Kipkemboi (Migration)

[2021] AATA 2936

Kipkemboi (Migration) [2021] AATA 2936 (15 June 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Andrew Kipkemboi

CASE NUMBER:  1911909

HOME AFFAIRS REFERENCE(S):          BCC2018/860746

MEMBER:Christine Kannis

DATE:15 June 2021

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 of Schedule 2 to the Regulations

Statement made on 15 June 2021 at 6:58am

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – genuine spousal relationship – financial aspects – nature of the household – social aspects – nature of the commitment – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5F, 65
Migration Regulations 1994 (Cth), r 1.15A; Schedule 2, cl 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 22 February 2018 on the basis of his relationship with his sponsor, Ms Kelly Calderwood. 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 the applicant.

3. The visa was refused because the delegate was not satisfied that the applicant’s relationship with the sponsor met the definition of spouse under the Act and therefore he did not satisfy cl.820.211(2)(a).

4. A copy of the Decision Record was submitted to the Tribunal by the applicant for the purposes of the review.

5. The applicant appeared before the Tribunal on 11 May 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor. The Tribunal received evidence by telephone from friends of the parties, Mr Daniel Sawe and Ms Natalie Morton-Veras.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is whether the applicant is the spouse of the sponsor as defined in s.5F of the Act.

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. Section 5F 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 husband and wife 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 as to these matters, regard must be had to all of the circumstances of the relationship. This includes evidence of the financial and social aspects of the relationship; the nature of the household and the persons’ commitment to each other as set out in r.1.15A (3), which is extracted in the attachment to this decision.

10. The applicant is a 33-year-old Kenyan national. The sponsor is a 46-year-old Australian citizen. The parties met in February 2014 and commenced a relationship in June 2016. They commenced cohabitation in September 2016 and were married on 11 August 2017.  

11. Prior to the hearing the applicant provided documents which included but were not limited to bank statements, photos, utility bills and tax returns. The Tribunal had significantly more information before it than was available to the delegate.

12. The Tribunal records that the applicant and the sponsor each gave oral evidence during the hearing in a spontaneous and forthright manner.

    Whether the parties are in a spouse or de facto relationship

    Are the parties validly married?

13. If the parties are validly married, they may meet the requirements of a spousal relationship, but not a de facto relationship. The evidence provided included a copy of a Certificate of Marriage showing the applicant and the sponsor married on 11 August 2017.

14. On the basis of the written evidence before it the Tribunal concludes that the marriage satisfies the requirements for a valid marriage for the purpose of the Act as required by s.5F (2)(a).

    Are the other requirements for a spousal relationship met?

    Financial aspects of the relationship

15. The Tribunal considered the evidence in relation to the financial aspects including joint ownership of assets, joint liabilities, any legal obligations owed to the other party, the extent of pooling of financial resources and any sharing of day-to-day household expenses.

16. In the documents provided prior to the hearing the applicant stated that he “chipped in with the bills” during the period from September 2016 to June 2018 when he lived with the sponsor and her brother at their jointly owned property at Beckenham Street, Beckenham WA (Beckenham Street). He said the sponsor and her brother paid the mortgage on the property. At the hearing the applicant explained that during this time he transferred $200 to $400 per fortnight into an account in the sponsor’s name and this was his contribution towards the grocery expenses. The Tribunal was provided with Bankwest statements for an account in the sponsor’s name for the period from 21 June 2016 to 18 December 2020. There were numerous credit transactions in 2016 and 2017 described by using the applicant’s name and in 2018 by using the applicant’s name and words such as “loan rent” or “help” or “car’ or “allowance” or “savings”. The applicant confirmed that these were transfers made by him.

17. In the documents provided prior to the hearing the applicant stated that he and the sponsor resided at Bromley Street, Beckenham Western Australia (Bromley Street) from June 2018 and during that time they shared the payment of bills. At the hearing the applicant told the Tribunal that he paid the rent at Bromley Street because the sponsor was still paying her share of the mortgage on Beckenham Street. He said she paid some household bills for Bromley Street including the internet bill.

18. The parties relocated to Geraldton in January 2020. The applicant is currently employed in two jobs and the sponsor is employed on a permanent part-time basis. The applicant told the Tribunal that he pays the rent and they share utilities and grocery expenses. The sponsor gave generally consistent evidence in this regard.

19. Two statements for a Credit Union Australia Limited account in the parties’ joint names were provided. The issue dates were 7 January 2019 and 7 July 2019. The earlier statement showed no transactions and the later statement showed one credit transaction. The applicant told the Tribunal that this a savings account. He said he and the sponsor deposit money whenever they are able to do so. He said they are saving for a deposit to buy a property in country Western Australia. He said the current balance in the account is around $10,000. The sponsor gave generally consistent evidence in this regard. Following the hearing a statement for the period 1 April 2021 to 11 May 2021 was provided. The closing balance is indicated to be $9,673.66

20. At the hearing the applicant confirmed that except for their joint savings, he and the sponsor have no joint assets or joint liabilities.

