Koppens (Migration)

[2023] AATA 904

Koppens (Migration) [2023] AATA 904 (12 April 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Sharon Ann Koppens

REPRESENTATIVE:  Mrs Elizabeth Maddock (MARN: 1570207)

CASE NUMBER:  1925956

HOME AFFAIRS REFERENCE(S):          BCC2018/1510985

MEMBER:Tegen Downes

DATE:12 April 2023

PLACE OF DECISION:  Brisbane

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 12 April 2023 at 9:52am

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – genuine and continuing relationship – quick timeline of initial relationship and application – extensive current evidence and submissions provided to tribunal – valid marriage and length of relationship – financial, household and social aspects of relationship and nature of commitment – decision made without hearing necessary – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5CB, 5F(2)(a), 65, 360
Migration Regulations 1994 (Cth), rr 1.15A(3), 2.03A, Schedule 2, cl 820.211(2)(a), 820.221

CASES
Ally v MIAC [2008] FCAFC 49
He v MIBP [2017] FCAFC 206
Jayasinghe v MIMA [2006] FCA 1700

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

Formalities

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 section 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 3 April 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).

3. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy clause 820.211(2)(a) of Schedule 2 of the Regulations because the delegate considered that the evidence and information provided was not sufficient to demonstrate that the applicant was the spouse or de facto partner of the sponsor, as defined under s 5F and s 5CB of the Act.

4. The applicant was represented in relation to the review.

5. The application was initially listed for hearing on 17 January 2023. Before the hearing, the applicant submitted approximately 350 pages of written submissions and written and documentary evidence. The applicant had also submitted additional written and documentary evidence to the Tribunal before the matter was constituted to me.

6. The initial hearing date was vacated to enable me to consider the submission that ‘due to the overwhelming evidence supplied… this is a case that the Tribunal can decide the review in the applicant's favour on the basis of this submission and supporting documents… without hearing’.

7. I considered the submissions and evidence that was submitted but I was not satisfied that I could decide the matter in the applicant’s favour. This was namely because there was insufficient evidence as to the current circumstances of the relationship. The evidence provided was dated between in or about 2018 to 2021 only (there was no evidence from 2022 or 2023) and the statements from the applicant and the sponsor were not in the form of a statutory declaration or affidavit.

8. I gave the applicant a further opportunity to provide information to the Tribunal. The applicant provided almost 700 pages of written submissions and written and documentary evidence in response.

9. After carefully considering the submissions, information and evidence provided, I accepted the representative’s submission and did not invite the applicant to appear before the Tribunal in accordance with s 360 of the Act because I considered that I should decide the review in the applicant’s favour based on the material before me.

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

ISSUES AND LAW

1. This review application relates to an application for a provisional partner visa to enable the applicant to remain in Australia on a temporary basis.

1. The primary issue in this review application is whether, at the time the visa application was made, and at the time of this decision, the applicant is the spouse or de facto of an Australian citizen, for the purposes of cl 820.211(2)(a) and cl 820.221 of Schedule 2 of the Regulations.

2. ‘De facto partner' is defined in s 5CB of the Act, which provides that a person is in a de facto relationship with another person to whom they are not married if they have a mutual commitment to a shared life to the exclusion of all others, the relationship is genuine and continuing, the couple live together, or do not live separately and apart on a permanent basis, and the couple are not related by family: s 5CB(2).

3. ‘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).

4. 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.

5. In forming a view of the relationship at the time of application, the Tribunal must consider all relevant evidence, which may include evidence of events after the date of application insofar as it assists in the task of determining whether the visa applicant and the sponsor were in a partner relationship at the time of the application. Evidence of events after the visa application is relevant if it tends logically to show the existence or non-existence of facts relevant to the issue to be determined: Ally v MIAC [2008] FCAFC 49 at [32]–[35]; Jayasinghe v MIMA [2006] FCA 1700 at [35], citing MIEA v Poche (1980) 4 ALD 139.

1. If the primary issue is resolved in the applicant’s favour, the secondary issues are whether, at the time of the visa application and at the time of this decision, the visa applicant satisfies the other requirements of cl 820.211 and cl 820.221.

