Kuntz (Migration)
[2022] AATA 122
•18 January 2022
Kuntz (Migration) [2022] AATA 122 (18 January 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT: Mrs Evelyn Lovett Kuntz
CASE NUMBER: 1820361
HOME AFFAIRS REFERENCE(S): BCC2017/970376
MEMBER:Steven Griffiths
DATE:18 January 2022
PLACE OF DECISION: Adelaide
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; and
·cl 820.221(1) of Schedule 2 to the Regulations.
Statement made on 18 January 2022 at 4:19pm
CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – genuine and ongoing relationship – pooled financial resources – Last Wills and Testaments – shared responsibility for housework – family support for the relationship – cohabitation – delays in divorce proceedings – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5, 65
Migration Regulations 1994, Schedule 2, cls 820.211, 820.221; rr 1.09, 1.15CASES
He v MIBP [2017] FCAFC 206
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, Ms. Evelyn Lovett Kuntz, applied for the visa on 12 March 2017 on the basis of her relationship with her sponsor, Mr. Alfred Evan Lumme. 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 because the applicant was not the spouse, as defined in s.5F of the Act, or the de-facto partner, as defined by s.5CB of the Act, of the sponsor.
The applicant was invited to appear before the Tribunal on 10 February 2022, but following a detailed review of the submission and associated information received from the applicant prior to this intended hearing, the Tribunal determined that a decision could be made on the information provided without the requirement to hold a hearing.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The Tribunal has taken into consideration all the evidence in the Department of Home Affairs file and the Tribunal file including information provided by the applicants prior to what had been an intended hearing.
ISSUE
The issue in the present case is whether the applicant was the de-facto partner, as defined by s.5CB of the Act, at the time of the visa application, or the spouse, as defined in s.5F of the Act, of the sponsor at the time of the decision.
BACKGOUND OF THE EVIDENCE
Applicant Ms. Kuntz was born in Germany in 1965. Her parents, born 1942 & 1939, and a sister all live in Germany. She was previously married from 1983 to 12/2016, with a son who lives in Germany. She arrived in Australia on 11/12/16, having been granted a Visitor 601 Visa on 26/11/16 and to cease 16/1/17, when she was granted a Visitor 600 Visa to cease 15/6/17. She has been on a Bridging Visa WA-010 from 12/3/17.
Sponsor Mr. Lumme was born in Australian in 1976. His mother lives in Australia. He has been married twice previously, with 3 children from the first marriage, being 2002 to 2008, and no children from the second, being 12/2008 to 11/2017.
INFORMATION TO THE TRIBUNAL
Since the Department made a decision, the parties have provided further information to the Tribunal including:-
Marriage Certificate, 30/4/18
Parties joint name bank account, 27/1/17 to 31/12/18 AND 1/11/21 to 31/12/21
14 money transfers from ex-husband of applicant to applicant.
Migration Agent submission, 19/3/19
Parties joint name ownership of a car, from 26/10/18
Proof of address items for the parties in South Australia and Queensland
Parties joint name home rental / lease agreement in South Australia and Queensland
Statutory Declaration by ex-wife of sponsor on the parties relationship, 3/7/18
Photographs of the wedding of the parties, 30/4/18, and honeymoon
Form 888 Statutory Declaration by Mr. Ashley Borgeest, friend of the sponsor, 15/11/18
25 photos of the parties from 2016 to 2018 with family and friends in SA & Queensland
Form 888 Statutory Declaration by Mr Ken Edwards, friend of parties, 19/12/18
Statement by the son of the applicant on the relationship, 28/10/18
Form 888 Statutory Declaration by Ms. Claire Goff, friend of parties, 5/11/18
Details of joint purchases of household items by the parties
Joint name flight bookings, May 2018
Form 888 Statutory Declaration by Mr Bradley Pfeiffer, friend of parties, 23/11/18
Statutory Declaration Miss Rose Lumme, mother of sponsor, 16/8/18
94 pages from 2016 & 2017 of a closed group in which the sponsor and applicant met
Sponsor superannuation with applicant noted as beneficiary, 11/12/18
Applicant superannuation with the sponsor noted as beneficiary, 12/12/18 & 23/11/21
BINIRIS Pty. Ltd., confirmation of parties employment, 29/6/18
Relationship statement by Sponsor, 25/10/18
Report on Dr. Riccardo Caniato, Consultant Psychiatrist, on the applicant, 18/2/19
Relationship statement by applicant, 25/10/18
Sponsor divorce order from 1st Wife – married 10/2002 to 03/2008
Review application, 13/7/18
Applicant Movement Record, 9/12/21
Applicant divorce from first husband, Germany, 23/1/18
Applicant change of name, Germany, 11/4/89
Sponsor change of name by Deed Poll, 19/10/94
Sponsor Last Will and Testament, 4/10/21
Applicant Last Will and Testament, 4/10/21
Employment confirmation of the parties for pamphlet distribution, 13/12/21
Large number of cards between the parties over the relationship
2 photos of the parties at the Movies, 3/1/22
Is the sponsor an Australia citizen, and Australian permanent resident or an eligible New Zealand citizen?