21. Based on the written and oral evidence, the Tribunal finds that at the time of application and at the time of this decision, the applicant and the sponsor pool their financial resources and share of day-to-day household expenses.

    Nature of the household

22. The Tribunal considered the evidence in relation to the nature of the household including any joint responsibility for care and support of children, the parties' living arrangements and any sharing of housework.

23. In the documents provided prior to the hearing the applicant stated that during the period he lived at Beckenham Street with the sponsor and her brother, the sponsor did the food shopping, cooking and laundry. He said he did the dishes and house cleaning and the sponsor’s brother was responsible for the upkeep of the yard. The applicant stated that when he and the sponsor moved to Bromley Street, the sponsor did the food shopping, laundry and gardens. He said the cooking was shared and he did the dishes and cleaned the floor.

24. A Record of Payment of Security Bond dated 10 July 2018 indicates that rental of Bromley Street was in the parties’ joint names and that the start date of the tenancy was 27 June 2018. The evidence before the Tribunal included a property condition report for Bromley Street dated 26 June 2018 which indicated that the applicant and the sponsor were the tenants of the property. Utility bills dated 30 January 2019, 28 November 2019 and 19 March 2020 addressed to the applicant at Bromley Street and a police check addressed the sponsor at Bromley Street dated 20 August 2018 were provided.  The delegate noted that the sponsor also provided a health appointment letter dated 18 February 2019 listing Beckenham Street as her address and this address was also the address on her driver’s licence. In the documents provided prior to the hearing the applicant stated during the period they resided at Bromley Street the sponsor’s postal address remained as Beckenham Street because she jointly owned the property with her brother and therefore considered it a more permanent mailing address. The Tribunal accepts this explanation.

25. The applicant provided a video to the Tribunal in which he said he was sending a video message to his family. At the commencement of the video the words “Bromley Street Beckenham” appeared. The video was primarily of the back and front paved and garden areas of a property. The applicant appeared briefly in the video and a female person also appeared briefly in the video. There was no indication as to when the video was filmed. At the hearing the applicant explained that the video was made in 2018 or 2019 to send to his family in Kenya.

26. The applicant told the Tribunal that in early 2020 he and the sponsor relocated to Geraldton, WA in search of better employment opportunities. A Tenancy Receipt dated 7 February 2020 in parties’ joint names evidencing payment of rent for a property at Durlacher Street, Geraldton, WA (Durlacher Street) was provided. The applicant told the Tribunal that he and the sponsor share the household tasks and he is responsible for the cleaning and the dishes and the sponsor does the laundry and the cooking. The sponsor gave generally consistent evidence in this regard.

27. Prior to the hearing seven photos were provided which were described as “Proof of joint spousal living”. The photos were of the interior of premises and included a photo of a dressing table, a photo of a bookcase, a photo of clothes hanging in a wardrobe, a photo of a bathroom vanity, a photo of a bed and a photo of a kitchen pantry. Only one of the photos showed a female person however her face was not visible. No indication was given as to where and when the photos were taken. At the hearing the applicant explained that the photos were of the interior of Durlacher Street. The Tribunal noted that the photos of clothes hanging in a wardrobe showed female and male clothing.

28. The Tribunal considers that the evidence presented relating to the parties’ residential addresses and division of household tasks is consistent with the relationship claimed. The Tribunal finds the nature of the household at the time of application and at the time of decision is an indicator of a genuine and continuing spousal relationship.

    Social aspects of the relationship

29. The Tribunal considered the evidence in relation to the social aspects of the relationship including whether the parties 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 the persons plan and undertake joint social activities.

30. The applicant told the Tribunal that although his family did not attend the wedding ceremony because they were not in Australia, they were able to witness the ceremony by live online streaming. He said his siblings and mother made comments during the ceremony. He said a family friend, Mr Daniel Sawe, attended in person.  The applicant said the sponsor’s son, sibling, nieces, nephews and friends attended the wedding.

31. Photos of the parties including photos taken on their wedding day were provided. Photos of the parties with other people in social settings were provided. The identities of the other people and descriptions of the occasions were not provided. Only two of the photos were dated and they were indicated to have been taken on Christmas Day 2018. At the hearing the applicant identified some of the photos as showing he and the sponsor with the sponsor’s sister and the sponsor’s son in 2019.

32. Photos of the applicant and the sponsor only indicated to have been taken on Rottnest Island in February 2018 and at Kalbarri in November 2017 were provided.

33. Following the hearing the applicant provided several photos of the parties with family and friends. The photos were dated in 2020 and 2021 and many of them were described as celebrations of events such as the sponsor’s son’s birthday and the sponsor’s sister and family visiting from Perth.

34. At the hearing the applicant and the sponsor gave consistent evidence that in their leisure time they enjoy hiking together.