CONSIDERATION OF CLAIMS AND EVIDENCE

Background

1. The applicant is a 61-year-old woman from Canada. At the time of application, she claimed to be in a de facto relationship with her sponsor, a 54-year-old Australian citizen. She now claims to be in a married relationship with her sponsor.

2. The couple claim to have met in November 2016 when they were both living in the same apartment block in Canada. They claim to have started spending time together in December 2016 and to have started a romantic relationship on 10 January 2017.

3. They claim that the sponsor wanted to move back to Australia and that he invited the applicant to move with him. They planned that the sponsor would move to Australia at the end of January 2017 and that the applicant would come to Australia to spend time with him once he was settled.

4. They claim that the applicant visited the sponsor for three weeks in March 2017, before moving to Australia in June 2017. At the time, the applicant had a one-year Tourist visa, which was still in effect when she applied for the visa that is the subject of this review.

5. They claim that the de facto relationship commenced in March 2017 when the applicant arrived in Australia. They claim that they were married on 26 October 2019 and that they continue to be in a genuine relationship.

6. While the initial trajectory of the relationship was quick, the couple now have the benefit of almost six years of documentary evidence to substantiate the genuineness of their relationship. I accept the couple’s claims as true based on the written and documentary evidence.

7. I am satisfied that this is a matter where the applicant submitted limited documentary evidence to the Department in support of the visa application and then provided extensive evidence to the Tribunal that was unavailable to the primary decision maker.

Are the additional criteria for a de facto relationship met?

1. At the time of application, the couple claimed to be in a de facto relationship. Persons claiming to be in a de facto relationship for a partner visa must meet the additional criteria in reg 2.03A.

2. The first criterion is that both members of the couple must be at least 18 years old: reg 2.03A(2). In this case, at the time of application, the applicant and the sponsor were at least 18 years old.

3. Secondly, the applicant must have been in the de facto relationship for at least the 12-month period ending immediately before the date of the application: reg 2.03A(3). I note that the couple do not claim to have lived together for the duration of the 12 months preceding the application and that the applicant gave a statutory declaration on 15 December 2018 stating that her three-week visit to Australia was ‘to see if I would like it here’.

4. While this is not compelling evidence that the relationship was at that time, in fact, a de facto relationship, I note that it is not necessarily inconsistent with such. I also note, the trajectory of the relationship aside, there is no other evidence that would tend to suggest that the couple was not in an exclusive and committed relationship at the time the applicant first arrived in Australia. Accordingly, having regard to the evidence of the relationship as a whole, I find that the couple was in a de facto relationship for at least the 12-month period ending immediately before the date of the application.

5. Accordingly, I am satisfied that, at the time of application, the applicant met the additional criteria prescribed in reg 2.03A.

Are the parties validly married?

1. The couple submitted a marriage certificate issued by the Registry of Births, Deaths and Marriages in Queensland certifying that they were married on 26 October 2019 in Upper Coomera, Queensland.

2. Accordingly, in the absence of any evidence to the contrary, the Tribunal is satisfied that, at the time of decision, 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).

Are the other requirements for a married relationship met?

Financial aspects of the relationship

1. I have considered all of the written and documentary evidence and find that, at the material times, the financial aspects of the relationship are consistent with a de facto or married relationship, as defined in the Act.

2. The evidence indicates that the couple have financially established a joint household and a joint business together. Given the volume of evidence and the duration of the relationship, I have not referenced all of the evidence provided. However, I have considered all of the evidence and make the following findings based on that evidence:

   a.At the time of application, the couple did not have any joint assets. At the time of decision, the couple have the following joint assets: a joint account opened in or about 2020; shares; a property management rights business purchased in December 2021; and a car and a house purchased using joint funds (meaning the applicant has an equitable interest in these assets, despite title being registered to the sponsor only).

   b.At the time of application, the couple did not have any joint liabilities. At the time of decision, they have a joint loan agreement for the purchase of their car.

   c.At the material times, the couple have shared day-to-day household expenses and have pooled their financial resources.

3. I note that the couple do not claim to owe any legal obligations owed to the other party, and I make a finding accordingly.

Nature of the household

1. The couple claim to have commenced their de facto relationship in March 2017 and to have spent three weeks travelling in Australia. They then claim to the effect that they lived separately, temporarily, when the applicant returned to Canada pending the approval of her next visa.

