Davidson (Migration)

[2023] AATA 883

Davidson (Migration) [2023] AATA 883 (30 March 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Michael John McGregor Davidson

REPRESENTATIVE:  Ms Carina Ford (MARN: 9802862)

CASE NUMBER:  1904278

HOME AFFAIRS REFERENCE(S):          BCC2018/1904324

MEMBER:Naomi Schmitz

DATE:30 March 2023

PLACE OF DECISION:  Melbourne

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) and (4) of Schedule 2 to the Regulations.

Statement made on 30 March 2023 at 9:31am

CATCHWORDS
MIGRATION –Partner (Temporary) (Class UK) visa – Subclass 820 – the parties were validly married – the parties were and continue to live together in a genuine and continuing relationship – a longstanding relationship now of over 12 years duration – decision under review remitted   

LEGISLATION
Migration Act 1958, ss, 5F, 65, 360
Migration Regulations 1994, r 1.15, 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 applied for the visa on 1 May 2018 on the basis of 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.

3. The delegate refused to grant the visa on the basis that the applicant did not satisfy cl 820.211(2) and cl 820.221(2) because there was insufficient evidence to be satisfied that the parties were in a genuine and continuing spousal relationship as set out in reg 1.15A of the Regulations.

   Background

4. The applicant is a 64-year-old citizen of the United Kingdom (UK). He first arrived in Australia in 2012 as the holder of a Visitor (Subclass 651) visa, however, did not move to Australia until March 2017. The sponsor is a 58-year-old Australian citizen. She has two children from a former marriage.

5. The applicant and sponsor first met online in March 2008, through an online art group ‘Artmesh’, as they are both visual artists. At the time, the sponsor was residing in Melbourne and employed as a painter/calligrapher teacher at a university in Melbourne. The applicant was residing in the Netherlands and working as a photographer. The couple began communicating online and developed a friendship through their shared interests. Telecommunication records provided to the Tribunal confirm the same.

6. In September 2009, the parties arranged to meet in person whilst the sponsor was undertaking a university research/study tour. The parties met in the UK and the Netherlands and subsequently became close friends. At the time the parties were in spousal relationships.

7. Over the next couple of years, both the applicant’s and sponsor’s relationships came to an end and after some discussion the parties decided in 2011 to pursue a long distance relationship together. Between 2012 and 2017, the applicant flew to Australia six times to spend time with the sponsor and the sponsor flew once to the UK where the applicant had relocated, to spend time with him. This arrangement worked for the parties, as the sponsor had two children one in primary and one in secondary school, and it was easier for the applicant to travel to Australia given the sponsor’s caregiving responsibilities and to minimise disruption to her children’s’ education.[1] The applicant also wanted to spend time in Australia to test if he liked it, given he would need to relocate to Australia for their spousal relationship to continue. The parties claim that over the next five years they spoke to each other every day by FaceTime and various social media before the applicant relocated to Australia.

   [1] Statutory declaration of the applicant dated 9 February 2023

8. The parties married on 17 March 2018 and registered their marriage with the Births, Deaths and Marriages registry on 10 April 2018.[2]

   [2] Department file – BCC20181904324 - Marriage certificate dated 26 April 2018

9. The parties lodged the applicant’s Partner (Subclass 820/801) visa application without the assistance of a migration agent or lawyer. The couple acknowledge now, after receiving legal advice, that they provided limited information to demonstrate their relationship was genuine and continuing at the time of the initial visa application and therefore did not provide sufficient evidence to satisfy the visa eligibility criteria.

10. The delegate who considered the application noted:

    ·         The parties did not provide any financial evidence (i.e. banking records or receipts/invoices) regarding the financial aspects of their relationship, including previous or ongoing pooling of financial resources or sharing of day-to-day household expenses;

    ·         Although the photographic evidence indicated the parties had undertaken some joint social activities together, it did not provide convincing information of the social recognition of the relationship; and

    ·         The visa application overall was heavily based on self-serving claims in statutory declarations that were not corroborated by any independent or credible evidence.

11. Taking into account these matters, the delegate found that the parties were not in a genuine and continuing relationship and therefore the applicant was not the spouse of the sponsoring partner as defined in s.5F of the Act. Accordingly, the delegate found that the applicant did not meet the criteria in cl. 820.211(2) and 820.221 and refused the application.

