Gurung (Migration)

[2022] AATA 4323

Gurung (Migration) [2022] AATA 4323 (7 September 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Khusu Gurung

VISA APPLICANT:  Mr Sushil Limbu

REPRESENTATIVE:  Mrs Elaine Nunez (MARN: 1172914)

CASE NUMBER:  1833212

HOME AFFAIRS REFERENCE(S):          BCC2018/1968379

MEMBER:Cheryl Cartwright

DATE:7 September 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 309 visa:

·cl 309.211(2) of Schedule 2 to the Regulations

·cl 309.221 of Schedule 2 to the Regulations

Statement made on 07 September 2022 at 12:34pm

CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – genuine spousal relationship – financial aspects – transfer of money on a fortnightly basis – nature of the household – limited opportunities for cohabitation since marriage – social aspects – nature of the commitment – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5F, 65
Migration Regulations 1994 (Cth), r 1.15A; Schedule 2, cls 309.211, 309.221

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 (Provisional) (Class UF) visa under s 65 of the Migration Act 1958 (Cth) (the Act). The applicant applied for the visa on 6 May 2018. The delegate refused to grant the visa on 11 September 2018.

2. The delegate made the decision on the basis that there was insufficient evidence to demonstrate that the relationship between the visa applicant and the review applicant have a mutual commitment to a shared life as husband and wife. The delegate decided there was insufficient evidence provided to satisfy the criteria for the grant of the visa under the Migration Regulations 1994 (Cth) (the Regulations).

3. The applicant appeared before the Tribunal on 30 August 2022 to give evidence and present arguments.

4. At the hearing the Tribunal received new evidence and is satisfied that the criterion is met and has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Background

5. The visa applicant is a 30-year-old male who resides in Nepal. The review applicant is a 27-year-old female who was born in Nepal and migrated to Australia on 7 February 2012 on a refugee and humanitarian visa, granted as dependant applicant on 19 December 2011. They met on Facebook in 2013, communicated long distance until meeting in person in 2017. The visa applicant and review applicant were married in Nepal on 4 February 2018. A copy of the marriage certificate is on the Department’s file.

6. The delegate found there was insufficient evidence of financial commitments that would be indicative of a spousal relationship, there was no evidence of future plans as a couple, and little evidence that they presented themselves to family and friends as being in a committed relationship.

   Tribunal proceedings

7. In making its findings the Tribunal has considered documents contained in the Department and Tribunal files and oral evidence provided by the visa applicant and review applicant at the hearing.

8. The parties gave coherent oral evidence about the circumstances in which they met, the development of their relationship and their current living arrangements. The Tribunal found them to be credible and was satisfied it could rely on their evidence in making findings of fact.

9. At the time of hearing the parties gave clear and broadly consistent evidence as to their relationship. The Tribunal accepts the history of the relationship as given by the parties.

10. The Tribunal notes that, as soon as COVID restrictions were lifted, the review applicant travelled to Nepal in November 2021 to be with the visa applicant and his family.

11. The parties stated that they travelled within Nepal to Pokhara and Mustang at the beginning of this visit, but when the review applicant contracted COVID they stayed at the visa applicant’s home in his village. The review applicant’s flight had to be postponed from February 2022 until March 2022.

12. It was during this visit that review applicant became pregnant. The baby is due in November 2022.

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. The issue in the present case is whether the parties were in a genuine and continuing spousal relationship at the time of application and whether they continue to be in that relationship at the time of decision.

    Whether the parties are in a spouse or de facto relationship

14. Clause 309.211(2) and 309.221 require that at the time the visa application was made, and at the time of this decision, the visa 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 visa applicant claims to be the spouse of the review applicant who is an Australian citizen.

15. ‘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 review applicant’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.

    Are the parties validly married?

16. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. There is nothing in the information before the Tribunal to cast doubt on the validity of the parties’ marriage 4 January 2018 and the Tribunal accepts it is a valid marriage. Consequently, in the absence of any evidence to the contrary, the Tribunal finds that 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?

    Financial

17. Any joint ownership of real estate or other major assets, any joint liabilities, the extent of any pooling of financial resources, whether one person in the relationship owes any legal obligation in respect of the other and the basis of any sharing of day-to-day household expenses are relevant factors to consider when assessing the financial aspects of the relationship.

18. There is no evidence before the Tribunal that, at either at the time of application or at the time of this decision, the applicant and the sponsor jointly owned or own real estate or other major assets; that they had or have any joint liabilities; or that one person in the relationship owed or owes any legal obligation in respect of the other.

19. The review applicant lives in a house with her mother and sisters. She is employed full time at a caravan factory, earning between $800 and $950 per fortnight and transfers approximately $200 per fortnight to the visa applicant.

