Hadirin (Migration)

[2017] AATA 2315

Hadirin (Migration) [2017] AATA 2315 (9 November 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Hadinuraida Hadirin

CASE NUMBER:  1615177

DIBP REFERENCE(S):  BCC2015/1784182

MEMBER:Nicola Findson

DATE:9 November 2017

PLACE OF DECISION:  Perth

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 (Temporary)) visa:

·cl.820.221(2)(a) of Schedule 2 to the Regulations

·cl.820.221 of Schedule 2 to the Regulations

Statement made on 09 November 2017 at 3:17pm

CATCHWORDS

Migration – Partner (Temporary) (Class UK) visa – Subclass 820 (Spouse) – Genuine spousal relationship – Applicant financially supported by sponsor – Shared household responsibilities – Relationship recognised by friends and family – Emotional support and companionship

LEGISLATION

Migration Act 1958, ss 5F, 65

Migration Regulations 1994, r 1.15A, Schedule 2, cl 820.211, 820.221

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision of a delegate of the Minister for Immigration on 1 September 2016 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 applied for the visa on 22 June 2015 on the basis of her relationship with her sponsor. At that time, Class UK contained only one subclass: Subclass 820 (Partner (Temporary)). The criteria for the grant of this visa are set out in Part 820 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.

3. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.820.211(2)(a) because the delegate was not satisfied that the evidence before her was sufficient to demonstrate that the parties were in a genuine and continuing spouse relationship.

4. The applicant appeared before the Tribunal on 7 November 2017 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor, Mr Muhamed Erywin Abu Bakar, as well as the sponsor’s mother, Ms Rubia Salim.  The Tribunal hearing was conducted with the assistance of an interpreter in the Malay and English languages.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in the present case is whether the relationship between the applicant and sponsor meets the definition of “spouse” in section 5F of the Act.

   Whether the parties are in a spouse or de facto relationship

7. 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.  

8. ‘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 husband and wife 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.

   Are the parties validly married?

9. If the parties are validly married, they may meet the requirements of a spousal relationship, but not a de facto relationship.  The parties have provided evidence, by way of a Marriage Certificate, that they married in Malaysia on 12 December 2014.

10. 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 spousal relationship met?

11. The applicant and the sponsor claim to have met in person on 28 August 2012, when the applicant was visiting Perth with her family.  They had been introduced about two months earlier by the applicant’s brother and his wife, who are neighbours of the sponsor in South Hedland, Western Australia, and they had already forged a relationship over the phone and social media before they met face to face. When the applicant returned to Malaysia, the parties maintained daily contact by skype, social media as well as telephone and their relationship developed. The parties became engaged in August 2013, while the applicant was again in Australia for her brother in law’s wedding, and they married in Malaysia on 12 December 2014.  After their wedding, the applicant returned to Australia, as the holder of a visitor visa, with her sponsor and they commenced living together. 

12. The delegate found there was insufficient evidence provided to demonstrate the spousal relationship was genuine and ongoing.  On review, the Tribunal has been provided with persuasive oral evidence and supporting documents to demonstrate there is a genuine spousal relationship.

13. At hearing, the parties provided detailed and consistent evidence about the circumstances in which they met, the development of their relationship, their current living arrangements, their financial circumstances, their social life, their extended families’ circumstances and future plans. They gave their evidence in a straightforward manner and the Tribunal found them to be credible witnesses.

    Financial aspects of the relationship

14. The Tribunal considered the evidence in relation to the financial aspects of the parties’ relationship including joint ownership of assets, the extent of pooling of financial resources, and any sharing of day-to-day household expenses.

15. The parties demonstrated an awareness of one another’s financial circumstances at the hearing.  The Tribunal was told that the sponsor is a boilermaker by trade and has worked for BHP Billiton for the last five years.  The applicant has lived with the sponsor, in a house owned by BHP Billiton, since December 2014.  She has not worked since she arrived in Australia in December 2014 and is fully supported by the sponsor.  The parties gave consistent evidence about how the payment of their rent is taken from the sponsor’s fortnightly salary; that all of their utility bills are in the name of the sponsor - which bills are paid and then reimbursed to the sponsor by BHP Billiton; that the sponsor covers all other living expenses; and that the sponsor transfers $300 per fortnight to the applicant’s bank account, for her personal use. 

