Kim (Migration)

[2022] AATA 3268

Kim (Migration) [2022] AATA 3268 (25 July 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Yang Ji Kim

CASE NUMBER:  1812495

HOME AFFAIRS REFERENCE(S):          BCC2016/3777690

MEMBER:Deputy President Justin Owen

DATE:25 July 2022

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Partner (Temporary) (Class UK) visa, with the direction that the applicant meets the following criteria for a Subclass 820 (Partner) visa:

·cl. 820.211(2) of Schedule 2 to the Regulations

·cl. 820.221 of Schedule 2 to the Regulations

Statement made on 25 July 2022 at 3:32pm

CATCHWORDS
MIGRATION –Partner (Temporary) (Class UK) visa – Subclass 820 – parties validly married – parties’ strong desire to conceive their own child – applicant provide a strong degree of companionship and emotional support to the sponsor –  genuine married relationship at the time of application genuine and committed spouse relationship at the date of decision –credible and honest witness – decision under review remitted

LEGISLATION
Migration Act 1958, ss, 5F, 65
Migration Regulations 1994, r 1.15, Schedule 2, cls 820.211, 820.221

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 Home Affairs to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s. 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 11 November 2016 on the basis of his relationship with his sponsor. At that time, Class UK contained only one subclass: Subclass 820 (Partner). The criteria for the grant of this visa are set out in Part 820 of Schedule 2 to the Migration Regulations 1994 (Cth) (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. 820.211 because he was not satisfied the applicant was the spouse of the sponsor.  The applicant seeks review of the delegate’s decision. 

4. The applicant appeared before the Tribunal on 17 June 2022 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor Ms Sun Hye Yoo. The Tribunal hearing was conducted with the assistance of an interpreter in the Korean and English languages.

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

   Consideration of claims and evidence

6. The issue in the present case is whether the applicant is in a spousal relationship with the sponsor as defined by cl. 820.211(2)(a) and cl. 820.221.

7. The Tribunal has taken into account all the evidence in the Departmental file BCC2016/3777690, folios numbered 1-91, the Tribunal file, and the oral evidence given by the applicant and the sponsor at the Tribunal’s hearing.

   Whether the parties are in a spouse or de facto relationship

8. Clauses 820.211(2)(a) and 820.221 require that at the time the visa application was made, and at the time of this decision, the 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 applicant claims to be the spouse of the sponsor who is an Australian citizen.

9. ‘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 parties’ household and their commitment to each other as set out in reg. 1.15A(3), which is extracted in the attachment to this decision. Each of the specific matters contained in reg 1.15A(3) are effectively questions which must be answered: He v MIBP [2017] FCAFC 206.

   Are the parties validly married?

10. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. The Tribunal has had regard to a copy of the parties’ Commonwealth of Australia Marriage Certificate which according to the document, took place on 16 May 2016 at the Registry of Births, Deaths and Marriages, Parramatta, NSW. The marriage celebrant was Ms Aila Caceres. On the evidence, the parties are married to each other under a marriage that is valid for the purposes of the Act as required by s. 5F(2)(a).

    What is the background of this case based on all the evidence before the Tribunal?

11. The applicant lodged a valid application for a Partner (Provisional) (Class UK) (Subclass 820) visa on 11 November 2016 on the grounds of being in a spousal relationship with an Australian citizen, eligible sponsor Ms Sun Hye Yoo, who lodged a sponsorship in support of the application.

12. The sponsor migrated to Australia in 1989 as a child from Korea.  The applicant first arrived in Australia on 15 November 2015 as the holder of a Working Holiday (subclass 417) visa.  The applicant and sponsor first made contact with each other via a dating application in December 2015.  The parties agreed to meet in-person for the first time on Christmas Day 2015 where they dined at a Korean restaurant in Strathfield.  The parties claim their relationship developed quickly in early 2016 and they agreed to marry in Australia whilst also holding a much larger, more formal event with their families and friends in Korea.  In March 2016 the applicant and sponsor commenced cohabitating at an apartment in Strathfield, the parties both signing the lease.  They remain residing at the property today.  On 16 May 2016 they married at the Parramatta Registry of NSW Births, Deaths and Marriages.  The applicant and sponsor held their Korean wedding reception on 15 April 2017 after both travelled from Australia with the sponsor’s parents and family.  The parties have travelled from Australia to Korea on multiple occasions.  They have attempted to conceive a child together from the time of application for at least four years, seeking a range of medical assistance before undertaking various cycles of IVF in attempt to start a family together. 

