Kim (Migration) - [2022] AATA 583

Kim (Migration) [2022] AATA 583 (16 March 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ms Sulah Kim
REPRESENTATIVE:  Miss Saemi Seon (MARN: 1679394)
CASE NUMBER:  1927782
HOME AFFAIRS REFERENCE(S):          BCC2018/2052651
MEMBER:Maxina Martellotta
DATE:16 March 2022
PLACE OF DECISION:  Perth
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 (1) (a) of Schedule 2 to the Regulations

Statement made on 16 March 2022 at 3:09pm
CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – genuine and continuing relationship – validly married in Australia – currently in home country settling applicant’s mother’s estate – financial, household and social aspects of relationship – limited activities while in home country under COVID-19 restrictions – nature of commitment – consistent and credible evidence – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5F(2)(a), 65
Migration Regulations 1994 (Cth), r 1.15A(3), cls 820.211(2), 820.211(1)(a)
CASES
Ally v MIAC [2008] FCAFC 49
He v MIBP [2017] FCAFC 206
Jayasinghe v MIMA [2006] FCA 1700
MIEA v Pochi (1980) 4 ALD 139
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

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).
The applicant applied for the visa on 11 May 2018 on the basis of her relationship with her 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.
The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl 820.211(2)(a) because they were not satisfied on the presented evidence that the applicant was the spouse of the sponsor.
The applicant appeared before the Tribunal on 22 February 2022 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor.[1] The Tribunal hearing was conducted with the assistance of an interpreter in the Korean and English languages. The hearing was conducted by video conference as both the applicant and sponsor were in South Korea. The applicant was represented in relation to the review.
[1] The sponosr was not present whilst the applicant gave her evidence.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether at the time of application and at the time of decision the applicant was the spouse of the sponsor. This requires the applicant and sponsor to have a mutual commitment to a shared life, a genuine and continuing relationship and live together or not live separately and apart on a permanent basis.
Whether the parties are in a spouse or de facto relationship
Clause 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.
‘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?
If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. The applicant and sponsor were married on 6 January 2018. The applicant provided a certified copy of marriage certificate issued by the New South Wales Registrar for Births Deaths and Marriages. This is consistent with oral testimony provided at hearing.
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).
Are the other requirements for a spouse relationship met?
The Tribunal had the opportunity of taking oral evidence from the applicant and sponsor. This included evidence regarding the development of their relationship, their relationship history, knowledge of each other’s background and family history, financial, social, and household aspects of their relationship and the nature of their commitment to each other. The applicant and sponsor provided consistent evidence.
In the Tribunal’s assessment the applicant and sponsor provided credible evidence which was cogent and consistent with other evidence provided by the applicant and on the Departmental file.
Background
The applicant is a citizen of South Korea (Republic of Korea). She was born in 1974. The sponsor is an Australian citizen born in 1977. The applicant and sponsor first met on 25 January 2016. The applicant was travelling on the Gold Coast, Queensland and met the sponsor at a bar. At the time the applicant was living in Perth and the sponsor was living in New South Wales.
The applicant and sponsor’s evidence is that after meeting they maintained contact and became friends. The sponsor moved to Western Australia for work and they re-establish contact. Their relationship became romantic and in April 2017 they started to live together. They were married in January 2018 and continue to live together to the present time. The applicant’s mother suddenly passed away in July 2021. The applicant returned to South Korea and was joined by the sponsor in November 2021. They are currently in South Korea but plan to return to Australia once they are able to settle the mother’s estate.
Financial Aspects of the relationship
The tribunal has had regard to the evidence provided relating to the financial aspects of the relationship, including joint ownership of real estate or other major assets and any joint liabilities, the extent of any pooling of financial resources, especially in relation to major financial commitments, whether one person in the relationship owes any legal obligation in respect of the other and the basis of any sharing of the day-to-day household expenses.
Joint ownership of real estate or other major assets
They have not and do not jointly own any real estate or other major assets. The applicant has inherited her mother’s home in South Korea and she also owns an investment property in South Korea. She made that purchase since returning to Korea. This was not done jointly with the sponsor as it was her decision to invest in the property. They had discussed the idea, but the sponsor was not interested in the proposal and did not discuss it any further with the applicant.
They plan to sell the mother’s house and use those funds to jointly purchase a home in Australia.
Joint liabilities
They do not have any joint financial liabilities.
Pooling of financial resources
The applicant and sponsor maintain their own separate bank accounts. When they started to live together, they opened a joint account in June 2017 which covered joint living expenses and other joint costs such as entertainment and travel. They still maintain that joint account. They each contribute to the joint account. When in Australia as the applicant was not working, she would contribute from her personal savings. The sponsor was working and was contributing from his income.
Whilst in South Korea due to financial restrictions relating to their Australian account, the applicant and sponsor are utilising the applicant’s Korean bank account. They are using funds in that account. The applicant explained that prior to her mother’s death the sponsor was providing some financial support to her mother and now she is reciprocating by utilising funds in her Korean bank account.
Evidence of a joint bank account opened in June 2017 was provided to the tribunal which is consistent with the oral evidence.
