Hristov (Migration)

[2021] AATA 4398

Hristov (Migration) [2021] AATA 4398 (29 October 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Dinko Nikolaev Hristov

VISA APPLICANT:  Mrs Mai Huynh TANG

CASE NUMBER:  1927835

DIBP REFERENCE(S):  BCC2019/3596454

MEMBER:Andrew George

DATE:29 October 2021

PLACE OF DECISION:  Darwin

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.

Statement made on 29 October 2021 at 11:29am

CATCHWORDS

MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – genuine and continuing relationship – rapid development of the relationship – nature of the household – review applicant’s hospitalisation – validly married – visa applicant pregnant with the review applicant’s child – joint travel – no evidence of a carer relationship – couple’s commitment to each other – decision under review remitted  

LEGISLATION

Migration Act 1958, ss 5, 65
Migration Regulations 1994, Schedule 2, cls 309.211, 309.221; r 1.15

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 on 18 September 2019 to refuse to grant the visa applicant a Partner (Provisional) (Class UF) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 23 December 2018 based on her relationship with her sponsor, the review applicant. At that time, Class UF contained only one subclass: Subclass 309 (Partner (Provisional). The criteria for the grant of this visa are set out in Part 309 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.309.211. Materially, the delegate found that:[1]

   “While I am satisfied that you and your sponsor have legally married, and whilst the applicant displayed some knowledge of the sponsor at the interview, there is limited evidence in support of the mutuality of your commitment to each other. The rapid development of the relationship is of concern, given the absence of any evidence of contact and the limited amount of time you and the sponsor spent together before you were married. The limited evidence of the nature of a household is also of concern, given that you and the sponsor claim to have resided together since December 2018 and it would be reasonable to expect more joint correspondence than what has been submitted. Your limited knowledge of when the sponsor developed his medical condition is of further concern, as are the gaps in your knowledge of the sponsor’s personal circumstances. The evidence provided seems to suggest that you are the sponsor’s carer rather than in a spousal relationship. I am not satisfied that the nature of commitment evidenced gives strong support for the existence of a genuine and continuing relationship between you and your sponsor.”

   [1] Decision Record/5.

4. The visa applicant appeared before the Tribunal on 9 September 2021. The Tribunal accepts that the review applicant was too unwell to attend the hearing and that Mr Nikolay Nikolaev has both Power of Attorney and an Order for Guardianship to speak on the review applicant’s behalf. No issue of standing arises from the review applicant’s absence. The Tribunal had the benefit of witness statements from the visa applicant, Mr Nikolaev, and Ms Anna Nikolaeva, who are the review applicant’s parents.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Whether the parties are in a spouse or de facto relationship

6. 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.

7. ‘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).

8. The Tribunal must have regard must be had to all the circumstances of the relationship when forming its view. 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. Each of the specific matters contained in r.1.15A(3) are effectively questions which must be answered: He v MIBP [2017] FCAFC 206.

   Are the parties validly married?

9. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. On the evidence, the parties were married to each other in Australia on 16 December 2018 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?

10. The circumstances of this case give are particularly unique. The medical evidence of Dr Jonathon Morrow, in his report of 30 August 2021, is that the review applicant has suffered brain disease since at least 2018. This disease was originally undiagnosed and caused some motor symptoms and cognitive difficulties. At that time, the review applicant was married to the visa applicant, but seemed to be self-caring. In February 2021, the review applicant’s condition significantly deteriorated. Dr Morrow reports:

    “This is a progressive disease without effective established treatment. It has caused substantial deterioration in Dinko over months to the point he is now bed bound and has lost more words. Dinko has looked to her for reassurance and comfort. As he lost his speech capacity ‘Mai’ is one of the very few words he has retained”.

11. For medical-in-confidence reasons, and to maintain the dignity of the applicants in a public decision such as this, it is unnecessary for the Tribunal to repeat the other medical and therapeutic evidence. This evidence includes occupational therapy, speech therapy, and correspondence from AnglicareNT. It is sufficient that the Tribunal notes that it accepts Dr Morrow’s evidence. The Tribunal further accepts the report of Dr Nicky Purser, dated 6 October 2021, that the visa applicant is pregnant with the review applicant’s child.

12. The Tribunal has read and considered the visa applicant’s statement dated 2 September 2021. This statement forms the substance of her evidence. The visa applicant acknowledges that her relationship with the review applicant developed quickly. The applicants moved into the review applicant’s mother’s house, which is near that of the review applicant’s father’s house. The pair presented themselves as being a loving couple in their social activities.

13. The visa applicant’s evidence is corroborated by that of Mr Hristov and Ms Nikolaeva and is accepted by the Tribunal. In making this finding, the Tribunal places weight on the holiday taken by the applicants and their wider family in January 2021.

14. The Tribunal notes that Dr Morrow is of the belief that the relationship between the applicants is genuine. Although this is not strictly medical evidence, it goes to the question or whether the visa applicant is a mere carer for the review applicant. Noting the findings of the delegate in this regard, the evidence before the Tribunal does not indicate that the relationship between the visa applicant and the review applicant has ever been one of a carer and caree. It is not an issue that arises on the medical evidence. On the contrary, the Tribunal places weight on the oral evidence of Ms Lora Nikolaeva, as corroborated by Mr Nikolaev and Ms Anna Nikolaeva, that the visa applicant is a member of their family.

15. Noting the findings above, the Tribunal is satisfied that the nature of the household, nature of the applicant’s commitment to each other, and the social aspects of the relationship are consistent with those of a genuinely married couple.

16. As at the date of decision, it is difficult for the Tribunal to assess the financial aspects of the marriage as the review applicant is unwell. It is sufficient in these unique circumstances for the Tribunal to note that the financial aspects are not inconsistent with those of a married couple, where one of the couple has been hospitalised. Certainly, the financial aspects of the relationship are not those of a carer and caree. The Tribunal further agrees with the delegate that little weight is to be placed on this factor as at the date of application given the freshness of the marriage at that time.

17. Accordingly, the Tribunal is satisfied on that the applicants have a mutual commitment to shared life to the exclusion of others. Their marital relationship is genuine and continuing. Except for the review applicant’s hospitalisation, they live together and not separately and apart on a permanent basis.

18. Based on the above the Tribunal is satisfied that the requirements of s.5F(2) are met at the time the visa application was made and the time of this decision.

19. Therefore, the visa applicant meets cl.309.211(2) and cl.309.221.

20. 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

21. 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.

    Andrew George
    Member

    
    

    ATTACHMENT  - Extract from Migration Regulations 1994

    1.15ASpouse

    (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).