13. The applicant did not utilise a representative and provided little corroborative evidence in support of his Partner visa application to the delegate, despite a number of requests. The application was refused on the basis of a lack of evidence. 

14. The parties each claim they have been in a continuing close and abiding spousal relationship together since 2016.    

    Are the other requirements for a spouse relationship met?

15. In reaching its decision, the Tribunal has had regard to the evidence submitted to the delegate with the primary application, the delegate’s decision the applicant provided to the Tribunal, as well as oral and written evidence submitted to the Tribunal.  The Tribunal notes that there was only very limited evidence of the spousal relationship before the delegate.  After undertaking outreach to the applicant in 2021, the Tribunal has had the benefit of considerably further documentary evidence.  What however has been of particular value to the Tribunal has been the parties’ extensive oral testimony at a lengthy Tribunal hearing. The Tribunal found the applicant and sponsor to be considered, detailed and consistent witnesses in their testimony. In relation to their claims as to having been in a genuine spousal relationship since 2016, the Tribunal found the applicant and the sponsor especially to be credible and reliable witnesses. 

16. The Tribunal must consider all the circumstances of the relationship (including the matters specified in reg. 1.15A) in determining whether the parties are in a “married relationship” as defined by s. 5F(2).

    Financial aspects of the relationship

17. In respect of the financial aspects of the relationship between the applicant and sponsor, the Tribunal has considered the joint ownership of real estate or other major assets; joint liabilities; the extent of any pooling of financial resources; and any legal obligations owed to the other party; and any sharing of day-to-day expenses.

18. The sponsor recently exchanged contracts on a residential property in her own name.  The Tribunal asked the parties why they had not done so together given the claims to be in a genuine long-term spousal relationship. The applicant explained that their financial adviser and real estate agent had informed them not to do so given the applicant’s migration status, with a higher rate of duty payable if he had been a joint purchaser.  The property was bought off the plan with completion not due until the end of 2023.  The parties stated they would transfer the property and ensure it was jointly owned once the applicant could secure permanent residency.  The Tribunal, given its view that the testimony of the parties generally at hearing was credible is, in the circumstances of this particular case, prepared to accept the veracity of their claim.  In relation to major assets, the Tribunal notes that the applicant has in fact purchased the motor vehicle of the sponsor’s father.  On the basis of all the evidence before it, the Tribunal finds that there is very limited joint ownership of real estate or major assets, however the Tribunal does not place any particular negative weight on this assessment. 

19. There is no claim of any joint liabilities incurred between the parties.  The sponsor explained that she spent $75,000 of her own savings as a deposit on the aforementioned property.  The parties explained that neither had any significant current loans or liabilities, with the new property the sponsor purchased not due to settle for some 18 months. The Tribunal finds that there is no evidence of joint liabilities, however the Tribunal does not place any particular negative weight on this assessment. 

20. The applicant and sponsor have a joint bank account with the NAB that both parties utilise and with which both parties appeared to the Tribunal to be familiar.  Given the applicant has his own business, the applicant has a NAB business account which is now used to pay rent, utilities and other living costs.  The parties explained that this has been done as the spare room at their property is being used as a quasi-office for the business and to allow them to claim a proportion of such expenses on their tax. The applicant and sponsor explained that the NAB business account in many ways is these days used as their major day-to-day joint account.  Both parties have their own cards and access to the account.  The applicant and sponsor each also maintain a Westpac and St George Bank account respectively as their own accounts.  Whilst the evidence submitted concerning the accounts is relatively limited, the Tribunal remains satisfied based on all the evidence before it that the applicant and sponsor are sharing their living costs and expenses largely through the joint account and joint business account. 