20. The Tribunal accepts that at the time of application and at the time of decision the parties do not have a joint bank account; however, they provided credible evidence at the hearing that financial matters are discussed and planned as a couple. Both parties demonstrated a reasonable knowledge of each other’s employment and income.

21. The Tribunal considers that the transfer of money on a fortnightly basis demonstrates a level of shared finances as required by r.1.15A(3)(a)(v).

22. The Tribunal accepts with the parties living in separate countries it is difficult to provide evidence of shared finances. The Tribunal gives some weight to the limited level of shared finances at the time of application and at the time of decision.

    Nature of the household

23. Any joint responsibility for the care and support of children, the living arrangements of the persons and any sharing of the responsibility for housework are relevant matters to be considered when assessing the nature of the household.

24. The Tribunal accepts that since their marriage in January 2018 the review applicant and the visa applicant have spent around three to four months together. The Tribunal accepts the parties stayed together as a couple in the periods the review applicant was in Nepal and when they holidayed in Kathmandu. The Tribunal accepts the time the parties could have spent together has been adversely impacted by COVID.

25. The parties gave consistent evidence that in the periods they have lived together the visa applicant and review applicant shared the household chores. When together they would do the shopping together and share the costs.

26. The parties gave consistent evidence about their plans to establish a joint household in Melbourne and to raise their child together. The parties also gave consistent evidence regarding expanding their family – deciding to have only the one child for the first few years, before making a decision regarding whether to expand the family.

27. The Tribunal places little weight on the time spent together at the time of application given the limited opportunities for cohabitation since marriage.

28. The Tribunal gives greater weight to the evidence provided at the hearing that the parties genuinely plan to share a home and household duties.

    Social aspects of the relationship

29. Whether the persons represent themselves to other people as being married to each other, the opinion of the persons’ friends and acquaintances about the nature of the relationship and any basis on which the persons plan and undertake joint social activities are relevant matters to be considered in determining the social aspects of the relationship.

30. The review applicant and visa applicant provided consistent oral testimony at the hearing regarding spending time with each other’s families, presenting as a married couple.

31. The Tribunal accepts from the photographic evidence and supporting documentation that their relationship as a married couple is known and accepted within their community, their friends and their families.

32. The parties provided evidence that during their travels in Nepal they stayed as a married couple with the review applicant’s family and visited friends in Kathmandu.

33. The Tribunal accepts that, at the time of application, the parties had little opportunity to present themselves as a married couple to friends and family and, therefore, places little weight on this aspect of the relationship at that time.

34. At the time of this decision, the Tribunal accepts the evidence provided at the hearing as well as photographic evidence, that the parties present to their family and friends as a married couple.

35. The Tribunal is satisfied that the parties present to their family and friends as a married couple.

    Nature of the persons commitment to each other

36. The duration of the relationship, the length of time during which the persons have lived together, the degree of companionship and emotional support that the persons draw from each other, and whether the persons see their relationship as long-term are all aspects to be considered in determining the nature of the persons’ commitment to each other.

37. The Tribunal accepts that the parties began to develop a relationship online from 2013 and have been in a committed relationship and married since January 2018.

38. At the time of application, living in different countries provided little opportunity to physically spend time together, but the Tribunal is satisfied that the communications between the parties indicated that they had made a commitment and continued to be committed to an ongoing life together.

39. The parties provided evidence of phone calls and chat messages indicating they speak to each other daily; the visa applicant providing emotional support during the review applicant’s pregnancy.

40. The parties stated independently to the Tribunal that they plan to raise a family together but would stop at one child until they had sufficient funds to live independently of the review applicant’s family.

41. The Tribunal found the parties’ evidence of commitment to each other and to raise a family together to be genuine and persuasive.

    CONCLUSION

42. The Tribunal is satisfied that at the time the visa application was lodged and at the time of this decision the parties were and are validly married, have a mutual commitment to a shared life as husband and wife to the exclusion of all others, and that the relationship is genuine and continuing. The Tribunal finds that they intend to live together in Australia and that they therefore do not live separately and apart on a permanent basis.

43. Accordingly, the Tribunal finds that the applicant satisfies the definition of ‘spouse’ in s 5F (2) (a)–(d), and that the parties were in a spousal relationship.

44. Given these findings the Tribunal is satisfied that at the time the visa application was made, and at the time of this decision, the parties were in a spousal relationship. The Tribunal finds that the visa applicant is the spouse of the review applicant and satisfies cl 309.211(2) and cl 309.221 of the Act.

45. 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 309 visa.

    decision

• The Tribunal remits the application for a Partner (Provisional) (Class UF) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 309 (Partner (Provisional)) visa:

  ·cl.309.211(2) of Schedule 2 to the Regulations; and

  ·cl.309.221 of Schedule 2 to the Regulations.

  Cheryl Cartwright
  Member