16. The evidence before the Tribunal also indicates that the parties established a joint bank account in February 2015.  The Tribunal was told that this account is used solely as a savings account to enable the parties’ to travel and for their future.  The sponsor makes regular money transfers into this account.

17. The Tribunal is satisfied on the evidence provided that the financial aspects of the relationship are an indicator of a genuine and continuing spousal relationship.

    Nature of the household

18. The Tribunal considered the evidence in relation to the nature of the household including the parties’ living arrangements and any sharing of housework.

19. The Tribunal is satisfied on the basis of the evidence before it that the parties have lived together, at one address in South Hedland, since December 2014. 

20. The parties have joint responsibility for the care and support of their baby, born on 9 October 2017. 

21. The parties gave a consistent account of the sharing of household responsibilities, including cooking, cleaning, grocery shopping and gardening, and their living arrangements.

22. The evidence of the establishment of a joint household since the end of 2014 provides significant weight in support of a finding that the applicant and sponsor are in a genuine spousal relationship. 

    Social aspects of the relationship

23. The Tribunal considered the evidence as to whether the persons represent themselves to other people as a couple, 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.

24. The Tribunal has had regard to the evidence provided to it by the parties, including oral evidence from the sponsor’s mother, who also lives in South Hedland.  The sponsor’s mother gave evidence at the hearing of her recognition of the couple as spouses, and her reasons for believing the relationship is a genuine, caring and loving one.  The Tribunal found the evidence from the sponsor’s mother to be reliable and gives it weight. 

25. The parties also provided numerous photographs showing them as a couple at various family and other social occasions.  The Tribunal finds the photographic evidence supports the parties’ claims that the applicant has been embraced by the sponsor’s family as a member of the family.  The Tribunal also gives weight to the evidence that the sponsor has spent time with the applicant’s family in Malaysia as well as Australia, which the Tribunal considers as support and recognition from the applicant’s family of the relationship. 

26. On the basis of the evidence before it, in particular the oral evidence at the hearing and the photographs, the Tribunal finds that the relationship between the applicant and sponsor is recognised and supported by their respective families, and their mutual friends. They plan and undertake joint social activities.  The Tribunal is satisfied that the parties hold themselves out to others as being in a spousal relationship.

    The nature of the persons’ commitment to each other

27. The Tribunal considered the evidence in relation to the nature of persons’ commitment to each other including the duration of the 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.

28. The Tribunal is satisfied that the applicant and sponsor have been living together in a committed relationship since late December 2014.  They have now been married for almost 3 years and have a child together. 

29. The Tribunal was told by the parties that they have a strong relationship and take care of each other.  The applicant told the Tribunal that she had been very ill during her recent pregnancy and hospitalised for two weeks at one stage.  She said that the sponsor had taken time off work to be with her at the hospital every day and night during this time.

30. The parties both gave consistent evidence as to their future plans, including buying an investment property together and one day moving to Perth. 

31. On the evidence before it, the Tribunal finds that the parties are committed to each other.  From their evidence, and from the evidence of their family and friends, the Tribunal finds that the parties derive emotional support and companionship from each other – that they have done so since December 2014, when they married and have continued to do so.

32. The Tribunal finds there is strong evidence of their commitment to each other and seeing their relationship as long term.

    Conclusion

33. The Tribunal has had the benefit of receiving oral evidence in person from the parties.  It has also received further documents that were not before the delegate.

34. The Tribunal places significant weight on the applicant and sponsor’s answers at hearing, which were credible and consistent, and the documentation provided at review.  Having had regard to all of the circumstances of the relationship, including the regulation 1.15A(3) matters, the Tribunal finds that:

    ·    The parties are married to each other under a marriage that is valid for the purposes of the Act;

    ·    The parties are not living separately and apart on a permanent basis and that they see their future as a long term one;

    ·    The parties have a mutual commitment to a shared life together to the exclusion of others; and

    ·    The parties’ relationship is genuine and continuing.

35. 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.

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

37. 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

38. 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 (Temporary)) visa:

    ·cl.820.211(2)(a) of Schedule 2 to the Regulations

    ·cl.820.221 of Schedule 2 to the Regulations.

    Nicola Findson
    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).