21. The applicant is employed as a metal fabricator in the construction industry, working his own business and working across multiple sites.  The sponsor is not in employment.  The Tribunal found the parties were well aware of how much the applicant earns each week and contributes to their family income. They discussed the reasons why they had decided to rely on one income so the sponsor could focus on the success of their IVF treatment in a non-stressful environment. 

22. The Tribunal notes that the applicant and sponsor have each nominated the other for the purposes of superannuation and death benefit insurance policies. The Tribunal also notes the ATO tax returns of the applicant that nominate the sponsor as his spouse.  The Tribunal gives this some positive weight.  

23. The Tribunal has considered the sharing of day-to-day household expenses.  The applicant and sponsor provided consistent testimony in relation to how they share and service their day-to-day costs in their home. 

24. Despite the relatively limited documentary evidence submitted by the applicant, the Tribunal is nevertheless satisfied, due to the testimony of the parties, that the parties have combined their financial affairs to a degree that is commensurate with a couple in a genuine and ongoing spousal relationship.

    Nature of the household

25. The Tribunal has considered the nature of the parties’ household, including any joint responsibility for the care and support of children; the parties’ living arrangements; and any sharing of housework.

26. The parties have no responsibility currently for the care and support of children.  The Tribunal notes the evidence before it that the parties have undergone significant fertility treatment over the last four to five years, involving surgery and multiple cycles of IVF.  Both parties confirmed that the treatment thus far was unsuccessful, they were scheduled to commence a new transfer the week following the Tribunal’s hearing. 

27. The applicant and sponsor discussed their living arrangements, with both stating they have lived together continually now for over six years with both their names on the leasehold agreement.  The parties were consistent in their testimony concerning their residence.  There is a range of documentation illustrating the parties as residing at the same address, including electricity bills addressed to both parties, and a wide range of other bills and utilities either addressed to one or both at the same Strathfield residence.  The parties’ testimony was consistent and spontaneous.  The Tribunal is satisfied that the parties have shared their living arrangements continually over the last six years.  The Tribunal accepts that the applicant and sponsor have lived together in the same household since early 2016 as they have claimed. The Tribunal accepts that the parties’ living arrangements are as they have submitted. 

28. In relation to responsibility for housework, the parties provided largely similar testimony when discussing individual roles and duties.

29. The Tribunal considers the testimony of the applicant and sponsor to be consistent and credible on these matters and accepts the parties have lived under the same roof together for the last six years. 

30. On the evidence before it, the Tribunal is satisfied that the parties’ household together since early 2017 is how they have claimed in their oral testimony, and is commensurate to that of a couple in a genuine and ongoing spousal relationship. 

    Social aspects of the relationship

31. The Tribunal has considered the social aspects of the relationship between the applicant and sponsor, including whether they represent themselves to other people as being married to each other; the opinion of friends and acquaintances about the nature of the relationship; and any basis on which they plan and undertake joint social activities.

32. The applicant and sponsor each discussed how they represent themselves to other people as being married to each other; as well as the opinion of friends and acquaintances about the nature of the relationship.  They were able to spontaneously name each other’s good friends and various social activities they enjoy undertaking.  They claim to have a close relationship with the sponsor’s elderly parents that live nearby in Campsie. 

33. The sponsor explained that the applicant was the more social of them as a couple, discussing how she and the applicant often go out with the applicant’s friends. 

34. The parties each explained how they enjoyed undertaking interests such as swimming together, whilst over the years they have had a strong connection to the Sydney Gospel Church in which the sponsor’s family has been active for well over thirty years. 

35. The Tribunal has taken into account the 888 forms from various friends of the sponsor that attest to the genuineness of the applicant and sponsor’s relationship.  The Tribunal has also taken into account the various photographs of the applicant and sponsor with family and friends both in Korea and Australia.  The Tribunal viewed the formal wedding albums which the applicant and sponsor took to the Tribunal’s hearing, and is satisfied that the event in Korea was attended by hundreds of their family and friends. 

