Gatsos (Migration)

[2019] AATA 6067

Gatsos (Migration) [2019] AATA 6067 (24 October 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Dimitrios Gatsos

CASE NUMBER:  1718402

HOME AFFAIRS REFERENCE(S):          BCC2016/3338990

MEMBER:David Crawshay

DATE OF ORAL DECISION:  24 October 2019

DATE OF WRITTEN STATEMENT           30 October 2019

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 of Schedule 2 to the Regulations.

Statement made on 30 October 2019 at 9:23am

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Spouse) – genuine and continuing relationship – joint bank account – pooled financial resources – shared household responsibilities and expenses – joint responsibility of child – parties represent themselves to others people as being married to each other – companionship and emotional support – mutual commitment to shared life as married couple to exclusion of all others credible witness – decision under review remitted

LEGISLATION
Marriage Act 1961 (Cth)
Migration Act 1958 (Cth), ss 5, 65
Migration Regulations 1994 (Cth), r 1.15A, Schedule 2, cl 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 Immigration and Border Protection to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant is Mr Dimitrios Gatsos, 29, who is a Greek citizen.

3. The applicant applied for the visa on 8 October 2016 on the basis of his relationship with his sponsor, Ms Dessi Pavlidis, 27. 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 (the Regulations).

4. The delegate refused to grant the visa on the basis that the applicant did not satisfy cl.820.211(2)(a) because the he did not meet the definition of spouse under s.5F of the Act.

5. The applicant appeared before the Tribunal on 24 October 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor, as well as Mrs Angie Pavlidis, who is the sponsor’s mother.

6. The Tribunal hearing was conducted with the assistance of an interpreter in the Greek and English languages.

7. The applicant was represented in relation to the review by his registered migration agent.

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

   BACKGROUND

9. The parties claim to have met at a party on 15 August 2015 at a town called Kelli Florina in the northern part of Greece while the sponsor was on a one-month holiday there with her mother. Kelli is the hometown of the sponsor’s family. The parties purportedly met at a bar there called Taskas, the applicant having made the short journey from his hometown of Edessa. The parties state that the sponsor saw the applicant and asked after her, and the two met briefly that night.

10. Afterwards, the applicant sought out the sponsor on Viber and the two started chatting via that application. A couple of days later the parties purportedly met again in person, although the sponsor claims she was very shy. The parties claim to have communicated for the rest of the duration of the sponsor’s trip before she left to return to Australia on 12 September 2015. At this stage, the parties state that they regarded each other as friends.

11. According to the parties, their communications continued after the sponsor arrived back in Australia, and they apparently spoke to each other once or twice-a-day every day on Viber and Facebook Messenger. It was during this time that the parties claim they became closer to each other.

12. The sponsor made a further trip to Greece the next year in June and July 2016. During this time the sponsor claims to have stayed at her family home in Kelli and also with the applicant and his family in Edessa. The sponsor’s mother, who accompanied her daughter on the trip, claims to have spoken to the applicant’s parents in early-July 2016. Shortly thereafter, the parties became engaged and a party was held at a church where many friends and family from both sides attended. The applicant then made an application for an Electronic Travel Authority to come to Australia and it was granted. The parties returned to Australia together with the sponsor’s mother and claim to have begun living at an address in Preston which is owned by the sponsor’s mother.

13. On 1 October 2016, the parties were married at Old Treasury Buildings in the city. The parties claim that the attendees comprised eight people. The parties claim that all attendees went to a pizzeria in Carlton to celebrate. The parties claim to have spent the night at a hotel in the city as a honeymoon. At this time, the sponsor was pregnant.

14. The visa application was made on 8 October 2016.

15. On 23 April 2017, the sponsor gave birth to a daughter, Isabella.

16. The parties travelled to Greece in December 2018 and January 2019 for a period of around one month. They claim to have celebrated Greek Christmas with the applicant’s family.

    CONSIDERATION OF CLAIMS AND EVIDENCE

17. The issue in the present case is whether the applicant is the spouse under 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 r.1.15A(3), which is extracted in the attachment to this decision. Each of the specific matters contained in r.1.15A(3) is effectively a question which must be answered: He v MIBP [2017] FCAFC 206.

    Are the parties validly married?

20. 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). The Tribunal has been provided with a certificate registered on 11 October 2016 in respect of a marriage which took place on 1 October 2015 (refer Tribunal folio 41). This certificate stated that the marriage was solemnised in accordance with the Marriage Act 1961.

    Are the other requirements for a spouse relationship met?

21. The Tribunal notes the paucity of evidence that was available to the delegate at first instance. Since that time, evidence has been submitted to the Tribunal that goes to directly addressing the four matters for consideration under subreg.1.15A(3) – namely, the financial aspects of the relationship, the nature of the household, the social aspects of the relationship and the nature of the parties’ commitment to each other.

    Financial aspects of the relationship

22. The Tribunal has considered any joint ownership of real estate or other assets, any joint liabilities, the extent of pooling of financial resources, any legal obligations owed to the other party, and any sharing of day-to-day household expenses in assessing the financial aspects of the relationship.