12. On 25 February 2019, the applicant applied to the Tribunal for a review of the refusal decision. 

13. On 27 January 2023, the Tribunal invited the applicant to provide information regarding the financial aspects of the parties’ relationship, the nature of the parties’ household, the social aspects of the parties’ relationship and the nature of the parties’ commitment to each other.

14. In response legal submissions and a large volume of evidence were provided including a contract of sale, assortment of utility bills, bank statements, motor vehicle insurance certificate, health insurance policy, Ambulance Victoria family coverage insurance policy, the sponsor’s bank statements, photographic evidence, statements from the applicant and sponsor, as well as statutory declarations from family and friends, an assortment of tickets and receipts for social activities, messenger chat logs, and evidence regarding the sponsor’s art books/paintings.

15. On 20 March 2023, the Tribunal wrote to the representative and advised that the Tribunal Member had considered the information and the representative’s submissions and was able to make a favourable decision on the papers without proceeding to a hearing, pursuant to s.360(2)(a) of the Act.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

17. The issue in the present case is whether the applicant is the spouse of the sponsoring partner as defined in s.5F of the Act.  

    Whether the parties are in a spouse or de facto relationship

18. 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.

19. ‘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?

20. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. The parties were married on 17 March 2018.[3] 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).

    [3] Ibid.

    Are the other requirements for a spouse relationship met?

    Financial aspects

21. When the applicant first arrived in Australia in 2017, the sponsor had a pre-existing home in Cheltenham which she shared with her two children and was part of the proceeds of a property settlement from her former marriage.

22. In November 2020, the sponsor purchased a home on behalf of the couple in Seaford. As the applicant was not a permanent resident at the time of the property purchase, it was not possible for him to legally purchase a property. Therefore, while the applicant’s and sponsor’s signatures feature on the purchase contract,[4] the sponsor was made nominee to purchase the home and she holds the mortgage in her name, as sole mortgagor. All rate notices, owners corporation levies, and utilities are in the sponsor’s name.[5] However, both the sponsor and applicant contribute to the payment of the mortgage and household bills as evidenced by their joint bank account records.[6] The exception is the internet connection, which is provided at no cost to the applicant as part of his employment for Aussie Broadband, of which he works permanently from home.

    [4] Contract of Sale

    [5] Assortment of utility bills

    [6] Banking records – BankVic joint account

23. The parties operate four bank accounts with BankVic. Two of these are shared joint bank accounts (in the applicant’s and sponsor’s names). One account is used to pay rate payments, car registration, food, health insurance and socialising. The applicant’s salary is deposited into this account. From time to time, accumulated funds are transferred to the parties’ savings account which the parties both access, making deposits and withdrawals. This account is used for any major one-off expenses, such as furniture and other household acquisitions. The parties each have their own bank accounts. The sponsor’s pay is automatically deposited into her personal account and is linked to various automatic direct debits including mortgage repayments, utilities, and insurance. The sponsor transfers excess money to the parties’ joint bank account.

24. In 2022, the parties obtained a joint personal loan in the sum of $20,000 to undertake landscaping works at their Seaford home. The couple's home insurance is in the sponsor's name as ‘owner’. Insurance is covered through the owners corporation levies and strata insurance is paid through the couple’s joint savings account and the sponsor’s bank account.[7]

    [7] Ibid.

25. The parties share a motor vehicle which was purchased by the sponsor prior to the applicant arriving in Australia. The motor vehicle insurance however lists both the sponsor and applicant as drivers. [8]

    [8] GIO certificate of insurance

26. The applicant and sponsor share private health insurance[9] which covers the sponsor, the applicant, and the sponsor’s two adult children. This is paid from the couple’s joint BankVic account.[10]

    [9] BUPA Joint Family Membership Policy

    [10] Banking records (n 6)

27. The couple’s ambulance coverage, through Ambulance Victoria, jointly lists the applicant and sponsor under a family membership policy.[11]

    [11] Ambulance Victoria Family Membership Policy

28. The parties’ respective taxation returns for several financial years, reflects that the parties have nominated each other as being their respective spouses, indicating that they are declaring themselves as such to key Australian government organisations, namely the Australian Taxation Office (ATO).[12]

    [12] Applicant and sponsor’s Australian Taxation Returns from 2019-2021

29. The Tribunal has carefully reviewed the documents referred to in [21] to [28] above which the Tribunal considers to be credible and independent evidence. The Tribunal in particular places significant weight on the ATO returns, ambulance and health insurance policies and banking records which disclose a financial transaction history consistent with the joint pooling of financial resources and that the account is being used to meet household expenses which reflect a degree of financial commitment and joint responsibility that would be expected of a married couple. Overall, the Tribunal finds the financial aspects of the relationship support a finding that both at the time of application and at the time of decision, the parties were and continue to live together in a genuine and continuing relationship with a mutual commitment to a shared life as husband and wife to the exclusion of all others.

