given their financial circumstances.

32. The Tribunal is satisfied they plan and undertake joint social activities and represent themselves to others as being married to each other. The Tribunal accepts that the parties’ family and friends believe that they are in a genuine and continuing spousal relationship. The Tribunal is satisfied that there is family support for the relationship.

33. The Tribunal places some positive weight on the social aspects of the relationship.

    Commitment

34. The Tribunal has considered the nature of the parties’ commitment to each other, including the duration of the relationship, the length of 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.

35. The applicant and the sponsor claim to have first met in July 2015 when the applicant went to do a supplementary exam and the sponsor happened to be resitting the same exam at Western Sydney University Parramatta campus. They rapidly entered a committed relationship and started living together in August 2015. The parties were married in March 2017. They have provided a copy of the marriage certificate registered pursuant to the Marriage Act 1961 (Cth) in Hurstville, New South Wales, on 25 March 2017. The Tribunal accepts that the parties are lawfully married and have been in a relationship for over seven years.

36. The parties provided evidence that since meeting and entering a committed relationship and living together they have provided each other with the emotional support, care and companionship that is expected of a married couple. They further stated that they have expressed to their family and friends that they are in a committed relationship and that they themselves believe that their relationship is a long-term one. They further stated that they have purchased their own home together and are planning to have children soon.

37. The parties have articulated in their detailed written submissions how their relationship developed and the emotional support they draw from each other. The applicant described how he helped the sponsor repay her credit card debt and change her reckless spending habits. The sponsor provided emotional support to the applicant when he was grieving after his father suddenly passed away.

38. The parties described their immense empathy and commitment towards each other and described how they have worked together to face and address any problems they have had. They provided strong evidence of caring and supporting each other during highly emotional times and financial hardship during the COVID-19 lockdown when not working, and they also expressed their love for each other. They stated that they provide comfort, and emotional and physical support to each other in all aspects of their lives. The applicant explained in detail the emotional and physical support he provided to the sponsor who was studying for a business degree online during the pandemic. The Tribunal found their oral evidence to be very genuine and credible.

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

40. 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 together.

41. The Tribunal is satisfied the applicant and the sponsor derive a strong degree of companionship and emotional support from each other that is commensurate with a couple being in a genuine and continuing relationship. The Tribunal is satisfied the couple view their relationship as a long-term one.

42. 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

43. The Tribunal is satisfied, having had regard to the totality of the circumstances and the evidence provided at the hearing, 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 genuine and continuing. The Tribunal is satisfied that they live together and not separately and apart on a permanent basis. Having considered all the evidence and the circumstances of the relationship as detailed above, the Tribunal is satisfied the parties were in a spousal relationship at the time of application.

1. The Tribunal is satisfied that the sponsor is not prohibited from being a sponsoring partner and continues to sponsor the applicant. The Tribunal is satisfied that the sponsor, at the time of the visa application and decision, was an Australian citizen who had turned 18.

2. The applicant’s movement records provide evidence of him having been the holder of a Student (Class TU) (Subclass 500) visa at the time of application, which was valid until 31 August 2017. He held this substantive visa upon applying for the Partner (Temporary) (Class UK) (Subclass 820) visa on 30 March 2017. As the applicant held a substantive visa at the time of application, further requirements in cl.820.211(2)(d) need not be met.

3. Based on the above, the Tribunal is satisfied that the requirements of s.5F(2)(b)-(d) of the Act were met at the time the visa application was made and are met at the time of this decision.

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

5. Given the findings above, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for a Subclass 820 visa.

   DECISION

6. 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; and

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

   Russell Matheson
   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).