23. The parties do not claim to have any joint ownership of real estate or other assets, nor do they bear any joint liabilities. The parties gave evidence that they have always lived with the sponsor’s mother at the Preston address. The parties use two cars – a Toyota RAV4 CV and a Nissan Dualis. The Toyota is purportedly in the name of the sponsor and the Dualis in the name of the sponsor’s mother. The Tribunal accepts this evidence but gives it no weight in its consideration of the financial aspects of the relationship.

24. The parties claim to both have separate bank accounts with the Commonwealth Bank, along with one joint account – a Smart Access account. The parties both said at hearing that the applicant’s salary as a cabinet-maker is deposited into the parties’ joint account since the middle of 2018. Bank statements from that account confirm weekly transfers of a set sum of money from the applicant’s employer. Before this date, the applicant said that he was paid into the joint account from his job as a labourer and brick-layer. The applicant is currently occupied with home duties, but gave evidence that she was previously employed as a childcare worker until the birth of her daughter. Her salary during this time was deposited into her account. The joint account also appears to be used regularly for small transactions which are paid for using separate debit cards. The Tribunal accepts through this evidence that the parties have attempted to pool their resources through the use of this account. It gives this aspect significant weight.

25. As regards the question of whether the parties owe legal obligations in respect of the other, the applicant has submitted a superannuation nomination dated 30 July 2018 which designates the sponsor as his binding beneficiary. At hearing, the applicant confirmed that this nomination is still in force. While the Tribunal recognises that these documents can be changed with relative ease, it nonetheless accepts that it still operates based on its finding that the parties gave credible evidence. The Tribunal gives this evidence moderate weight.

26. Turning to the sharing of household expenses, the parties gave consistent evidence that they pay for groceries using the joint account. The applicant would pay for the costs of entertaining, such as when the parties go out for a meal. Utilities are paid for by the sponsor’s mother. The applicant states that he tries to make purchases for the house where he can. The Tribunal accepts this evidence of the sharing of household expenses and gives it some weight.

    Nature of the household

27. The Tribunal has considered any joint responsibility for the care and support of children, the parties’ living arrangements and any sharing of housework in assessing the nature of the household.

28. The parties have one child in common – a two-and-a-half year old girl called Isabella. The parties gave consistent evidence as to their joint responsibility for her care and support which the Tribunal accepts. It gives this evidence significant weight.

29. As to the parties’ living arrangements, they claim to have lived at the same address in Preston from the time the applicant arrived in Australia in July 2016 until today. Specifically, the parties and their daughter live in the same room. In support of this claim, the parties offered very little documentary evidence in the form of mail addressed to one or both of them at this address. However, having questioned the applicant as to the detailed particulars of the address, and having had the benefit of interviewing the sponsor’s mother (who is the owner of that address), the Tribunal accepts that the parties lived together at the address during the claimed period. It gives this evidence significant weight in finding that the parties lived and continue to live together.

30. The parties gave consistent evidence regarding the division of housework among them. The sponsor assumes the duties during the week – including cooking and cleaning – while the applicant is at work. On the weekends, the applicant tends to the garden and engages in general maintenance tasks. The Tribunal accepts this evidence and gives it moderate weight.

    Social aspects of the relationship

31. The Tribunal has considered whether the parties represent themselves to other people as being married to each other, the opinion of friends and acquaintances about the nature of the relationship, and any basis on which the parties plan and undertake joint social activities in assessing the social aspects of the relationship.

32. The parties were married at the Old Treasury Building in October 2016. It was a modest affair, with the sponsor’s mother and partner, her brother, her uncle and two cousins in attendance. The sponsor’s mother at hearing said that the sponsor’s maternal grandparents were unable to attend due to her grandmother being confined after suffering a medical condition. The parties and the attendees then celebrated a reception at a restaurant in Carlton in the presence of these guests. When asked why their wedding was not larger and more elaborate, and why they had not invited friends, both parties responded that they were happy to only have family attend. The Tribunal notes that the parties claim to have celebrated an engagement in front of many more people in Greece, comprising family, relatives and friends of both parties. The Tribunal was able to view photographs of the engagement party in the Tribunal file before hearing as well as several others on the sponsor’s phone at hearing and is satisfied that many people were in attendance. The Tribunal accepts that the parties represented themselves to their family, friends and others as being married to each other through these events. It gives this evidence substantial weight.

33. The parties submitted three Form 888 statutory declarations from people associated with the sponsor. Ms Konstandina Molymis, who stated that she had known the sponsor for 20 years, simply said that she believed the parties are happily married because the applicant loves his wife and daughter. Mr Anthony Paraskevakis, a friend of the sponsor’s brother, provided a second declaration. Within it, he said that he truly believed the parties’ relationship is genuine and continuing because they have a daughter together with whom the applicant has an “amazing connection”. According to Mr Paraskevakis, the applicant is a true family man who would do anything to support his family.

