Kuo (Migration)

[2017] AATA 1468

Kuo (Migration) [2017] AATA 1468 (18 August 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Hsiu-fen Kuo

CASE NUMBER:  1613421

DIBP REFERENCE(S):  CLF2016/47614

MEMBER:Michelle East

DATE:18 August 2017

PLACE OF DECISION:  Perth

DECISION:The Tribunal remits the application for a Partner (Residence) (Class BS) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 801 (Partner) visa:

·cl.801.221 of Schedule 2 to the Regulations

Statement made on 18 August 2017 at 3:43pm

CATCHWORDS
Migration – Partner (Residence)(Class BS) – Subclass 801(Partner) – Hearing not required – More complete evidence provided since Department’s decision – Evidence shows parties in genuine ongoing relationship

LEGISLATION
Migration Act 1958, ss 5F, 65, 360(2)(a)
Migration Regulations 1994, Schedule 2, cl 801.221, r 1.15A

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 Immigration on 18 August 2016 to refuse to grant the applicant a Partner (Residence) (Class BS) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on the basis of her relationship with her sponsor. At that time, Class BS contained only one subclass: Subclass 801 (Partner). The criteria for the grant of this visa are set out in Part 801 of Schedule 2 to the Migration Regulations 1994 (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. Relevantly to this matter the primary criteria include cl.801.221.

3. The delegate refused to grant the visa on the basis that the applicant did not satisfy cl.801.221 because the delegate was not satisfied on the limited evidence provided that the applicant and her sponsor continued to be in a genuine relationship.

4. In reaching its decision the Tribunal did not consider a hearing to be necessary as it was able to find in favour of the visa applicant on the basis of the material before it, pursuant to s.360(2)(a) of the Act.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Whether the parties are in a spouse or de facto relationship

6. Relevantly to this matter, cl.801.221(2)(c) requires that at the time of this decision, the applicant is the spouse of the ‘sponsoring partner’, who must be an Australian citizen or Australian permanent resident or an eligible New Zealand citizen who was specified in the related Subclass 820 visa application as the spouse or de facto partner of the applicant. In the present case the applicant claims to be the spouse of the sponsor who is an Australian citizen and was identified in the Subclass 820 visa application. On the evidence before it, the Tribunal is satisfied that the sponsor is the ‘sponsoring partner’ of the applicant.

7. ‘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 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 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 visa applicant’s and sponsor’s household and their commitment to each other as set out in r.1.15A(3), which is extracted in the attachment to this decision.

   Are the parties validly married?

8. If the parties are validly married, they may meet the requirements of a spousal relationship, but not a de facto relationship. The Tribunal has been provided with a copy of the parties’ Marriage Certificate issued by the Registry of Births, Deaths and Marriages in Western Australia. The parties were married on 18 November 2012. 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 spousal relationship met?

   History of application

9. The applicant was originally granted a sub-class 300 prospective marriage visa and arrived in Australia on 3 August 2012.  On 6 December 2012 she applied for a Partner (Temporary)(Class UK)(Subclass 820) and a Partner (Residence)(Class BS)(Subclass 801) visa.  Her husband, Mr Nichols lodged a sponsorship in support of the application.  On 11 December 2012 she was granted a subclass 820 visa.

10. An initial request for further information was sent on 21 October 2014 and no response was received.  The Department wrote again on 30 April 2016 and two further emails were sent on 9 May 2016.  No response to those requests for further information was received.  The delegate made the decision based on no further information being provided, to find the criteria for the grant of a Partner (Residence)(Class BS)(Subclass 801) visa were not met.

11. The Tribunal has received further information from the parties as evidence of their ongoing spousal relationship.

12. The Tribunal has had regard to the evidence provided relating to the financial aspects of the parties relationship including joint ownership of assets and joint liabilities, the extent of any pooling of financial resources, any legal obligations owed by the other party and any sharing of the day to day household expenses.

13. The parties have provided a copy of the sponsor’s will.  He bequeaths his estate entirely to the applicant.  A copy of the Certificate of Title to their property in Camillo has been provided which shows the parties as joint tenants of the property.  The sponsor said he transferred the property from his own name to theirs as joint tenants.  The sponsor’s life insurance policy has also been provided which nominates the applicant as his 100% beneficiary.

14. Evidence provided indicates the sponsor is on a pension and the applicant supplements their income by undertaking massage.  She stated she sub-contracts to a clinic in Roleystone and also provides massage service at home.  The parties have said they share the household bills and everyday expenses.

15. Based on the nature of the evidence provided, the Tribunal places great weight on the financial indicators of the parties’ relationship.  The applicant is a joint tenant on the parties’ household and she is sole beneficiary in his will.  The Tribunal is satisfied the parties’ financial arrangements are such that would indicate a genuine spousal relationship.

16. The Tribunal has had regard to the evidence provided relating to the nature of the parties’ household including any joint responsibility for the care and support of children, the parties’ living arrangements and the sharing of housework.

17. As noted above, the parties are joint tenants on the title to their residence.  A Water Corporation account addressed to both parties for the period to June 2017 has been provided.

18. The parties have both provided statements in support of their application.  They both state the applicant does the cooking and the sponsor cleans up.  The sponsor said he also does the vacuuming and they both share the remainder of the chores.

19. The Tribunal is satisfied based on the information provided that the nature of the parties’ household is an indicator of a genuine spousal relationship.

20. The Tribunal has had regard to the evidence provided relating 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 parties plan and undertake joint social activities.

21. Evidence provided reflects the parties’ ongoing involvement with their church.  A letter of support was provided by their Pastor attesting to their involvement in church activities and the respect, love and appreciation they receive from the congregation.

22. Letters of support were provided by the sponsor’s sister, the applicant’s employer, sponsor’s son and a family friend.  All these statements attest to the strength and genuineness of the parties’ relationship.  Several photos of the parties with friends and family were also provided.

23. The Tribunal is satisfied based on the evidence provided that the social aspects of the parties’ relationship are an indicator of a genuine spousal relationship.

24. The Tribunal has had regard to the evidence provided relating to the nature of the parties’ 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.

25. The parties met on an online dating service in mid- August 2011.  The sponsor sponsored the applicant on a prospective marriage visa and the parties married on 18 November 2012.  Shortly after, the applicant applied for her sub-class 820 visa which was granted on 11 December 2012.

26. The evidence provided to the Tribunal portrays a couple who have supported one another in all aspects of their lives.  Their own statements indicate they are committed to one another.  The parties attend the same church together and in November 2015 the applicant was baptised.  The sponsor has also said that prior to meeting the applicant his health was poor but since meeting her she has improved his diet and encouraged him to exercise more.  He says they are happy and content together and that ‘love like ours is rare these days, we are dedicated to each other to the end’.  Statements from friends and family support the applicant’s evidence.

27. The Tribunal is satisfied based on the evidence provided to the Tribunal that the nature of the parties’ commitment and degree of companionship and emotional support they draw from each other is such that would be indicated in a genuine spousal relationship.

28. The Tribunal finds that the applicant and sponsor have a mutual commitment to a shared life together to the exclusion of all others, the relationship is genuine and continuing and they live together on a permanent basis.

29. Given these findings the Tribunal is satisfied that at the time of this decision the parties are in a spousal relationship and therefore the requirements of s.5F(2) are met. Therefore the applicant meets cl.801.221(2)(c).

30. 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 801 visa.

    DECISION

31. The Tribunal remits the application for a Partner (Residence) (Class BS) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 801 (Partner) visa:

    ·cl.801.221 of Schedule 2 to the Regulations

    Michelle East
    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).