Kiboss (Migration)

[2020] AATA 2616

Kiboss (Migration) [2020] AATA 2616 (4 March 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Wilson Chirchir Kiboss

CASE NUMBER:  1831946

DIBP REFERENCE(S):  BCC2017/3844746

MEMBER:Joseph Francis

DATE AND TIME OF

ORAL DECISION AND REASONS:         4 March 2020 at 1:14 pm (WA time)

DATE OF WRITTEN RECORD:                15 April 2020

PLACE OF DECISION:  Perth

DECISION:The Tribunal remits the decision under review with the direction that the applicant met the following criteria:  clause 820.211(2)(a), and 820.211 at the time of the visa application only.

Statement made on 15 April 2020 at 10:14am

CATCHWORDS
MIGRATION –Partner (Temporary) (Class UK) visa – Subclass 820 – withdrawal of sponsorship –relationship had ceased – victim of domestic violence – parties validly married – genuine married relationship at the time of application –decision under review remitted

LEGISLATION
Migration Act 1958, s 5
Migration Regulations 1994, Schedule 2, cl 820.211, Schedule 3

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 16 October 2018 to refuse to grant the visa applicant a Partner (Temporary) (Class UK) Subclass 820 visa under the Migration Act 1958 (the Act).

2. At the hearing on 04 March 2020 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

   STATEMENT OF DECISION AND REASONS

3. Mr Kiboss applied for the class UK visa on 18 October 2017 on the basis of his relationship with Australian citizen, Ms Catherine Anne Sawtell, who lodged a sponsorship form in support of his application at that time. The parties claimed to be in a married relationship, and as such the delegate assessed the matter under section 5(f) for married couples.

4. The delegate refused to grant the visa on the basis that there was insufficient information to demonstrate that Mr Kiboss and Ms Sawtell were in a genuine and continuing married relationship.

5. The delegate also made note that Mr Kiboss was not the holder of a substantial visa at the time of his application on 18 October 2017, and as such had a subsequent schedule 3 compliance issue. The delegate did not assess the claim for a waiver of a schedule 3, as they found they were not in a genuine relationship as defined under section 5(f) of the Migration Act. Regardless, the tribunal therefore has not considered the schedule 3 waiver request either.

6. Mr Kiboss appeared before the tribunal today, 4 March 2020, to give evidence and present arguments.  Ms Sawtell withdrew her sponsorship of the application on 9 January 2020, and confirmed her withdrawal to the tribunal on that day.  Mr Kiboss had also informed the tribunal that he was claiming to be the victim of domestic violence on 9 January 2020, and requested the tribunal have no further contact with Ms Sawtell with regard to his application for review.

7. The tribunal was informed by Mr Kiboss that he currently has a temporary restraining order in place against Ms Sawtell, with an application for a restraining order due to be considered by a Magistrates Court in Western Australia on 19 March 2020.  The tribunal therefore assessed the application based on the circumstances of the parties at the time of the visa application on 18 October 2017. 

8. The applicant was not represented during the hearing.  The tribunal had before it a copy of the Department’s file containing Mr Kiboss’s visa application, and the documentary evidence referred to by the delegate.  Mr Kiboss provided the tribunal a copy of the delegate’s decision record with his application for review. 

9. The history of the visa application can be summarised from the delegate’s decision record on the Department’s file.

10. Mr Kiboss and Ms Sawtell met at a bar in Northbridge, Perth, in May 2016, having been introduced by a mutual friend.  They commenced their relationship shortly after that time.  Mr Kiboss then commenced living with Ms Sawtell in June 2016 and their relationship developed. 

11. The tribunal accepts the parties have lived together since that time and up until the start of January 2020.  Mr Kiboss and Ms Sawtell were legally married in Western Australia on 3 December 2016, and the tribunal accepts the validity of that marriage. 

12. In assessing this matter the tribunal considered all of the requirements contained in section 5(f) with the following findings:

    Financial aspect of the relationship:

13. At the time of the visa application the tribunal finds the parties have pooled finances and held a thorough understanding of each other’s financial situation.  In particular, they both derived an income and shared that income through a joint bank account.  They shared all living expenses.  Mr Kiboss received income through work as an office removalist, and Ms Sawtell through her income provided by the pension.

    The nature of the household:

14. The parties lived together in a shared house from June 2017 until January 2020 for some two and a half years.  They shared housework, including cooking, cleaning, and gardening.  The tribunal finds that at the time of the visa application the parties lived together as a genuine married couple.

    Social aspects of the relationship:

15. At the time of the visa application the tribunal finds that the parties represented themselves to others as being in a genuine married couple.  They had approximately 50 people attend their wedding, which was well recognised in their local church community.  The parties socialised with friends, and undertook joint social activities as a married couple.

    Nature of the person’s commitment to each other:

16. The tribunal finds that at the time of the visa application the nature of the parties’ commitment to each other was significant; they had lived together for some 17 months prior to the visa application, 10 months of which was as a married couple.  The parties provided significant companionship and emotional support to each other, with consideration to supporting each other through health issues, and the passing of close family members on both sides.

17. On the basis of the above the tribunal is satisfied that the requirements of section 5(f) were met at the time of the visa application only. As the visa applicant, Mr Kiboss, has now claimed to have recently been subjected to domestic violence by Ms Sawtell, the tribunal is unable to consider the matter further with regard to the time of this decision. There is no evidence that Ms Sawtell was prohibited, under subclass 2(b), from being a sponsoring partner at the time of the visa application.

18. The tribunal is satisfied that at the time of application only the visa applicant has met clause 820.211(2)(a) of the Regulations.

19. I am satisfied that Mr Kiboss was the partner of the sponsor as defined under section 5(f) of the Migration Act at the time of the visa application. Given the findings, the appropriate course of action is to remit this application.

20. I am remitting this matter to be returned to the Minister for reconsideration and to be returned to consider the matter with respect to the remaining criteria for a subclass 820 visa.  So the decision is that the tribunal remits the application for a partner temporary class UK subclass 820 visa, with the direction that the applicant met the following criteria:  clause 820.211(2)(a), and 820.211 at the time of the visa application only.  decision

21. The Tribunal remits the decision under review with the direction that the applicant met the following criteria:  clause 820.211(2)(a), and 820.211 at the time of the visa application only.

    Joseph Francis
    Member