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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Kim (Migration)

Details

AGLC: Kim (Migration) [2022] AATA 583
Case: [2022] AATA 583
Decision Date: 16 March 2022

CaseChat Overview and Summary

This matter concerned an appeal by the applicant, Kim, against a decision regarding her Partner (Temporary) (Class UK) visa, Subclass 820. The core dispute revolved around whether the applicant and her sponsor, an Australian citizen, were in a genuine and continuing spousal relationship at the time of the visa application and at the time of the decision. The case was heard by Maxina Martellotta.

The legal issues before the Tribunal were whether the applicant and sponsor met the requirements of a married relationship as defined by section 5F of the Migration Act 1958 (Cth). This required determining if they were validly married, had a mutual commitment to a shared life as a married couple to the exclusion of others, if their relationship was genuine and continuing, and if they lived together or not separately and apart on a permanent basis. The Tribunal was required to consider all circumstances of the relationship, including financial, household, and social aspects, as well as their commitment to each other, as outlined in regulation 1.15A(3).

The Tribunal found that the applicant and sponsor were validly married in Australia in January 2018, satisfying the requirement of section 5F(2)(a). The Tribunal considered evidence regarding the duration of their relationship, their cohabitation since 2017, the companionship and emotional support they provided each other, and their long-term commitment. Despite the applicant being in her home country of South Korea to settle her mother's estate, which had led to a period of separation due to COVID-19 restrictions and administrative delays, the Tribunal found their evidence to be consistent and credible. The Tribunal noted their joint financial pooling, shared household responsibilities, representation of themselves as a married couple to the public, and acknowledgment by family and friends as a married couple. Their ultimate plan to return to Australia and settle there further indicated a long-term commitment.

Consequently, the Tribunal concluded that the matter should be remitted for reconsideration, indicating that the applicant had presented a case that warranted further assessment of her eligibility for the visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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

Decision

Reasons for decision

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 relationshipThe 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 householdd)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 relationshipf)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 otheri)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 factm)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.

Ratio Decidendi

Legal Principle Established

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?