Deesse (Migration)

[2018] AATA 5305

Deesse (Migration) [2018] AATA 5305 (15 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Marie Bianca Joanna Deesse

CASE NUMBER:  1726938

DIBP REFERENCE(S):  BCC2016/1096917

MEMBER:P. Maishman

DATE AND TIME OF

ORAL DECISION AND REASONS:          15 October 2018 at 1:12 pm (WA time)

DATE OF WRITTEN RECORD:                22 November 2018

PLACE OF DECISION:  Perth

DECISION:The Tribunal remits the decision under review with the direction that the applicant meets clauses 820.211(2) of schedule 2 of the Regulations and clause 820.221(1) of schedule 2 of the Regulations.

Statement made on 22 November 2018 at 5:36pm

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – genuine spousal relationship – in a relationship for three years and married for two and a half years – speed and progression of relationship – joint residential lease – joint responsibility for care of their son – credible witnesses – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5F, 65
Migration Regulations 1994 (Cth), r 1.15A; Schedule 2, cls 820.211, 820.221

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 12 October 2017 to refuse to grant the visa applicant a Partner (Temporary) (Class UK) Subclass 820 visa under the Migration Act 1958 (the Act).

2. At the hearing on 15 October 2018 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

   STATEMENT OF DECISION AND REASONS

3. The applicant applied for the visa on 14 March 2016 on the basis that she was in a relationship with Mr Crichton her sponsor. At the time class UK visas contained only one subclass, subclass 820 was a temporary partner visa. The criteria for the grant of the visa are set out in part 820 of schedule 2 to the Migration Regulations of 1994, that I will refer to them as the Regulations.

4. The primary criteria must be satisfied by Ms Deesse. The delegate of the Minister for Immigration refused to grant the visa on 12 October 2017 on the basis that Ms Deesse did not satisfy clause 820.211(2)(a) of schedule 2 of the Regulations because the delegate considered there was insufficient information to demonstrate that the applicant was the spouse of Mr Crichton the sponsor.

5. The history of her visa application can summarise from the delegate’s decision record, which was provided to the tribunal by Ms Deesse.  Ms Deesse is a 32 year-old Mauritian citizen.  She arrived in Australia in 2008 and held various student visas over the period to 15 March 2016.  Mr Crichton is a 39 year-old Australian citizen.  Ms Deesse applied for the partner visa the subject of this application on 14 March 2016.

6. The tribunal had before it the department’s file containing the visa application submitted to the department by Ms Deesse and considered by the delegate.  Ms Deesse first met the sponsor in July 2010.  They did not stay in touch but became reacquainted and committed to a shared life together to the exclusion of all others in July 2015.

7. They were married on 8 March 2016.  On 13 June 2017 the department sought further documentation in support of a visa application.  Ms Deesse provided some of the requested information but at the time of the delegate’s decision on 12 October 2017 had not provided sufficient documentation or evidence to substantiate her relationship claims with Mr Crichton.

8. Ms Deesse applied for a review of the decision to this tribunal on 2 November 2017 and provided a copy of the delegate’s decision record.  The tribunal requested further information from her and Ms Deesse provided residential leases for properties in Victoria Park and South Hedland, various utility invoices, travel documents, photographs of her and Mr Crichton’s wedding, unsigned statements from herself and Mr Crichton, and a number of ANZ bank transaction statements.

9. At hearing Ms Deesse provided a statutory declaration from Ms Siobhan Miller and an unsworn statutory declaration from Shannon Ferrars.

10. Ms Deesse appeared before the tribunal on 15 October 2018 to give evidence and present arguments.  The tribunal also received oral evidence from Mr Bernard Crichton the sponsor.  Ms Deesse and Mr Crichton gave evidence separately at the hearing.  The tribunal questioned them about their relationship history, development of their current relationship, knowledge of each other’s backgrounds and family relationships, the financial, social and household aspects of their relationship, and the nature of their commitment to each other.

11. Their responses were generally consistent, differing enough to indicate that they were providing authentic responses from their own perspective and knowledge.  The tribunal found that the applicant and sponsor, Ms Deesse and Mr Crichton, to be credible and honest witnesses and accepts their oral evidence on that basis.

12. The issue for the tribunal to decide is whether Ms Deesse and Mr Crichton are in a spousal married relationship or in a de facto relationship.  The first question for the tribunal is to decide whether the parties were in a spousal or de facto relationship.  Clauses 820.211(2)(a) and 820.212(1) require that at the time the visa application is made and at the time of this decision the applicant is the spouse or de facto partner of an Australian citizen.

13. In the present case Ms Deesse claims to be the spouse of Mr Crichton who has provided the department a copy of his Australian passport.  The tribunal is satisfied that Mr Crichton is an Australian citizen.

14. Spouse is defined in section 5F of the Act and provides that a person is the spouse of another person 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.  There must be a mutual commitment to a shared life as a married couple to the exclusion of all others.  Their relationship must be genuine and continuing and they must live together and not separately and apart.

15. In forming an opinion about the matters I must have regard to the circumstances of the relationship that are contained or that are set out in regulation 1.15A(3) of the Regulations.

16. The tribunal has seen a copy of the marriage certificated signed by the registrar of births, deaths and marriages in Western Australia showing the applicant Ms Deesse and the sponsor Mr Crichton were married on 8 March 2016.  There is nothing to suggest 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 section 5F(2)(a).

17. The tribunal turned its mind to the criteria set out in regulation 1.15A.  No documentary evidence of their relationship was submitted with the primary application to the department.  The tribunal had substantially more evidence before it.