2. The couple claim to have subsequently lived at two addresses in Australia, being an apartment at Southport from May 2017 until February 2018 and at the Upper Coomera house from February 2018 until today.

3. I accept these claims based on the couple’s statutory declarations and various corroboratory documentary evidence submitted to the Tribunal, which cites the couple’s shared addresses.

4. The couple have detailed in their statutory declarations how they manage the cooking, cleaning and yard work. I accept their claims as true and find that the couple shares responsibility for housework.

5. The couple do not have any dependent children. Accordingly, I consider the joint responsibility for care and support of children is not applicable.

6. I find that the nature of the household was, at the time of application, indicative of a de facto relationship and, at the time of decision, is indicative of a married relationship, as defined in the Act.

Social aspects of the relationship

1. There is compelling evidence before the Tribunal regarding the social aspects of the relationship: including photographs of the couple together over the course of their relationship, including attending milestone birthdays and weddings of each other’s family members; statements and statutory declarations from friends and family members; and evidence of joint social activities such as joint tickets to sporting events.

2. I have considered this evidence and find, based on this evidence, that at the material times, the couple represent themselves to other people as being in a de facto or married relationship, that the couple’s family, friends and acquaintances believe the relationship between the couple to be genuine and continuing and that the couple plan and undertake joint social activities. I find that, at the material times, the social aspects of the relationship are indicative of a de facto or married relationship, as defined in the Act.

Nature of persons’ commitment to each other

1. The couple has been in a relationship for six years and has lived together for almost the same period of time. Having regard to the totality of the evidence and the statutory declarations from the couple, it is evident, and I find, that they draw a degree of companionship and emotional support from each other consistent with a couple in a genuine and committed relationship and that they see the relationship as long-term.

2. I find that at the material times, the nature of the couple’s commitment to each other is consistent with a de facto and married relationship, as defined in the Act.

Conclusion

1. In view of the above findings, I am satisfied that, at the material times, the couple have had a mutual commitment to a shared life (and since the date of marriage, as a married couple) to the exclusion of all others, that the relationship is genuine and continuing and that the couple live together or do not live separately and apart on a permanent basis for the purposes of s 5CB(2) (a) to (c) and s 5F(2)(b) to (d) of the Act. I am also satisfied that the couple are not related by family for the purposes of s 5CB(2)(d) of the Act.

2. Accordingly, I am satisfied that, at the time of application, the requirements of s 5CB were met and that the couple was in a de facto relationship as defined in the Act. I am also satisfied that at the time of this decision, the couple are in a married relationship as defined in s 5F of the Act.

3. Therefore, at the relevant times, the applicant meets cl 820.211(2)(a) as the visa applicant is the spouse (and previously, the de facto partner) of the sponsor, who is an Australian citizen.

Are the other visa criteria met?

1. As the primary issue has been resolved in the applicant’s favour, it is incumbent on the Tribunal to consider whether the applicant met the other requirements of cl 820.211(2) at the time of application, and whether the applicant continues to meet those requirements at the time of this decision, in accordance with cl 820.211(1)(a).

2. For the following reasons, the Tribunal is satisfied that these requirements are met.

3. At the material times, the Regulations did not contain a cl 820.211(2)(b).

4. Cl 820.211(2)(c)(i) requires that, if the applicant’s spouse has turned 18, the applicant is sponsored by the spouse of the de facto partner. Reg 1.20 relevantly provides that the ‘sponsor’ of an applicant is a person who provides an undertaking to assist the applicant, to the extent necessary, financially and in relation to accommodation during the period of 2 years immediately following the grant of the temporary visa.

5. There is evidence before the Tribunal that the sponsor completed the Department’s online form for Sponsorship for a partner to migrate to Australia, which included the relevant undertaking, on or about 18 November 2018. There is no evidence before the Tribunal that the sponsor has withdrawn his sponsorship. Accordingly, the Tribunal is satisfied that at the material times, the applicant was and is sponsored by her spouse in accordance with cl 820.211(2)(c).

6. Cl 820.211(2)(d) only applies to an applicant who was not the holder of a substantive visa at the time of application.  As the applicant held a substantive visa at the time of application, it does not apply.

CONCLUSION

1. 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

1. 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

Tegen Downes
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).

1. 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.

1. 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).