Gulia (Migration)

[2020] AATA 2202

Gulia (Migration) [2020] AATA 2202 (21 January 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Shweta Gulia

CASE NUMBER:  1727200

DIBP REFERENCE(S):  BCC2015/1764697

MEMBER:Linda Holub

DATE:21 January 2020

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 (Partner) visa:

·cl.801.211 of Schedule 2 to the Regulations

·cl.801.221 of Schedule 2 to the Regulations.

Statement made on 21 January 2020 at 10:13am

CATCHWORDS

MIGRATION – Partner (Residence) (Class BS) visa – Subclass 801 (Spouse) – validly married, with a child together – financial, household and social aspects of relationship – nature of commitment – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), ss 5F, 65

Migration Regulations 1994 (Cth), r 1.15A, Schedule 2, cls 801.211, 801.221

CASE

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 on 24 October 2017 to refuse to grant the applicant a Partner (Residence) (Class BS) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant is a national of India, born in July 1985.  She applied for the visa on 19 June 2015 on the basis of her relationship with her sponsor.  The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.820.211 and cl.820.221.  The delegate considered that the information and evidence provided by the applicant was limited and inconsistent with the claimed duration of her spousal relationship with the sponsor.

3. On the evidence before it, the Tribunal considered it would be appropriate to make a favourable decision on the papers.

Relevant law

1. At that time, Class BS contained only one subclass: Subclass 801 (Partner). The criteria for the grant of this visa are set out in Part 801 of Schedule 2 to the Migration Regulations 1994 (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.

Whether the parties are in a spouse or de facto relationship

1. 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 citizen 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.

2. ‘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 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. Each of the specific matters contained in r.1.15A(3) are effectively questions which must be answered: He v MIBP [2017] FCAFC 206.

CONSIDERATION OF CLAIMS AND EVIDENCE

Are the parties validly married?

1. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship.  The applicant provided the Tribunal with evidence of her having registered her marriage with the sponsor in February 2015.  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 other requirements for a spouse relationship met?

1. The Tribunal has considered the evidence on both the Departmental and Tribunal files, having regard to the relevant Regulations about the financial and social aspects of the relationship, the nature of the household and the commitment the parties have to each other. 

2. The written evidence provided to the Tribunal includes:

   a.    Statutory Declarations (Form 888) from relatives.

   b.    Extensive copies of photographs of the couple, together with their child and other family members.

   c.     Travel itinerary for the couple and their child in November 2017 and October-November 2018.

   d.    A letter regarding the applicant’s tenancy dated 13 November 2017.

   e.    A copy of the Birth Certificate of the couple’s daughter showing she was born in May 2017.

   f.   A copy of the sponsor’s superannuation statement showing he has nominated the applicant as his beneficiary.

   g.    Copies of Commonwealth Bank documents showing the applicant has authority to operate the sponsor’s bank account and that the couple set up a Goalsaver account on 25 October 2017.

   h.    Copies of the sponsor’s and the couple’s bank statements.

   i.   Statutory Declarations – Form 888s from relatives of the couple.  They attest to the genuineness of the relationship and a number provide some insights into the relationship.

10) On the basis of the evidence, the Tribunal is satisfied the parties married in February 2015 and had a child in May 2017.  Further, the Tribunal is prepared to accept the parties have shared financial arrangements and have joint responsibility and support and care of their child.  The Tribunal is satisfied they undertake social activities and travel together and represent themselves to other people as being married.  The Tribunal is satisfied they provide each other with companionship and support and consider the relationship as long term.

11) Having considered all the evidence, the Tribunal is satisfied that the parties have a mutual commitment to a shared life to the exclusion of all others, they are in a genuine and continuing relationship and live together or not separately and apart on a permanent basis.  There is nothing before the Tribunal to suggest the parties are related by family.

12) On the basis of the above the Tribunal is satisfied that the requirements of s.5F(2) are met.

13) Given these findings the Tribunal is satisfied that the requirements of s.5F(2) are met at the time of this decision. Therefore the applicant meets cl.801.211 and cl.801.221.

14) 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 801 visa.

DECISION

15) 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.801.211 of Schedule 2 to the Regulations

·cl.801.221 of Schedule 2 to the Regulations.

Linda Holub
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).