18. Evidence provided by Ms Deesse and Mr Crichton along with their statements to the tribunal say they started living together about five or six months are reacquainting in August 2015.  They married on 8 March 2016 before their close friends and family.  Ms Deesse’s parents could not make it to the wedding but she and Mr Crichton are planning to renew their vows in the near future either in Mauritius or in Albany.  Ms Deesse’s family are planning a 10 day holiday to attend in 2020.

19. In October 2016 their son was born.  A copy of the birth certificate has been provided to the tribunal.  In March 2017 Mr Crichton moved to South Hedland to obtain employment.  Ms Deesse and their son followed shortly afterwards.  Ms Deesse and Mr Crichton and their son moved to Albany in April 2018.

20. The tribunal considered the financial circumstances of Ms Deesse and Mr Crichton.  Ms Deesse and Mr Crichton do not jointly own any real estate or other major assets.  They do not hold any joint liabilities.  The residential lease for the property in Victoria Park is for the period from April 2016 to April 2017 and stipulates that it is for a maximum of three occupants.  The lease lists Ms Deesse as the first tenant, Mr Crichton as the second tenant and a non-related third party as the third tenant.

21. The lease agreement is signed by Ms Deesse and Mr Crichton has signed the agreement as witness to Ms Deesse’s signature.  Ms Deesse and Mr Crichton gave evidence that they support each other financially depending on who was working and who is not working at the time and they share their resources.  Ms Deesse is the beneficiary of Mr Crichton’s superannuation account.

22. The tribunal is satisfied that Ms Deesse and Mr Crichton work together with their available financial resources and share the day to day household expenses and that their financial arrangements are indicative of people in a married relationship.

23. Ms Deesse and Mr Crichton gave evidence about who was responsible for the care and support of their son.  Both Ms Deesse and Mr Crichton are responsible for the care of their son and the tribunal accepts that to be so.

24. Ms Deesse tends to most of the household chores and the cooking.  Ms Deesse and Mr Crichton spent most of the time at each other’s houses between August 2015 when they met and March 2016 when they got married.

25. Once they were married Mr Crichton moved in with Ms Deesse in Victoria Park.  Shortly after the birth of their child in October 2016 Mr Crichton then moved to South Hedland for work reasons.  Ms Deesse and the child remained in Perth for a short time to tend to their affairs and joined him after about seven weeks.  Ms Deesse and Mr Crichton and their son all moved to Albany together in April.

26. In Albany they share a three bedroom house and sleep in the same bed.  And the tribunal finds that Ms Deesse and Mr Crichton are jointly responsible for the care of their son.  They live together as a married couple would and have shared their accommodation since they were married.  They undertake the housework according to their individual skills.  The tribunal is satisfied that the nature of Ms Deesse and Mr Crichton’s relationship is indicative of people in a married relationship.

27. The tribunal considered the social aspects of Ms Deesse and Mr Crichton’s relationship.  Ms Deesse and Mr Crichton said they have had some trouble getting people who could attest to their relationship to arrange to complete the requisite forms.  The tribunal accepts their evidence that Ms Deesse’s parents, friends, extended family are all of the opinion that they are a married couple and also accepts the evidence of Mr Crichton’s family acknowledge their relationship and know Ms Deesse to be his wife and attended the wedding.

28. The tribunal considers the form 888 statutory declarations to support Ms Deesse and Mr Crichton’s statements in this regard.  The tribunal is also mindful of the number of photographs of Ms Deesse and Mr Crichton’s wedding.

29. The tribunal finds that the social aspect of Ms Deesse and Mr Crichton’s relationship are indicative of a married relationship.  The tribunal considered the nature of Ms Deesse and Mr Crichton’s commitment to each other.  The tribunal had the advantage of observing Ms Deesse and Mr Crichton give their evidence separately as well as to observe their interaction together.  Ms Deesse and Mr Crichton have been in a relationship for three years and married for two and a half years.

30. The tribunal questioned the speed and the progression of the relationship and neither party hesitated in their response, that the relationship was just right for them.  The tribunal accepts this to be so.

31. Ms Deesse and Mr Crichton both describe that they keep each other satisfied emotionally and mentally.  They both see their relationship as being long term.

32. The tribunal finds that Ms Deesse and Mr Crichton are in a long term relationship.  They have lived together since 2016 and provide a companionship and emotional support to each other and they both see their relationship as being long term.  The tribunal considers the nature of Ms Deesse and Mr Crichton’s commitment to each other as indicative of a married relationship.

33. Considering the matters contained in regulation 1.15A the tribunal finds that Ms Deesse is in a married relationship with Mr Crichton.  They have a mutual commitment to a shared life together as a married couple to the exclusion of all others.  The relationship between them is genuine and continuing and they live together.

34. On the basis of what I have said, the tribunal is satisfied that the requirements of section 5F(2) are met at the time that the application was made and the time of this decision.

35. There is no evidence that Mr Crichton is prohibited under subclause 2(b) from being a sponsoring partner and Ms Deesse meets the requirements of clause 820.211(2)(a).  Mr Crichton has completed the requisite sponsorship form and the tribunal accepts that the applicant Ms Deesse is sponsored and so meets clause 820.211(2)(c).  And as the applicant was the holder of a substantive student visa clause 820.211(2)(d) does not apply.  Therefore, Ms Deesse meets the criteria of clause 820.211(2) at the time of the application and meets clause 820.221 at the time of this decision.

36. 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. The tribunal remits the application for a partner temporary class UK visa with a direction that the applicant meets the following criteria for a subclass 820 partner temporary visa, clauses 820.211(2) of schedule 2 of the Regulations and clause 820.221(1) of schedule 2 of the Regulations.

    DECISION

37. The Tribunal remits the decision under review with the direction that the applicant meets clauses 820.211(2) of schedule 2 of the Regulations and clause 820.221(1) of schedule 2 of the Regulations.

    P. Maishman
    Member