Froneman (Migration)

[2018] AATA 5091

Froneman (Migration) [2018] AATA 5091 (6 December 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Varuschka Venter Froneman

CASE NUMBER:  1714552

DIBP REFERENCE(S):  CLF2013/234549

MEMBER:Helena Claringbold

DATE:6 December 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Partner (Residence) (Class BS) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 801 (Spouse) visa:

·cl.801.221 of Schedule 2 to the Regulations.

Statement made on 06 December 2018 at 12:30pm

CATCHWORDS
MIGRATION – Partner (Residence) (Class BS) visa – Subclass 801 (Spouse) – genuine spousal relationship – three children of the relationship – evidence of mutual commitment to a shared life as husband and wife to the exclusion of all others – decision under review remitted

LEGISLATION
Migration Act 1958, ss 1.15A(3), 5F

Migration Regulations 1994, Schedule 2, cl 801.221

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. On 23 September 2013, Mrs Varuschka Venter Froneman, the applicant, applied for a Partner (Residence) (Class BS) visa.  The application was based on her spousal relationship with Mr Jethro Thor Sangster, the sponsor.

2. On 4 July 2017, a delegate of the Minister for Immigration and Border Protection to refuse to grant the visa. The delegate was not satisfied that the applicant was the spouse of the sponsor. This resulted in the applicant not meeting cl.801.221 of Schedule 2 to the Migration Regulations 1994 (the Regulations) made under the Migration Act 1958 (the Act). This is a review of the delegate’s decision.

3. On 5 December 2018, the applicant appeared before the Tribunal to give evidence and present arguments. She provided the Tribunal with a copy of the delegate’s decision record. The Tribunal also received oral evidence from Mr Sangster.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The Tribunal considered all the evidence in the Department of Immigration and Border Protection’s case file and the Tribunal’s case file and the evidence at the Tribunal hearing.

   ISSUE

6. The issue in the present case is whether the applicant is the spouse of the sponsor as defined in s.5F of the Migration Act 1958.

   BACKGROUND ON THE EVIDENCE

7. In 1991, the applicant was born in Durban, South Africa.  Her parents and three siblings live in South Africa. The applicant first entered Australia in December 2012, as the holder of a tourist visa.

8. In 1990 the sponsor was born in Pretoria, South Africa. His parents and step-parents live in South Africa and Australia.  He has one sibling living in South Africa. He is a citizen of South Africa and the United Kingdom and an Australian permanent resident.

9. In January 2012, the parties met in South Africa.  On 14 June 2013, the parties married in South Africa. On 10 March 2015, the applicant was granted a temporary partner Subclass 820 visa. On 4 July 2017, the partner residence Subclass 801 visa was refused. The parties provided have three children, born in 2013, 2014 and 2016.

   CLAIMS AND FINDINGS

   Are the parties validly married?

10. If the parties are validly married, they may meet the requirements of a spousal relationship, but not a de facto relationship. The applicant provided evidence of her marriage to the sponsor. 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).

    Are the parties are in a spousal relationship?

11. Relevantly to this matter, cl.801.221(2)(c) requires that at the time of this decision, the applicant is the spouse of the ‘sponsoring partner’, who must be an Australian citizen or Australian permanent resident or an eligible New Zealand citizen who was specified in the related Subclass 820 visa application as the spouse or de facto partner of the applicant. In the present case the applicant claims to be the spouse of the sponsor who is an Australian permanent resident and was identified in the Subclass 820 visa application. On the evidence before it, the Tribunal is satisfied that the sponsor is the ‘sponsoring partner’ of the applicant.

12. ‘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).

    Are the other requirements for a spouse relationship met?

13. 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 visa applicant’s and sponsor’s household and their commitment to each other as set out in r.1.15A (3), which is extracted in the attachment to this decision.

14. In relation to the financial aspects of the parties’ relationship, the parties do not have any joint ownership of major assets. The Tribunal accepts the following: the parties’ have liability for the repayment of a bank loan and credit card debt. They are also jointly liable for the lease on their rental property. The parties’ income is derived from the sponsor’s salary and from government family assistance payments. Decisions about financial matters are made jointly and are managed by the visa applicant. All day-to-day household expenses are shared. The Tribunal accepts that the parties pool their financial resources and household expenses.