Clause 820.211(2)(a)(i) requires that at the time of application was made the applicant is the spouse or de facto partner of an Australian citizen or Australian Permanent Resident or an eligible New Zealand citizen. The Tribunal accepts the documented evidence of the sponsor being an Australian citizen by birth.
Whether the parties are in a spouse or de facto relationship
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).
'De facto partner' is defined in 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).
In forming an opinion whether they are in a spouse or de facto relationship consideration must be given 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 r.1.09A(3) which is attached to this decision. Each of the specific matters contained in r.1.09A(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. A copy of the marriage certificate for the applicant and sponsor is on the Department’s file. The parties presented as part of the visa application documented evidence they intended to marry after the divorces for each were finalised, with the evidence they were married in Australia on 30 April 2018 provided prior to the refusal decision. There is nothing to suggest that the marriage is not valid. 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).
CLAIMS AND FINDINGS
Financial aspects of the relationship that must be considered include:-
(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 expense
The Tribunal accepts the documented evidence of the parties and determines at the time of the visa application and this decision they did not and do not have joint ownership of real estate.
The Tribunal accepts the documented evidence of the parties having joint ownership of a car and determines that at the time of decision this represents the joint ownership of a major asset.
The Tribunal determines from the documented evidence of the parties that at the time of the visa application and this decision, the parties do not have any joint liabilities.
The Tribunal accepts the documented evidence that the parties have worked while living in South Australia and Queensland.
The Tribunal accepts the documented evidence of the joint name bank account operated by the parties from 27/1/17, noting this account was opened within 6 weeks of the applicant arriving in Australia to live with the sponsor and the account has been continually used for deposits, transfers, payments and withdrawals.
The Tribunal accepts the documented evidence of the joint name bank account, noting the transactions to represent the payment in of the wage income of the parties and the outgoing expenses to represent the living and social costs of the parties, and determines at the time of the visa applicant and this decision the parties pool finances for major commitments and the sharing of day-to-day household expenses.
The Tribunal accepts the documented evidence of the superannuation accounts of the sponsor and applicant both indicating that the other is the beneficiary.
The Tribunal accepts the documented evidence of the Last Will and Testament for the for the parties details that the other is a beneficiary of their estate.
The Tribunal determines from the documented evidence that at the time of the visa application and this decision, none of the parties has a legal obligation to the other.
Nature of the household aspects that must be considered include:-
(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
The Tribunal accepts the documented and photographic evidence of the parties that the sponsor has three children from his first marriage, who live with their mother, noting the applicant has a good relationship with children and in the periods that the children spend with the children the sponsor and applicant do have joint responsibility for the care and support of children.
The Tribunal accepts the documented evidence that the applicant has an adult son, who lives in Germany with his own family, with the sponsor being part of the telephone contact the applicant regularly has with the son and his family.
The Tribunal accepts the documented and photographic evidence that in the early period of their relationship they lived apart, with the applicant in Germany and the sponsor in Australia, and it was not until 11/12/16 the applicant travelled to Australia, with the applicant and sponsor living together in rented accommodation, often share with others, at all times since, in South Australia and Queensland.