34. A third declaration comes from Mr Arthus Angeliidis, who is a neighbour of the sponsor’s family. In relation to the genuineness and continuity of the relationship, he states as follows:

    There is no doubt in my mind that there (sic) relationship is real & a beautiful one at that! I see snipets (sic) of there (sic) daily interraction (sic) and there (sic) always loving & caring towards one another.

    There (sic) beautiful baby girl has not only brought joy to them but also puts smiles on the faces of other surroundin (sic) neighbours.

35. The Tribunal accepts that these declarations, to a greater and lesser extent, provide evidence from friends and acquaintances as to the nature of the relationship. This evidence, coupled with compelling evidence given by the sponsor’s mother at hearing about the parties’ relationship which the Tribunal also accepts, is given substantial weight by the Tribunal in its consideration of whether the parties’ relationship is genuine and continuing.

36. The parties gave evidence to the Tribunal that their lives revolve around each other and their daughter. The applicant stated in a declaration from September 2018 that “my wife and daughter mean the world to me, so all of my free time is spent with them”. The sponsor confirmed this by saying that they are restricted in the amount of time they can spend socialising with friends by raising their daughter. Several photographs of the parties were submitted and in each the parties appear either with each other by themselves or with their daughter. The Tribunal accepts that, in this context, the parties are constrained in their ability to plan and undertake joint social activities, and it gives this aspect no negative weight.

    Nature of parties' commitment to each other

37. The Tribunal has considered the duration of the parties’ relationship, the length of time they have lived together, the degree of companionship and emotional support they draw from each other and whether they see the relationship as long-term in assessing the nature of the parties’ commitment to each other.

38. The parties claim to have met in August 2015 in Northern Greece. The parties claim to have been in regular communication with each other during the nine months that they were separated from each other via Viber and Facebook Messenger. The parties presented as genuine, and the Tribunal considers that they gave cogent and credible evidence that it found persuasive. It has no hesitation in accepting their evidence as given, including in relation to the details surrounding the inception and formation of their relationship, as well as the manner and frequency of their communications during the nine months that they were apart in 2015 and 2016. This communication provided the basis for the strengthening of their relationship in spite of living in separate countries. By the time the parties met again in June 2016, they considered themselves in a close relationship with each other. This means that, at the very least, the parties were in a relationship for roughly four months at the date of application. As at the date of this decision, the parties have been in a relationship for over three years. The Tribunal gives this evidence moderate weight.

39. Within this time, the parties claim (and the Tribunal accepts) that they have lived together at the house of the sponsor’s mother since July 2016, or for over three years as at the date of this decision. The Tribunal also gives this evidence substantial weight.

40. The parties displayed a detailed and intimate knowledge of each other, whether it be their daily lives (including their employment), their families and other facets of their lives. Moreover, they appear to offer each other a degree of emotional support. For the sponsor, the applicant proved to be a support through a period where she admitted to suffering a form of depression and stress which resulted in temporary hair loss. For the applicant, the sponsor provided strength to him while he attempted to adapt to life away from his parents and family (including his identical twin brother), to whom he is close, in Greece. The Tribunal acknowledges and accepts this evidence.

41. The parties’ daughter is the most obvious manifestation of their commitment to each other and to their family. To the applicant, she is an angel, and the sponsor’s mother remarked at hearing on how attached she is to the applicant. The parties’ concern for their daughter during the hearing was obvious. The Tribunal accepts this evidence.

42. The parties became visibly upset when asked what would be the effect of a visa refusal. To the applicant’s credit, he had made plans in case this were to occur – he would take his family back to Greece and reapply for the visa over there. The sponsor was more emotional – she simply stated that she did not want the applicant to have to return to Greece. The Tribunal accepts the genuineness of this testimony from the parties.

43. For all of the above reasons, the Tribunal finds that the parties draw companionship and emotional support from each other and gives this aspect significant weight in its overall consideration of whether the parties have a mutual commitment to a shared life as a married couple to the exclusion of all others.

44. Turning to long-term plans, the parties said that they would like to add to their family, as well as find a place where they could live together. They claimed at hearing that the sponsor’s mother had plans to demolish their house in Preston and build a couple of townhouses in their place – one for her and her son, the other for the parties and their daughter. The sponsor’s mother informed the Tribunal that these plans are well-advanced, and that the local council will soon be in a position to approve the plans. Based on the consistency of the answers given by the parties and by the sponsor’s mother, the Tribunal accepts this evidence. There is clearly a financial and emotional investment in the parties’ relationship by the sponsor’s mother, who has been an important figure in the parties’ lives, and in the eyes of the Tribunal this serves to strengthen their commitment. The Tribunal gives this evidence substantial weight in finding that the parties see their relationship as long-term.

    CONCLUSION

1. 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. The parties have a mutual commitment to a shared life as a married couple to the exclusion of all others, their relationship is genuine and continuing, and they live together.

2. Therefore the applicant meets cl.820.211(2) and cl.820.221.

3. 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

4. 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 of Schedule 2 to the Regulations.

   David Crawshay
   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).