HIMAWAN (Migration) - [2018] AATA 3654

HIMAWAN (Migration) [2018] AATA 3654 (2 August 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr CARLEN HIMAWAN
CASE NUMBER:  1701189
DIBP REFERENCE(S):  CLF2013/55547
MEMBER:Meena Sripathy
DATE:2 August 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 (Partner) visa:
· cl.801.221 of Schedule 2 to the Regulations apart from the criterion that the applicant hold a Subclass 820 visa.

Statement made on 02 August 2018 at 4:30pm
CATCHWORDS
Migration – Partner (Residence) (Class BS) visa – Subclass 801 (Spouse) – Exclusive relationship – Joint bank account – Awareness of sponsor’s travels – Joint travel after Department refusal – Disclosure of relationship to family – Knowledge of sponsor’s health issues – Pool financial resources – Single incidence of sexual infidelity – Duration of relationship – Decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5CB, 65
Migration Regulations 1994 (Cth), r 1.09, Schedule 2 cls 801.221
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 20 January 2017 to refuse to grant the applicant a Partner (Residence) (Class BS) visa under s.65 of the Migration Act 1958 (the Act).
The applicant applied for the visa on 13 March 2013 on the basis of his relationship with his sponsor. On the same date the applicant also applied for a Partner (Temporary) Class UK (Subclass 820) visa. He was granted the Subclass 820 visa on 4 April 2014.
At the time of application, 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. Relevantly to this matter the primary criteria include cl.801.221.
The delegate refused to grant the visa on the basis that the applicant did not satisfy cl.801. 221 because the delegate concluded that the applicant was not in an exclusive relationship with the sponsor and was not satisfied that the applicant and sponsor had a mutual commitment to a shared life to the exclusion of all others or that the relationship was genuine and continuing.
The applicant appeared before the Tribunal on 4 May 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor. The applicant was represented in relation to the review by his registered migration agent.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant is a 34 year old man of Indonesian nationality. He has parents and one brother who reside in Indonesia. The sponsor is a…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading HIMAWAN (Migration)

Details

AGLC: HIMAWAN (Migration) [2018] AATA 3654
Case: [2018] AATA 3654
Decision Date: 2 August 2018

CaseChat Overview and Summary

This matter concerned an application for a Partner (Residence) (Class BS) visa, Subclass 801 (Spouse), by an Indonesian national. The applicant claimed to have commenced a de facto relationship with an Australian citizen in June 2011. The dispute arose when the Department of Home Affairs expressed concerns about the genuineness of the relationship, particularly following an interview with the applicant where he appeared vague on certain details regarding the sponsor's travel and financial arrangements. The Administrative Appeals Tribunal was required to determine whether the applicant had met the criteria for the visa.

The Tribunal was tasked with assessing the overall circumstances of the relationship, considering various factors as outlined in Regulation 1.09A of the Migration Regulations 1994. These factors included the financial aspects of the relationship, the nature of the household, the social aspects, and the nature of the commitment to each other. Specifically, the Tribunal had to weigh the evidence presented by the applicant, including statutory declarations, joint financial documents, and social evidence, against the concerns raised by the Department, particularly in light of the applicant's responses during a telephone interview.