The Tribunal accepts the documented and photographic evidence of roles undertaken in the household of the parties and determines, at the time of the visa application and this decision, the parties share responsibility for housework.
Social aspects of the relationship that must be considered include:-
(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
The Tribunal accepts the documented and photographic evidence of the contact the parties have with family and friends and determines, at the time of application and his decision, the parties have and do represent themselves to other people as being a committed couple, initially as de facto partners, then engaged and from 30/4/18 as a married couple.
The Tribunal accepts the documented and photographic evidence of the parties holding their marriage celebration on 30/4/18 with family and friends.
The Tribunal accepts the documented and photographic evidence that the parties families and their individual and collective friends, at the time of the visa application and this decision, are extremely supportive of the de facto relationship and then marriage.
The Tribunal accepts the documented and photographic evidence that the parties have planned and undertaken joint social activities since the parties began living together on 11/12/16 and determines, at the time of the visa application and this decision, the parties plan and undertake joint social activities.
Nature of the commitment to each other that must be considered include:-
(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.
The Tribunal accepts the documented and photographic evidence of the parties meeting online in April 2015 while the applicant was in Germany, the parties becoming very close and the sponsor asking the applicant to travel to Australia, with their first physically meeting in Adelaide, South Australia, on 11/12/16, with their engagement on 6/7/17 and marriage on 30/4/18.
The Tribunal accepts the documented evidence that the parties have lived together at all times, in South Australia and Queensland, from the arrival of the applicant in Australia on 11/12/16.
The Tribunal accepts the documented evidence of the accounts for the rental and lease of the homes occupied by the parties is in joint names, as it the accounts for services to the homes.
The Tribunal accepts the documented evidence of the parties of the support the parties have provided to each other and determines, at the time of application and this decision, a high level of companionship and emotional support is provided by each of the parties to the other.
The Tribunal accepts the documented evidence of the relationship and determines, at the time of application and this decision, the parties have an ongoing commitment to each other, the relationship, their marriage and family.
The Tribunal considered all the evidence on the circumstances of the parties and determines the evidence supports a finding that at the time of the application and this decision, the parties have had and continue to have a mutual commitment to a shared life together as a couple to the exclusion of all others, with the relationship genuine and continuing and they have and continue to live together.
Any other circumstances of the relationship
The Tribunal accepts the documented evidence that the previous marriage of the applicant was in 1983, and from approximately 2000 she was unhappy with the relationship, due to the actions of her previous husband, and while she left Germany to live in Australia, she did not able to finalise her divorce until 23/1/18.
The Tribunal accepts the documented evidence that the sponsor was married twice previously, with the second marriage resulting in the parties living apart from late 2010, but the previous wife would not allow divorce to be completed, and it was not until 2017.
On the basis of the above the Tribunal is satisfied that the requirements of s 5CB were met at the time of the visa applicant and the requirement of s 5F(2) are met at the time of this decision.
Therefore the applicant meets cl 820.211(2)(a) and cl.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; and
·cl 820.221(1) of Schedule 2 to the Regulations.
Steven Griffiths
MemberATTACHMENT - Extract from Migration Regulations 1994
1.09ADe facto partner and de facto relationship
(1)For subsection 5CB (3) of the Act, this regulation sets out arrangements for the purpose of determining whether 1 or more of the conditions in paragraphs 5CB (2) (a), (b), (c) and (d) of the Act exist.
Note 1 See regulation 2.03A for the prescribed criteria applicable to de facto partners.
Note 2 The effect of subsection 5CB (1) of the Act is that a person is the de facto partner of another person (whether of the same sex or a different sex) if the person is in a de facto relationship with the other person.
Subsection 5CB (2) sets out conditions about whether a de facto relationship exists, and subsection 5CB (3) permits the regulations to make arrangements in relation to the determination of whether 1 or more of those conditions 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 in a de facto relationship with 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).
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).
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Immigration
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Administrative Law
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Judicial Review
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Procedural Fairness
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