Kertland (Migration)

[2018] AATA 5117

Kertland (Migration) [2018] AATA 5117 (9 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Jerel Kertland

CASE NUMBER:  1617854

DIBP REFERENCE(S):  BCC2015/784394

MEMBER:Rosa Gagliardi

DATE:9 November 2018

PLACE OF DECISION:  Melbourne

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.801.211 of Schedule 2 to the Regulations; and

·cl.801.221 of Schedule 2 to the Regulations.

Statement made on 09 November 2018 at 10:57am

CATCHWORDS

MIGRATION – Partner (Residence) (Class BS) visa – Subclass 801 (Partner) – genuine and continuing partner relationship – sole purpose of gaining a migration outcome – limited joint financial commitments – companionship and emotional support – child from the relationship – shared Christian values – decision under review remitted  

LEGISLATION

Migration Act 1958, ss 5, 65
Migration Regulations 1994, Schedule 2, cls 801.211. 801.221; rr 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 24 October 2016 to refuse to grant the applicant a Partner (Residence) (Class BS) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 11 March 2015 on the basis of her relationship with her sponsor. At that time, 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.

3. The delegate refused to grant the visa on the basis that the applicant did not satisfy cl.801.211 because of an insufficiency of evidence to demonstrate that the parties were in a genuine and continuing spousal relationship.

4. The applicant appeared before the Tribunal on 1 November 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s putative spouse, Mr Luke Kertland, as well as from Mr Kertland’s mother, Mr Garry Burns, the applicant’s brother-in-law and from the applicant’s sister, Generosa Burns.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   SPOUSE/DEFACTO (cl.801.221(2))

   Whether the parties are in a spouse or de facto relationship

6. Relevantly to this matter, cl.801.221(2)(c) requires that at the time of this decision, the applicant is the spouse of the ‘sponsoring partner’, who must be an Australian citizen or Australian permanent resident or an eligible New Zealand citizen who was specified in the related Subclass 820 visa application as the spouse or de facto partner of the applicant. In the present case the applicant claims to be the spouse of the sponsor who is an Australian citizen by birth and was identified in the Subclass 820 visa application. On the evidence before it, the Tribunal is satisfied that the sponsor is the ‘sponsoring partner’ of the applicant.

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). 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 sponsor’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?

8. 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 under a marriage that is valid for the purposes of the Act as required by s.5F(2)(a).

   Background

9. The parties met through the applicant’s brother-in-law, Mr Garry Burns who has married the applicant’s sister and sponsored her from the Philippines also.  Mr Garry Burns and the sponsor, Mr Kertland, have been long-time friends.  Previous to her relationship with

   
   

   Mr Kertland, her current sponsor, the applicant was dating Mr Geoffrey McGonigal who was also a friend of Mr Garry Burns.  The applicant initially came to Australia on a Visitor visa and Mr Garry Burns facilitated the meeting with Mr McGonigal.  

10. At the time of application, there were concerns that the applicant was engaging in a relationship with Mr McGonigal at the same time she claimed that she was in a relationship with the sponsor.  However, it is argued that the relationship between the applicant and

    
    

    Mr McGonigal ended on 8 July 2014, “due to the length of time it took the Prospective Marriage visa to be granted, differences of opinion and age concerns” (see Folio 89 of the Departmental file: BCC2015/784394 in which the applicant explains that it was a few days after the end of her previous relationship that the applicant might have met her new sponsor, but that a relationship did not commence immediately).  

11. The parties have never previously been married.

12. Their relationship progressed and they married on 6 December 2014.  The Department, not unreasonably, had concerns about the rapidity with which the relationship developed and concerns that the relationship might have been contrived for the sole purpose of the applicant gaining a migration outcome.  The fact that the applicant breached her Tourist visa to remain in Australia supports this contention.