The Tribunal reasoned that while some evidence supported the genuineness of the relationship, such as joint bank accounts, utility bills, and nominations as beneficiaries, the applicant's responses during the interview raised questions. The Tribunal noted that the applicant and sponsor presented themselves as a conservative couple who disclosed their relationship only to close family and friends, which was supported by some evidence. However, the Tribunal concluded that the matter should be remitted for reconsideration, directing that the applicant met the criteria for the Subclass 801 visa, apart from the requirement to hold a Subclass 820 visa.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.CONSIDERATION OF CLAIMS AND EVIDENCE The applicant is a 34 year old man of Indonesian nationality. He has parents and one brother who reside in Indonesia. The sponsor is a 54 year old Australian citizen, born in Vietnam, He has parents and a sister who reside in Vietnam. The parties claim to have met in July 2010 at a bar in Sydney and commenced a de facto relationship from June 2011, residing at an address in Pyrmont. Various supporting documents were lodged with the application including Statutory Declaration form 888s from friends of the applicant and sponsor; evidence of a joint bank account opened in August 2011, including statements covering periods up to 2014; sponsor’s 2012 tax assessment indicating his address; evidence of sponsor’s nomination of applicant as (20%) beneficiary on his superannuation account in December 2011; applicant’s superannuation statement (indicating he has not nominated any beneficiary as at June 2012); statement of relationship from the applicant and sponsor; utility accounts in joint names for periods between 2012 – 2014; photos of the couple together. In February 2015, in response to a request for documentation from the Department, the applicant submitted further evidence in support of the continuing relationship, including Statutory Declarations from the applicant and sponsor; two more Form 888 Statutory Declarations from friends attesting to the relationship; joint utility bills dated 2014-2015 and the sponsor’s 2014 superannuation statement still showing the applicant as nominated beneficiary. In April 2016 an officer of the Department conducted a telephone interview with the applicant. Notes of this interview are included in the Department file at folios 135-136. The applicant was asked questions about the sponsor’s recent overseas travel (specifically relating to where he went, the dates of his travel and how he travelled to and from the airport); where and what hours he works; dates and how many times the sponsor’s travelled overseas during 2015; and their use of social media such as Facebook. The applicant advised that he and the sponsor have single medical insurance memberships, and that he was unaware of declaring the sponsor as his partner on his tax assessment. The officer advised the applicant of concerns arising from his responses and in particular that he did not appear to be aware of the dates of the sponsor’s travel in 2015 and was vague about other matters. He was invited to provide further evidence arising from the discussion. On 24 May 2016 the Department wrote to the applicant providing details of responses he gave at the interview which may lead it to have concerns about the genuineness of the relationship, and advising that adverse information had been received by the Department. On 27 June 2016 the applicant’s representative provided a submission in response to the invitation to comment letter and further evidence in support. In the submission the representative refers to the applicant and sponsor being a relatively conservative couple and due to their cultural backgrounds, respect their traditions and only discuss and disclose their relationship with close and supportive friends and immediate family. The evidence included: Statutory Declarations from the applicant and sponsor. In his Declaration the applicant explained the reasons for his responses during the phone interview and provided further details in response to the matters raised in the letter. The sponsor confirmed various details in his Statutory Declaration and reiterated that it was a genuine and ongoing relationship. Also provided were more photos of the couple together and in social settings; extracts of Facebook chat history (while it is indicated these related to the period February 2015 – February 2016, their content suggests they relate only to the period 14-28 February 2015); letter dated 25 June 2016 confirming that applicant was unable to take leave in February 2016 due to work commitments; 7 further Statutory Declarations Form 888s from friends attesting to the relationship; letter from the applicant’s parents attesting to their knowledge of the relationship; further bank statements;, superannuation statements and utility bills.

Decision

Reasons for decision

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 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 apart from the criterion that the applicant hold a Subclass 820 visa.Meena SripathyMemberATTACHMENT - Extract from Migration Regulations 19941.09A De facto partner and de facto relationship(1)For subsection 5CB (3) of the Act, this regulation sets out arrangements for the purpose of determining whether 1 or more of the conditions in paragraphs 5CB (2) (a), (b), (c) and (d) of the Act exist.Note 1 See regulation 2.03A for the prescribed criteria applicable to de facto partners.Note 2 The effect of subsection 5CB (1) of the Act is that a person is the de facto partner of another person (whether of the same sex or a different sex) if the person is in a de facto relationship with the other person. Subsection 5CB (2) sets out conditions about whether a de facto relationship exists, and subsection 5CB (3) permits the regulations to make arrangements in relation to the determination of whether 1 or more of those conditions 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 in a de facto relationship with 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).

Ratio Decidendi

Legal Principle Established

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 apart from the criterion that the applicant hold a Subclass 820 visa.Meena SripathyMemberATTACHMENT - Extract from Migration Regulations 19941.09A De facto partner and de facto relationship(1)For subsection 5CB (3) of the Act, this regulation sets out arrangements for the purpose of determining whether 1 or more of the conditions in paragraphs 5CB (2) (a), (b), (c) and (d) of the Act exist.Note 1 See regulation 2.03A for the prescribed criteria applicable to de facto partners.Note 2 The effect of subsection 5CB (1) of the Act is that a person is the de facto partner of another person (whether of the same sex or a different sex) if the person is in a de facto relationship with the other person. Subsection 5CB (2) sets out conditions about whether a de facto relationship exists, and subsection 5CB (3) permits the regulations to make arrangements in relation to the determination of whether 1 or more of those conditions 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 in a de facto relationship with 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).