36. The Tribunal has taken into account the applicant’s failure to call any witnesses in the guise of friends or family to appear at the Tribunal’s hearing to validate the claims that have been made about the spousal relationship.  The Tribunal considers the lack of independent testimony at the hearing is more due to the relative naivety of the unrepresented parties in presenting their case, rather than evidence that the claimed relationship does not enjoy social recognition from family and friends. 

37. Despite the limited corroborative evidence, the Tribunal nevertheless remains satisfied that the applicant and sponsor are representing themselves to other people as being married to each other.  The Tribunal is also satisfied that the parties represent themselves as being in a genuine spousal relationship and that others believe that the relationship is continuing. 

38. The applicant and sponsor each discussed the travel they had undertaken, having visited Korea on multiple occasions as a married couple between 2016 and 2020, however having been precluded from doing so further as a result of the closure of international borders from early 2020 until relatively recently.   

39. The Tribunal considered the applicant and sponsor to both be credible witnesses and accepts their claims as to the social aspects of their relationship.  The Tribunal is satisfied that the parties’ relationship is commensurate to that of a couple in a genuine and ongoing spousal relationship. 

    Nature of persons’ commitment to each other           

40. The Tribunal has considered the duration of the relationship; the length of time the applicant and sponsor have lived together; the degree of companionship and emotional support they draw from each other; and whether they see the relationship as long-term.

41. The applicant and sponsor in their oral testimony each illustrated a sound and genuine knowledge of each other’s personal circumstances.  The Tribunal accepts that the parties met on Christmas Day in 2015, entered a relationship in early 2016, married in May of that year and have remained in a genuine and continuing partner relationship together since this time.  The Tribunal asked the applicant and sponsor about why there was almost a year’s gap between their marriage in May 2016 and their large-scale wedding ceremony in Korea in April 2017.   The sponsor explained that she had desired to be a “Bride of May” which was a fashionable trend in Korea.  The date and venue of their wedding reception was decided by all their parents collectively and was, the Tribunal accepts having examined the photographs from the event, a major logistical exercise.  

42. The applicant and sponsor each discussed how they had lived together since 2016 at their Strathfield rental property, where a lease was signed under both their names.  The Tribunal considers the oral testimony of the parties, combined with the evidence presented of them cohabitating in Strathfield via various correspondence and lease notices, is sufficient to satisfy the Tribunal that the applicant and sponsor have lived with each other continually now for over six years. 

43. The Tribunal has considered the degree of companionship and emotional support the applicant and sponsor draw from each other.  The parties in some detail discussed their attempts to conceive a child together since their marriage.  The Tribunal notes the corroborative evidence and oral testimony that suggests the parties spent some years attempting to conceive before on specialist advice in 2018 the sponsor underwent significant surgery in 2018 to improve her chances at having a child.  The applicant and sponsor, after a further lack of success, have commenced IVF.  The sponsor discussed she had been through a number of cycles and transfers, with the next transfer to occur on 21 June 2022.

1. The challenges of IVF and the parties’ strong desire to conceive their own child was evident in their testimony.  The process has seen the applicant provide a strong degree of companionship and emotional support to the sponsor.  The applicant discussed the surgery process the sponsor undertook at the Royal Women’s Hospital in Randwick as well as the role he had undertaken in assisting the sponsor with the numerous injections she took as part of the IVF harvesting process.  The Tribunal found the applicant’s knowledge of the IVF process and the frustrating process the sponsor has faced to be spontaneous, detailed and genuine. 

2. The Tribunal questioned the parties about their friends and various details concerning past birthdays and other significant events in the calendar, including the Queen’s Birthday Public Holiday held just days prior to the Tribunal’s hearing.   The Tribunal is satisfied the responses they provided were genuine, credible and consistent. Their knowledge of each other’s health was in the Tribunal’s opinion consistent with that of a couple in a genuine spousal relationship. 