Whether one person in the relationship owes any legal obligation in respect of the other
Apart from their marriage the applicant and sponsor do not owe any legal obligations to each other
Any sharing of the day-to-day household expenses.
When they commenced living together and following their marriage, their day to day household expenses were met from the joint account. They would share the living costs such as the rent for the apartment where they lived.
When they stayed at properties owned by the sponsor’s parents, they did not have accommodation costs. Now they are in Korea they again do not have accommodation costs as they live in the applicants’ mothers former home.
Since living in South Korea, as noted they mainly utilise the applicant’s Korean bank account to meet their costs of living. this is due to their living arrangements and restrictions on using their Australian account. They are otherwise meeting their living expenses from their savings and money that the sponsor makes from online trading.
Nature of the household
The Tribunal has had regard to the evidence as to the nature of the household including joint responsibility for the care and support of children, the parties’ living arrangements and any sharing of the responsibility for housework. The applicant and sponsor provided the following evidence.
Joint responsibility for the care and support of children
The applicant and sponsor do not have any joint responsibility for the care and support of children.
Living arrangements
The applicant and sponsor commenced living together in March/April 2017. They shared a rental and lived there on their own. A copy of the rental agreement in joint names was provided. They continued to live in the property after their marriage and until they decided to move from Western Australia to New South Wales in November 2019. They initially stayed on a property located on the sponsor’s father farm. In March 2020 they moved to the sponsor’s mother property at Sanctuary Point. They housesat that property as the sponsor’s mother was working in Perth. They were living there until the applicant’s mother passed away and she returned to South Korea.
They currently both live in the applicant’s mother’s former home which now belongs to the applicant. They intend to return to live in Australia once the mother’s former home is sold. They will use those funds to purchase a home in Australia.
Housework
In the time they have lived together, they have always shared housework and tasks. When in Perth the sponsor was working fly-in and fly-out but when he was home, he would do most of the cleaning and she would do most of the cooking.
Since living in Korea, the applicant probably does most of the housework because her husband is not very tidy, and she gets frustrated and just does it herself. The sponsor does more of the maintenance tasks needed around the home whilst she focuses on the interior of the property and cleaning.
Social Aspects of the relationship
The tribunal has had regard to the evidence provided as to whether the parties represented themselves to others as being in a genuine de facto relationship and now as being married to each other, the opinion of their friends and acquaintances about the nature of the relationship and any basis on which the parties plan and undertake joint social activities. The applicant and sponsor provided the following evidence:
Representation to others
The applicant and sponsor represent themselves as a married couple. The sponsor introduced the applicant to his family and friends when their relationship became more serious. They chose to marry in New South Wales because this is where most of the sponsor’s family reside. Following their wedding they both travelled to South Korea and the sponsor met the applicant’s mother.
They have mutual friends who acknowledged them as being a married couple.
The applicant provided photographs showing the applicant and sponsor celebrating their wedding in the company of family members and friends.
Statutory declarations were provided by supporting witnesses. The sponsor’s sister and brother in law both declaring that they met the applicant through her relationship with the sponsor and the applicant is very part of the family. They were present at their marriage and they believe their relationship is genuine and continuing.
The applicant has a good and close relationship with the sponsor’s mother and other members of the sponsor’s family. She stated that with her mother’s passing she has no other family and the sponsor, and his family are her only family.
The applicant and sponsor are recognised by the South Korean government as spouses. This is supported by a Certificate of Family Relations issued by the Supreme Court of Korea a certified copy of which was provided by the applicant.
Any basis on which the parties plan and undertake joint social activities.
The applicant and sponsor enjoyed travel and undertook holidays and travel particularly before the COVID-19 pandemic. This included trips to Indonesia, back to South Korea and trips to different locations in Australia. The also shared activities and events with family members and friends.
Since being in South Korea their activities are limited due to COVID-19. They spend time together at home and will go out to visit friends.
The applicant provided photographs from various dates and places showing herself and the sponsor together and with family and friends at a variety of events and occasions.
Nature of the persons’ commitment to each other
The Tribunal has had regard to the evidence provided in relation to the nature of the parties’ commitment to one another including the duration of the relationship, the length of time they have lived together, the degree of companionship and emotional support they draw from each other, and whether they see the relationship as long-term. The applicant and sponsor provided the following evidence.
Duration of the relationship
The applicant and sponsor first met in 2016. They were married in January 2018.
Length of time they have lived together
The applicant and sponsor have continuously lived together since 2017. The only break was for the period that the applicant returned to South Korea following the death of her mother and the sponsor remained in Australia to organise and settle matters and get a visa so he could travel to South Korea.
Companionship and emotional support they draw from each other
The applicant told the tribunal that now her mother has passed away, the sponsor and his family are her only family. The sponsor is someone who has been there and supported her since they started their relationship. He provided financial assistance to her mother when she was alive and came to Korea to support her and be with her after her mother died.
They are staying in South Korea in order to settle the property and make other arrangements. This is being delayed by administrative requirements of the government relating to the sale of the property. They are waiting for that process to be completed.
The sponsor told the tribunal that he can tell the applicant loves him through her actions and that he can see her love in her eyes. She supports him and is always there for him and they share interests.
