Jarosz (Migration)

[2019] AATA 2308

Jarosz (Migration) [2019] AATA 2308 (28 February 2019)

WRITTEN STATEMENT OF DECISION

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Sylwia Teresa Jarosz

CASE NUMBER:  1803604

DIBP REFERENCE(S):  BCC2016/2118168

MEMBER:Nicholas McGowan

DATE:28 February 2019

PLACE OF DECISION:  Melbourne

DECISION:This Tribunal remits this Partner (Temporary) (Class UK) visa application, with the direction that the applicant meets cl.820.211(2) and cl.820.221 of Schedule 2 to the Regulations.

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – genuine spousal relationship – credible witnesses – daughter’s health issues – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 5F
Migration Regulations 1994 (Cth), r 1.15A; Schedule 2, cls 820.211, 820.221

REVIEW

1. The applicant is a 38 year old Polish woman, who married Marcus Russell Logan who is a dual Australia and New Zealand citizen, in Nelson, New Zealand on 8 February 2016. Mr Logan was born in New Zealand on 21 November 1980.

2. On 21 June 2016 the applicant applied for a temporary partner visa on the basis of her relationship with her Australian citizen husband. On 7 February 2018 that application was refused by a delegate of the immigration minister. On 12 February 2018, the applicant appealed to this tribunal for a merits review of the delegate’s refusal decision.

3. On 27 February 2019 this tribunal conducted a public hearing where the applicant, her husband, her husband’s aunt, and a family friend, each attended and provided oral evidence. The parties’ infant child, a daughter born 20 May 2018, was also in attendance.

4. This case was a delight. It was a delight because everyone at the public hearing spoke openly, often with emotion, always without hesitation or forethought, and with consistent sincerity and detailed recall for events such that it quickly became clear to this tribunal that they were each highly credible and reliable in what they said. Accordingly, this tribunal has not hesitated at coming to the following findings based on the strong oral evidence, which is entirely consistent with all of the documentary evidence on the case files.

5. The facts of this case are as follows. When the applicant and her husband applied for the visa their life was in turmoil. They had had one miscarriage, and were experiencing the loss of one of their twins, with the second twin born at 24 weeks gestation. Neither the applicant nor husband gave the application process sufficiently close regard, and even failed to complete the basic forms necessary for departmental consideration. Understandably, their minds were focused on the health of the applicant and their unborn daughter. Having considered all the evidence submitted since, and the account of their lives as shared at the public hearing, this tribunal is in no doubt the applicant and her husband satisfy the criteria for the grant of the visa. The presence of their baby daughter is, in this case, yet further evidence of their genuine union, support and commitment to each other. Their future plans were also made clear, and their entire oral evidence was supported by the witnesses present at the public hearing.

   FINDINGS

6. Having considered each of the r.1.15A(3) matters, and after assessing the parties relationship against s.5F(2)(a)-(d), this tribunal is satisfied the applicant and her sponsor are: ‘validly’ married (folios 27-28); have a mutual commitment to a shared life to the exclusion of all others; are, in a relationship which is genuine and continuing; and live together.

7. Given the above, this tribunal has been satisfied that at the time of application the applicant met cl.820.211(2). As the applicant continues to meet those criteria, cl.820.221 (the ‘time of decision’ criteria) is also met.

8. The documentary evidence provided to this tribunal will be shared with the immigration department to assist with their further consideration of the remaining criteria necessary for the grant of the applicant’s temporary (and later, permanent) partner visa.

   Statement made on 28 February 2019 at 1:49pm