15. Socially the parties are active; they attend meetings about their religious fraternity and often hold meetings in their home. They also attend events with friends and go to family events and celebrations. They enjoy going camping with their children. The authors of third party statements stated that they had known the parties for a number of years.  Collectively, they refer to attending barbeques with the parties and their children and to holidaying with them. They feel that the parties’ relationship is genuine.  Photographic evidence depicts the parties together and with others at different locations. The Tribunal accepts that the parties present and are recognised as being married to each other and that they undertake social activities together.

16. With regard to the parties’ household, the Tribunal accepts the following; the parties share joint responsibility for the support of their children.  The sponsor is the breadwinner and the visa applicant takes care of the parties’ children and the household. She is responsible for the cooking and other household duties and the sponsor maintains the cars, the garden and does any general maintenance in the household. The Tribunal accepts that the parties share housework.

17. Regarding the parties’ commitment to their relationship, the Tribunal accepts the following; the parties have lived together as spousal partners for more than five years.  During that time they supported each other through many challenges including the birth of their three children.  The parties rely on each other and provide each other with companionship and support.  They plan to spend their lives together and raise their children. They are planning to purchase a home with the assistance of the sponsor’s father. The parties see their relationship as long term.

18. This decision is a synopsis of the evidence before the Tribunal. The Tribunal considered all the evidence individually and as a whole including the Department and Tribunal case files and the evidence pre-and post-hearing and at the Tribunal hearing. The Tribunal is satisfied that the applicant and the sponsor have a mutual commitment to a shared life as husband and wife to the exclusion of all others and that their relationship is genuine and continuing and that they do not live separately and apart on a permanent basis. The applicant therefore meets the requirements of s.5F of the Act. Given these findings, the Tribunal is satisfied that the parties are in a spousal relationship. The Tribunal is satisfied that the requirements of s.5F(2) are met at the time of this decision.

19. The Tribunal is satisfied that at the time of this decision the parties are in a spousal relationship. Therefore the applicant meets cl.801.221(2) of Schedule 2 to the Regulations.

20. Given these findings, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 801 visa.

    DECISION

21. The Tribunal remits the application for a Partner (Residence) (Class BS) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 801 (Partner) visa:

    ·cl.801.221 of Schedule 2 to the Regulations.

    Helena Claringbold

    
    Member

    ATTACHMENT - Extract from Migration Regulations 1994

    1.15ASpouse

    …

    (3)In forming an opinion whether 2 persons are in a married relationship, or a de facto relationship, in relation to an application for:

    (ad)a Partner (Migrant) (Class BC) visa; or

    (ae)a Partner (Provisional) (Class UF) visa; or

    (af)a Partner (Residence) (Class BS) visa; or

    (ag)a Partner (Temporary) (Class UK) visa;

    the Minister must have regard to all of the circumstances of the relationship, including, in particular:

    (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 party to the relationship owes any legal obligation in respect of the other; and

    (v)     the basis of any sharing of day‑to‑day household expenses;

    (b)the nature of the household, including:

    (i)       any joint responsibility for care and support of children, if any; and

    (ii)      the parties’ living arrangements; and

    (iii)     any sharing of responsibility for housework;

    (c)the social aspects of the relationship, including:

    (i)       whether the persons represent themselves to other people as being married or in a de facto relationship with each other;

    (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;

    (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)In forming an opinion whether 2 persons are in a married relationship, or a de facto relationship, in relation to an application for a visa of a class other than a class specified in paragraph (3) (ad), (ae), (af) or (ag), the Minister may have regard to any of the factors set out in subregulation (3).

    (5)If 2 persons have been living together at the same address for 6 months or longer, that fact is to be taken to be strong evidence that the relationship is genuine and continuing, but a relationship of shorter duration is not to be taken not to be genuine and continuing only for that reason.