Before the applicant’s mother died, they had plans to travel to Korea and spend some time there for a period of time and stay with the applicant’s mother and try and bring her mother to Australia so that the family could all be together. Unfortunately, the applicant’s mother passed away unexpectedly. When the applicant’s mother died, the sponsor was unable to leave at short notice and the sponsor stayed behind to organise their things before he could join his wife. He also needed to get a visa. It was never in question that he would not join the applicant to support her.
They planned life events together such as the decision to move from Western Australia to New South Wales and then the decision to be together in Korea.
Whether they see the relationship as long-term?
Their ultimate plan is to return to Australia and will definitely settle on the east coast but at the moment they are in South Korea until the matters associated with the estate are finalised.
Korea has made it vey easy for the sponsor to live in the country. If the visa application is not successful, they will continue to pursue the issue as they are in a genuine spousal relationship. They have a future together whether in Korea or Australia they won’t be separated.
Are the criteria for a spouse relationship at the time of application and at the time of decision met?
In this matter the Tribunal makes the following findings of fact:
Financial aspects of the relationship
The applicant and sponsor:
a)At the time of application at the time of decision do not currently own any real estate or significant assets in joint names.
b)At the time of application and time of decision have a joint account – however they also maintain separate accounts. They pool financial resources by each providing financial support derived either from their individual or joint financial accounts.
c)At the time of application and time of decision jointly contribute to the day to day household costs and living expenses.
Nature of the household
d)At the time of application and at the time of decision the applicant and sponsor have lived together on their own. This has either been living in a rental property or living in properties owned by the sponsor’s parents or currently in the home that the applicant has inherited from her mother.
e)At the time of application and at the time of decision the applicant and sponsor share household activities which includes cleaning, washing, cooking, maintenance and shopping.
Social Aspects of the relationship
f)As at the time of application and as at the time of decision represent themselves to the world at large as a married couple.
g)As at the time of application and at the time of decision they are recognised and acknowledged by family and friends as being in a genuine relationship and as a married couple as evidenced by statutory declarations and the affirmed evidence provided at hearing, as well as certificates provided by the Supreme Court of Korea.
h)At the time of application, since then and currently at the time of decision they have planned and undertaken social activities as spouses. They have travelled together, attended events, functions and celebrations with family and friends, share common interests and activities.
The nature of their commitment to each other
i)The applicant and sponsor first met in 2016. They have lived together since April 2017 and continue to live together.
j)The applicant and sponsor were married in January 2018.
k)They have provided each other with companionship and emotional support since April 2017.
l)They view their relationship as long term and see their future as continuing as a married couple. They intend to return and settle in Australia once the applicant is able to settle her mother’s estate.
Other findings of fact
m)The applicant is sponsored by her spouse.
n)The applicant and sponsor are both over the age of 18 and are not related by family.
o)The applicant previously held a UD 601 visa before being granted a bridging visa.

The task for the tribunal is to consider all relevant circumstances and evidence of the relationship in determining whether on balance the requirements that define a genuine and continuing relationship and a mutual commitment to a shared life to the exclusion of all others are met where the parties are living together or not separately and apart on a permanent basis. In this regard the tribunal is to also consider relevant evidence of events that has occurred after the date of application. Such evidence is relevant if it tends logically to show the existence or non-existence of factors relevant to be determined.[2]
[2] Ally v MIAC [2008] FCAFC 49 at [32]–[35]; Jayasinghe v MIMA [2006] FCA 1700 at [35], citing MIEA v Pochi (1980) 4 ALD 139 at [24] per Deane J which held that evidence of subsequent events may be taken into account if it ‘tends to logically show the existence or non-existence of’ the relationship at that particular time; and see also Bretag v IRT [1991] FCA 582 at [13]–[15].
In this matter having had the opportunity of observing and testing the applicant and sponsor’s affirmed evidence at hearing, taking into account the materials, documents before the Tribunal and its findings of fact, the Tribunal is satisfied and finds that the evidence supports the conclusion that at the time of application and at the time of decision:
a)The applicant and the sponsor have a mutual commitment to a shared life as a married couple to the exclusion of all others and the relationship is genuine and continuing. [3]
b)The applicant and the sponsor have lived together since April 2017.
c)At the time of the visa application on the applicant was the holder of a substantive visa.
d)At the time of the visa application the applicant was the spouse of the sponsor who is an Australian citizen who was not prohibited from being a sponsor.
e)At the time of decision, the applicant continues to be the spouse of the sponsor.
[3] While the prescribed matters must be considered in Partner visa cases, they are not criteria that must each be satisfied - Li v MIAC [2007] FMCA 454 at [73]. The Court stated the Tribunal decision would have involved jurisdictional error ‘if the Tribunal had taken the view that, to meet the criteria, the applicant must have pooled her financial affairs with the sponsor’s…’. Decision upheld on appeal in Li V MIAC [2007] FCA 1098.
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 the time of this decision. Therefore, the applicant meets cl 820.211 (2) and 820.221(1)(a)
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
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 (1) (a) of Schedule 2 to the Regulations
Maxina Martellotta
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).