13. Nonetheless, the facts of this case are complicated.   The Tribunal has no doubt that the applicant in forming a relationship with a previous Australian citizen and the current sponsor, has been attempting to gain a migration outcome.  The Tribunal considers, however, that the applicant has mixed motivations for having entered into this relationship, not least for economic security and stability and because from the hearing, it was evident that the sponsor provides companionship and emotional support to the applicant and their common child who was born on 9 April 2018.  The parties were both willing to undergo a DNA test to demonstrate that the sponsor is the father’s child.

14. The Tribunal has read the sponsor’s statement to the Tribunal which came across as sincere and persuasive as he appeared at hearing.  He spoke of the difficulties of finding a potential partner as in Warrnambool young people did not attend his Church (Pentecostal), and as a truck driver he did not have computer skills to go online. He found that meeting the applicant face to face rather than over the internet appealed to him.

15. Both parties are religious.  The applicant has been raised in a strict Catholic family and the sponsor belongs to the Pentecostal Church and takes his faith seriously.  When the Tribunal asked why they were not married in a Church according to Christian tradition, the sponsor explained that they would have had to pay for a priest/pastor to marry them and they wanted to direct their resources towards their household.

16. The parties were also transparent at hearing about their relationship having had its “ups and downs” given they had never previously been married and were required to adjust their routines to accommodate another person.  The Tribunal explored these difficulties in depth and is satisfied that these have been overcome, and that the birth of their child has strengthened their relationship.

    Are the other requirements for a spouse relationship met?

    Financial aspects of the relationship

17. In the sponsor’s statement to the Tribunal, he wrote by way of explanation for the financial arrangement with the applicant:

    …Can I begin by saying as a man who had the luxury of having both a mother and father in my life I have learnt a lot of very important and yet to some maybe old fashioned morals and traditions but I know it works as my parents have been married over 55 years, one of the most important values I learnt from them that as a man it is my responsibility to provide safety, harmony, love as well as financial support to my wife.  I started working fulltime at age 14 and in that twenty three years I’ve learnt to pay all my bills and never rely on anyone for help…

18. The applicant is not currently working as she is looking after their child on a full-time basis, and the sponsor is the provider for the household.  Previously when the Department had concerns that the parties’ finances did not appear to have been held jointly because they did not have a joint account, the applicant was working in the slaughter house at Midfield Meats in Warrnambool.  The sponsor responded to these concerns by stating that he understands how hard it is to work in the slaughterhouse where the applicant’s wage was minimal and she was working long hours.  Given how hard the applicant worked for her salary, he did not think it was appropriate to “demand” half of her pay as he did not see it as fair and under no circumstances would he do so, as he considers that his role as a man is to provide, not take.  Having said this, the sponsor explains that the applicant has contributed to their joint household, paying utility accounts and that she has undertaken a more traditional role in keeping house and purchasing groceries. 

19. The Tribunal has sighted the applicant’s previous account in her name and accepts that the purchases involve everyday items, including groceries, consistent with persons sharing a household together.

20. The Tribunal has sighted evidence that the applicant has nominated the sponsor and her child equally as her beneficiaries in terms of her superannuation fund.  The Tribunal acknowledges that this does indicate that the parties combine their resources and have liabilities towards one another, however the Tribunal places limited weight on such a document that can be amended or rescinded at any time.

21. Overall the Tribunal places limited adverse weight on the fact that the parties have not provided extensive evidence of joint financial arrangements, given the applicant has now stopped working and is entirely reliant on the sponsor.

    The nature of the household

22. The parties have provided evidence of co-tenancy of rental premises and copies of utilities addressed to the applicant and the sponsor.  The delegate found, at the time of application, that this evidence demonstrated that the parties resided together, but that such evidence held no sway because it appeared that the applicant had entered into the relationship with Mr Kertland for the sole purpose of gaining a migration outcome.  As the Tribunal has already indicated, there are elements of the applicant’s motivation that point to such an end, but the Tribunal is not satisfied that her living with Mr Kertland is solely for the purpose of gaining a migration outcome. 