35. Written statements made by friends of the parties, Ms Natalie Veras and Mr Daniel Sawe, were provided. Ms Veras and Mr Sawe both stated that they socialise with the parties on a regular basis and they both attended the parties’ wedding. Ms Veras and Mr Sawe both stated they believed the parties’ relationship to be genuine however neither provided their reasons for that belief in their statements.

36. The applicant described Ms Veras as his and the sponsor’s closest family friend. He said they spend most celebratory occasions such as birthdays and Christmas with her. He said they most recently spent time with her two or three weeks ago.

37. At the hearing Ms Veras gave evidence by telephone. She told the Tribunal she has known the applicant since 2016 and has known the sponsor since the 1990s. She said prior to the parties relocating to Geraldton she spent time with them on a regular basis. She said since January 2020 she has visited them in Geraldton a couple of times and they have come down to Perth, most recently two weeks ago. Ms Veras said the parties spend occasions such as Christmas and birthdays with her family.  Her reasons for her belief that the parties’ relationship is genuine and continuing included that they openly show affection towards each other, they are always together and they relocated to Geraldton together. She said she knows the sponsor would only enter the commitment of marriage if she believed the relationship to be genuine. Given the period of time Ms Veras has known the parties, and given that she regularly spends time with them, the Tribunal accords her evidence significant weight.

38. The applicant described Mr Sawe as a family friend from Kenya. He said Mr Sawe had only spent time with him and the sponsor on a few occasions, the most recent being possibly in 2020.

39. At the hearing Mr Sawe gave evidence by telephone. He said he and the applicant grew up together and their families are friends. He said he represented the applicant’s family at the parties’ wedding. Mr Sawe said he had known the sponsor since 2016 and had only spent time with the parties as a couple on a few occasions, the most recent being prior to them relocating in January 2020. His reasons for his belief that the parties’ relationship is genuine and continuing included that they show love for one another and invite friends to spend time with them. Given the limited time Mr Hawes has spent with the parties as a couple, and the general nature of the reasons for his belief regarding the nature of their relationship, the Tribunal accords his evidence limited weight. 

40. In his Individual Tax Return (ITR) for the 2019/20 financial year the applicant indicated that the sponsor had been his spouse for the relevant financial year. In her ITRs for the 2018/19 and 2019/20 financial years the sponsor indicated that the applicant had been her spouse for the relevant financial years.

41. On the basis of the evidence before it the Tribunal finds that the parties represented themselves to family and friends as being married to each other at the time of application and continue to do so at the time of decision. The Tribunal also finds that the parties undertake joint social activities.

    The nature of the persons’ commitment to each other

42. The Tribunal considered the evidence in relation to the nature of persons’ commitment to each other 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.

43. The applicant told the Tribunal that the sponsor has provided him with emotional support when he was diagnosed with a serious illness in 2019. He said she stood by him and cared for him and without her support he does not think he could have survived the experience. He said he provides the sponsor with emotional support when she has family and medical issues. He said the sponsor had surgery in 2019 as part of investigating her fertility.

44. The sponsor told the Tribunal that she provides the applicant with emotional support when he has had a difficult day at work. She said he provides emotional support when she has had a difficult day at work or when she has family issues.

45. In written statements provided prior to the hearing, the applicant and the sponsor each said they hope to have a child of their own. Noting the sponsor will be 47 years old in June 2021, the Tribunal asked the parties about their plan to have a child. The applicant told the Tribunal that they initially attempted to have a child early in their relationship. He said they were not successful and the sponsor underwent surgery in 2019 as part of fertility investigations. He said he was subsequently diagnosed with a serious illness in 2019 and they decided to stop trying for a child at that time. The sponsor told the Tribunal that they were previously seeing a doctor about her fertility however when they relocated to Geraldton and both started new jobs, they decided to wait until they were settled before again attempting to have a child. She said if they are unsuccessful they will find a doctor in Geraldton to help them.

46. In the written statements the applicant and the sponsor also each stated that their future plans include finding a property in the country. During the hearing the parties each confirmed that they are saving for a deposit to purchase a property together in country Western Australia.

47. Based on the evidence the Tribunal concludes as follows:

    • The parties are married to each other under a marriage that is valid for the purposes of the Act;
    • they are not living separately and apart on a permanent basis and that they see their future as a long term one;
    • they have a mutual commitment to a shared life together to the exclusion of others; and
    •  that the relationship is genuine and continuing.

48. Given these findings 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)(a). There is no evidence indicating that the applicant does not satisfy the sub-criteria in cl.820.211(c) or (d). There is no information before the Tribunal to suggest that the sponsorship is not approved by the Minister or is not still in force. The Tribunal finds that the applicant meets cl.820.211 (2) and that he continues to meet the requirements of cl.820.211(2) at the time of decision. Therefore, the applicant meets cl.820.221.

1. In reaching this decision the Tribunal placed significant weight on the nature of the persons’ commitment to each other, the length of the relationship and the social aspects of their relationship.

2. 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.

3. 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

   Christine Kannis
   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).