    Nature of the Household

30. The applicant and sponsor do not have any children together. The sponsor as outlined above, now has two adult children who live independently. The applicant and sponsor however pay for the sponsor’s children’s health insurance and from time to time assist them with other expenses.[13]

    [13] BUPA (n 9)

31. The applicant and sponsor have been residing continuously together since March 2017, well before the application was lodged in May 2018. When the applicant arrived in Australia in March 2017, he lived with the sponsor and her son in Cheltenham until February 2021. In February 2021, the applicant, the sponsor and the sponsor’s son moved to the parties’ current residence in Seaford. The sponsor's son has recently moved out to live with friends and be closer to his place of employment. The applicant submitted to the Tribunal a large volume of bills and receipts in the names of the applicant and sponsor, demonstrating their residency at their current address in Seaford which the Tribunal accepts and places positive weight in the applicant’s favour.

32. The applicant and sponsor jointly share the household work. Generally, the sponsor cleans the toilets and bathrooms and the applicant vacuums, dusts and mops the floors along with undertaking the laundry and preparing the parties’ lunches. The sponsor is in charge of preparing the main meals and creates the parties’ meal plans, with the applicant doing the washing up. The sponsor maintains the garden doing the lawn mowing, pruning, weeding and watering, with the applicant providing assistance from time to time.

33. The Tribunal has also had regard to the statutory declaration of the sponsor’s son who provides evidence consistent with the parties’ claims, including his direct observations of the applicant and sponsor residing together and him also being a former resident at the parties’ home.

34. Overall, the Tribunal finds that at both the time of application and at the time of decision, the parties were and continue to live together in a genuine and continuing relationship with a mutual commitment to a shared life to the exclusion of all others.

    Social aspects

35. The parties submitted a large volume of photographic evidence depicting themselves in various social settings including holidays, household activities and socialising with family and friends. Twenty statutory declarations were submitted to the Tribunal stating that the Tribunal ought to be convinced that the relationship is genuine and continuing because the parties have been married for a long time, have undertaken significant and milestone events together, have travelled together, discussed their future plans together and importantly, have provided each other with significant emotional support. The Tribunal notes that the parties are well known by neighbours in both their previous and current addresses (the sponsor being the current chair of the owners corporation and the applicant being a member of a community band in Cheltenham), with various statutory declarations by neighbours. The parties also submitted a large assortment of different event tickets between 2017 and 2022 (i.e. theatre tickets, tickets to the National Gallery and comedy festival) showing that they have an active social life and spend considerable time with each other.

36. The Tribunal has had particular regard to the statutory declarations of the sponsor’s two children. The sponsor’s daughter states she has known the applicant for 11 years. She is of the view that her mother’s relationship is genuine and continuing and accepts the applicant as her mother’s spouse and regards the applicant as her stepfather. She details that she was part of her mother's bridal party, and that she regularly communicates with her mother and the applicant who hosted her twenty-first birthday party. She has observed them making public displays of affection, for example holding hands and kissing and being happy together. The parties work from home together and she has observed them socialise together, including the sponsor supporting the applicant at his cycling events and the applicant supporting the sponsor at her art shows, helping her set up and speak to people about her artwork.[14]

    [14] Statutory declaration of sponsor’s daughter dated 2 March 2023

37. The sponsor’s son states he has known the applicant for a decade and attests to him being his mother's husband for the last five years. He regards their relationship as genuine and continuing and refers to them meeting in 2012 and maintaining communication until the sponsor moved to Australia. When his mother first started her relationship with the applicant, she was going through a tough time as a single mother of two children. He could see the immense joy her daily calls with the applicant would bring her. This same energy was heightened when the applicant would visit Australia on holidays, and they were ‘inseparable’. He states the applicant and sponsor were happy to do nothing but be in the company of each other. When the applicant would return home the contrast in the sponsor’s mood was apparent and saying goodbye was always very hard for both of them. He states they continue to be inseparable since the applicant has moved in with the sponsor. The applicant has shared important occasions including birthdays, Christmas, and Easter and brings out the best in the sponsor. He describes the sponsor’s wedding day as ‘the happiest day of my mum’s life’ and ‘signified the official start of the life my mum deserves’.[15]