3. The parties exhibited a sound knowledge of each other’s personal history, whether it be previous employment, the names and other details about each other’s families, and each other’s likes and dislikes.  They claim one of the traits that attracted themselves to each other is the ability to laugh at themselves. The applicant and sponsor are an energetic and amusing couple, each exhibiting a dry sense of humour at the hearing which the Tribunal considered was indicative of the genuineness of their claim to provide each other with genuine companionship and support.         

4. The applicant and sponsor discussed how they had now resided together for in excess of five years.  The Tribunal is satisfied that the parties have lived together in a spousal relationship since May 2016 which continues today.  They state that they have never been separated since this time.  On the basis of their testimony, and the written testimony of their witnesses, both of whom the Tribunal considered entirely credible, the Tribunal accepts the claim.

5. The Tribunal is satisfied from all the documentary and oral evidence from the applicant and the sponsor that the parties are drawing genuine emotional support and companionship from each other, and that they have a good understanding of each other’s lives. The Tribunal discussed the delegate’s decision record with the applicant, noting the profound lack of corroborative evidence provided by the parties in their application.  The Tribunal notes that the corroborative evidence they have provided in this review is a significant improvement.  It is however relatively limited, a factor the Tribunal considers is the result of the applicant and sponsor not being fully aware and cognisant of what is required in such an application and/or review. 

6. The Tribunal however is satisfied of the genuineness of the applicant’s claims ultimately due to the substantial oral testimony of the applicant and sponsor at its hearing.  Quite simply, the Tribunal believes the applicant and sponsor, finding them to be genuine, detailed, spontaneous and subsequently reliable in their testimony.  Their testimony individually on the challenges they have faced with conceiving a child, and the ongoing issues as they pursue IVF was especially insightful. The Tribunal placed particularly strong weight on the oral testimony of the sponsor, whose observations and articulate commentary on the spousal relationship were of genuine value in the Tribunal’s deliberations.     

7. The Tribunal finds from all the evidence that the parties are married to each other under a marriage which is valid for the purposes of the Act, and therefore at the time of application and time of decision, the parties meet s. 5F(2)(a).

8. The Tribunal is satisfied that at the time of application and the time of decision, the applicant and the sponsoring partner have a mutual commitment to a shared life as husband and wife to the exclusion of all others. The Tribunal is satisfied that the relationship is genuine and continuing. They therefore meet the requirements of s. 5F(2)(b) and s. 5F(2)(c) for a married relationship.

9. Additionally, the Tribunal is satisfied that at the time of application and time of decision, the applicant and the sponsoring partner live together. Accordingly, they meet the requirements of s. 5F(2)(d) for a married relationship.

10. For these reasons, the Tribunal finds that at the time of application and time of decision, the applicant and the sponsoring partner are in a married relationship within the meaning of s. 5F(2) and therefore satisfy the definition of ‘spouse’ contained in s. 5F of the Act.

11. The Tribunal is satisfied that at the time of application, and time of decision, the applicant was the spouse of the person who is an Australian citizen, and that the applicant was sponsored by that person. The Tribunal finds that there is no evidence before it which indicates that the sponsor was prohibited from being a sponsoring partner under cl. 820.211(2B).

12. Accordingly, the applicant meets the requirements of cls. 820.211(2)(a) and (c).

13. Based on the Department’s movement records, the Tribunal also finds that at the time of application, the applicant was the holder of a substantive visa, and therefore cl. 820.211(2)(d) does not apply.

14. On the basis of the above, the Tribunal is satisfied that the requirements of s. 5F(2) are met at the time the visa application was made, and at the time of this decision.

15. Therefore, the applicant meets cl. 820.211(2) and cl. 820.221.

16. 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 820 visa.

    decision

17. The Tribunal remits the application for a Partner (Temporary) (Class UK) visa, with the direction that the applicant meets the following criteria for a Subclass 820 (Partner) visa:

    ·cl. 820.211(2) of Schedule 2 to the Regulations

    ·cl. 820.221 of Schedule 2 to the Regulations

    Justin Owen
    Deputy President

    
    

    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).