23. The applicant and the sponsor are now sharing responsibilities in looking after their child.  They have provided extensive photographic material depicting the parties with their child as a family together with others.  Much of the material submitted shows them in household situations and undertaking daily activities together.  Further, the parties gave evidence of undertaking outdoor activities together and as a family, including camping, fishing and other home activities such as gardening.

24. The sponsor’s mother also gave credible and compelling evidence at hearing that she was providing the parties with land on which they would place a transportable home.  This was to enable the parties to get a loan from the equity in the property.  The sponsor’s mother stated that the assistance that she and her husband were offering the parties was reflective of the sponsor’s parents’ strong belief that the relationship was genuine and continuing and that they wanted to assist them and their grandchild to build a secure future.  The Tribunal places significant weight on this evidence.

    The social aspects of the relationship

25. A good deal of evidence has been submitted that points to the parties being in a genuine and continuing spousal relationship by way of photographic material as well as supporting statements.  From the hearing it was evident that the parties and their small child see themselves as a part of the Pentecostal community and that they are known as being a family unit.  Furthermore, the parties are part of their wider community in which they interact with other members on a daily basis.  In particular, the Tribunal has placed significant weight on the sponsor’s mother’s evidence that she and her husband attended the wedding and that the relationship is recognised widely by their community as being a genuine one.

26. The Tribunal has had regard, for example, to a statutory declaration submitted by Jennifer Marie Sheen, Midwife, Warrnambool, who is an outreach worker for a program designed to assist young mothers.  She states that she has had weekly contact with the parties, including home visits.  Ms Sheen states that the parties are living together as husband and wife and confirms that the sponsor was at the birth and was very supportive of the applicant.  In addition, Ms Sheen confirms the parties’ living arrangements in sharing a room together and that “All appears genuine”. 

27. Ms Florence Mansbridge who was a colleague of the applicant, has declared that she found both the parties to be kind, loving and caring “and show this compassion towards each other very much.  They are family orientated and are both hardworking…”.  In addition,

    
    

    Ms Mansbridge has written that she certainly believes that the relationship between the parties is genuine due to the feelings they show one another.  She confirms that they love to travel, being outdoors, camping, fishing and exploring new places and that they are a committed couple who were (at that time) planning to have a family together.

28. Ms Anabel Estrada Burns has also provided a Form 888 that she has socialised with the couple, including visiting them at their home.  She states that she attended the wedding and their daughter’s christening.  They also attend Filippino events together.  Ms Burns also states that it would be devastating to separate a family as she has seen how supportive the parties are of one another.

29. Other persuasive statements were submitted detailing that the parties live together as a family with their child and socialise accordingly.

    The nature of the commitment

30. Both parties at hearing were open about doubts and concerns they might have had early on in the relationship. The Tribunal was convinced at hearing that any such concerns were passing, and that as with all relationships, particularly where the parties have not had a significant period of time to get to know one another, there are periods of uncertainty and adjustment. 

31. The Tribunal is satisfied that the relationship is now settled and that the parties see their relationship as long-term as reflected in the evidence submitted to the Tribunal.  The fact that they are building a new home together reflects their commitment to live together and have joint care for their child.  The evidence submitted by way of photographic material and third party statements, has persuaded the Tribunal that the parties share their day to day activities and that they provide one another companionship and support consistent with two persons in a spousal relationship. 

32. The Tribunal also notes that the parties share similar Christian values about family and marriage and that they have a vision of a shared future together.

33. Given the above, the above the Tribunal is satisfied that the parties are not living separately and apart on a permanent basis and that they are in a genuine and continuing spousal relationship to the exclusion of others.

34. Given these findings the Tribunal is satisfied that the requirements of s.5F(2) are met at the time of this decision. Therefore the applicant meets cl.801.221(2)(c).

35. 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

36. 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.801.211 of Schedule 2 to the Regulations; and

    ·cl.801.221 of Schedule 2 to the Regulations.

    Rosa Gagliardi
    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).