    [15] Statutory declaration of sponsor’s son dated 1 February 2023

38. The parties submit that the couple’s relationship has been recognised by a number of government agencies and bodies, including the ATO as outlined in [28]; Births, Deaths and Marriages Victoria; Ambulance Victoria; and insurance company GIO for their motor vehicle insurance. Significantly, the parties have each nominated one another as their enduring power of attorney and in support provided various legal documents which the Tribunal accepts and places significant weight on.

39. The Tribunal has also had regard to various travel and flight itinerary documents and the applicant’s travel movement records [16] which are consistent with his claims of making six trips to Australia prior to relocating to Australia. The Tribunal notes that the parties have undertaken small holidays domestically within Australia including Sydney, The Great Ocean Road, Adelaide and Palm Cove, Queensland. During this time the applicant has met and been accepted into the sponsor’s family including, significantly, the sponsor’s aunt and at that time, the sponsor’s 106-year-old grandmother who welcomed the applicant into their family. The sponsor describes that her grandmother ‘gave [the applicant] the obligatory talk about treating her granddaughter with respect and love’.[17]

    [16] These are also detailed in the delegate’s decision record

    [17] Statutory declaration of the sponsor dated 9 February 2023

1. Overall, the Tribunal is satisfied that the social aspects indicate that the parties are living together and are recognised by their family, friends and the general community as being genuine spouses. The parties are also legally recognised by key Australian government agencies such as the ATO, and in law as their respective power of attorneys.

   Commitment to each other

2. The Tribunal accepts that this is a longstanding relationship now of over 12 years duration. Since meeting online in 2008, the couple pursued a long distance relationship between 2011 and 2017. Despite being geographically separated, the couple maintained daily communication and got to know each other well with the applicant visiting the sponsor multiple times between that period. The sponsor has also travelled to Europe and the UK.

3. In 2017, the applicant showed his commitment to the sponsor and their relationship by relocating from Europe to Australia and selling his property in the Netherlands.

4. In 2018, they furthered their commitment to one another through marriage which was witnessed by a large network of friends and close family members.

5. Since the parties married five years ago, the couple have built a stronger connection and have developed their relationship further. The couple have spent much of their free time together, lived through the COVID-19 pandemic together, renovated and sold the sponsor’s former property, assisted each other through various illnesses, provided each other with emotional support including the sponsor’s divorce and trauma experienced by both parties, been through life’s lows such as redundancy (due to the COVID-19 pandemic), experienced life’s highs including finding new employment, purchasing a new house together (during COVID-19 and within the limitations of the applicants current bridging visa), re-decorated and landscaped the parties’ current home and taken up various hobbies such as learning Argentinian Tango, kayaking, paddleboarding and cycling together. The sponsor has also produced two books based on poems written by the applicant, as well as a pair of paintings based on his poems which are poems expressing the explorations of their relationship. Documentation provided to the Tribunal also shows the parties have planned a holiday in September 2023 and have long-term plans to spend the remainder of their life together.

6. The Tribunal has carefully considered the parties’ statements, the supporting statutory declarations from family and friends and various documentary evidence that was submitted in support. Overall, the Tribunal is satisfied that the parties have displayed the degree of companionship and emotional support which would be expected for parties who have a mutual commitment to a shared life to the exclusion of all others and that the relationship is genuine and continuing. The parties have plans for their future together which showed that they consider the relationship as long term.

   Conclusion

7. 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 at the time of this decision.

8. Having considered the evidence individually and cumulatively, and given the findings above, the Tribunal is satisfied that the requirements of s 5F(2) are met at the time the visa application was made and at the time of this decision. Therefore, the applicant meets cl 820.211(2) and cl 820.221(1) and (4).

9. 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

10. 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) and (4) of Schedule 2 to the Regulations.

    Naomi Schmitz
    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).