KWON (Migration)

[2017] AATA 2318

KWON (Migration) [2017] AATA 2318 (9 November 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr TAEWOOK KWON

CASE NUMBER:  1616736

DIBP REFERENCE(S):  BCC2016/2797948

MEMBER:Susan Trotter

DATE AND TIME OF

ORAL DECISION AND REASONS:          9 November 2017 at 4:23 pm (QLD time)

DATE OF WRITTEN RECORD:                13 November 2017

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 (Temporary)) visa:

·cl.820.211(2) of Schedule 2 to the Regulations

·cl.820.221(1) of Schedule 2 to the Regulations

Statement made on 13 November 2017 at 8:17am

CATCHWORDS

Migration – Partner (Temporary) (Class UK) visa – Subclass 820 (Spouse) – Genuine spousal relationship – Shared income and expenses – Joint responsibility for household – Representation of relationship

LEGISLATION

Migration Act 1958, ss 5F, 65

Migration Regulations 1994, r 1.15A, Schedule 2, cl 820.211, 820.221

CASES

Bretag v Immigration Review Tribunal [1991] FCA 755

Minister for Immigration and Ethnic Affairs v Pochi (1980) 4 ALD 139

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 20 September 2016 to refuse to grant the visa applicant, Mr Kwon, a Partner (Temporary) (Class UK) Subclass 820 visa under the Migration Act 1958 (the Act).

2. At the hearing on 9 November 2017, the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

   STATEMENT OF DECISION AND REASONS

3. Mr Kwon applied for the visa on 23 August 2016 on the basis of his relationship with his sponsor, Ms Ae Sook Nam. At that time, Class UK contained only one subclass: Subclass 820 (Partner (Temporary)). The criteria for the grant of this visa are set out in Part 820 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.

4. The delegate refused to grant the visas on the basis that there was insufficient evidence to demonstrate that Mr Kwon and Ms Nam are spouses.

5. Mr Kwon lodged an application for review of the delegate’s decision in relation to the subclass 820 visa with the Tribunal on 23 August 2016.

6. Mr Kwon appeared before the Tribunal on 9 November 2017 to give evidence and present arguments. The Tribunal also received sworn oral evidence from Ms Nam, Ms Nam’s daughters, Ms Susie Nam and Ms Min Sie Nam, Mr Dominic Cheng (Ms Susie Nam’s partner) and Ms Shannon Logan.

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

   ISSUES

8. There is a two stage process for partner visas. The applicant must hold a provisional visa in order to be granted a permanent visa. The grant of the provisional visa enables an applicant to remain in Australia on a temporary basis. The grant of a permanent visa may subsequently be considered and will generally depend on whether the relationship has continued for a period of at least two years.

9. The Partner (Temporary) (Class UK) visa class contains one visa subclass, Subclass 820 Partner.

10. The criteria are contained in part 820 of schedule 2 to the Regulations.

11. Clauses 820.211(2) and 820.221(1) require that, at the time of the visa application and at the time of the decision, the applicant is either the spouse or de facto partner of an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen, and that the other requirements in cl.820.211(2) are met.

12. In the present case, Mr Kwon claims to be the spouse of Ms Nam, an Australian citizen who is not prohibited from being a sponsor.

13. ‘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 they 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 their household and their commitment to each other as set out in r.1.15A(3), which is extracted in the attachment to this decision.

14. Cl.820.211(2)(c) requires the applicant to be sponsored by their spouse or de facto partner if the spouse or de facto partner has turned 18.

15. Additionally, the applicant must either be the holder of a substantive visa at the time of application, or further requirements must be met, pursuant to cl.820.211(2)(d).

16. It follows that the issues for the Tribunal to determine are as follows:

    (a)  Was and is Mr Kwon the spouse of Ms Nam at the time of application and at the time of decision?, that is:

    (i)were and are Mr Kwon and Ms Nam validly married[1]?; and

    (ii)were and are the other requirements for a spousal relationship met[2]?; and, if so,

    (b)  Is Mr Kwon sponsored as required?; and

    (c) Did Mr Kwon hold a substantive visa at the time of the visa application or were the further requirements of cl.820.211(2)(d) met?

    [1] s.5F(a) of the Act

    [2] s.5F(b)-(d) of the Act

    CONSIDERATION OF CLAIMS AND EVIDENCE

17. The Tribunal queried Mr Kwon and Ms Lam at hearing at length about the inception and history of their relationship and their current circumstances. The Tribunal accepts their evidence, both in statements before the Tribunal and in oral evidence, in full.

    Issue 1 - Was and is Mr Kwon the spouse of Ms Nam at the time of application and at the time of decision?

    Were and are Mr Kwon and Ms Nam validly married[3]

    [3] s.5F(a) of the Act

18. If the parties are validly married, they may meet the requirements of a spousal relationship, but not a de facto relationship.

19. The Tribunal has been provided with a copy of a certified copy of a marriage certificate certifying that Mr Kwon and Ms Nam were married on 28 July 2016 at Sunnybank, Brisbane, Queensland. The Tribunal is therefore satisfied on the evidence that Mr Kwon and Ms Nam were married to each other under a marriage that is valid for the purposes of the Act as required by s.5F(2)(a), were married at the time of the visa application on 23 August 2016 and continue to be married as at the date of decision.

    Were and are the other requirements for a spousal relationship met[4]?

    [4] s.5F(b)-(d) of the Act

20. The Tribunal took into account all the circumstances of the relationship, including the r.1.15A matters to which it is required to have regard, in considering whether the other requirements for a spousal relationship were met at the time of the visa application and are met now.

21. The Tribunal notes the decision of Bretag v Immigration Review Tribunal [1991] FCA 755 in which O'Loughlin J quoted from Minister for Immigration and Ethnic Affairs v Pochi (1980) 4 ALD 139 at 160, and indicated that the Tribunal may have regard to the subsequent history of a relationship for the purpose of testing or determining whether the relationship was genuine at the time of application, so long as it "tends logically to show the existence or non-existence of facts relevant to the issue to be determined". To the extent relevant the Tribunal has had regard to subsequent events and evidence in assisting its assessment of the relationship at the time of the visa application.

    Financial aspects of the relationship

22. The Tribunal is satisfied on the evidence before it, both documentary and oral, that Mr Kwon and Ms Nam share income and all expenses jointly. Notably, they both gave consistent details at hearing as to how they manage their finances and gave consistent evidence as to quantum of their joint savings. Other financial documentation consistent with their claimed relationship included Mr Kwon’s tax return which included Ms Nam as his spouse from 28 July 2016, the date of their marriage, and registration documents showing purchase of a car in both their names in October 2016

23. Having had regard to all of the evidence before it in this regard, the Tribunal is satisfied that evidence of the financial aspects of the relationship between Mr Kwon and Ms Nam was consistent with their claimed relationship at the time of the visa application and is now at the time of decision.

    The nature of the household

24. The Tribunal is satisfied that Mr Kwon and Ms Nam have shared a household, together with Ms Nam’s daughters and other family members, since May 2016. The Tribunal is also satisfied that they take joint responsibility for household chores, with Ms Nam doing most of the cooking and Mr Kwon attending to all other responsibilities including laundry for the whole family (particularly on Sundays) and most other household duties including general maintenance.

25. The Tribunal had before it joint bank account statements addressed to them at the same address together with numerous other pieces of correspondence, although addressed to them individually, bearing the same residential address.

26. The Tribunal also acknowledges the evidence of Ms Susie Nam and Ms Min Sie Nam supporting that Mr Kwon and Ms Nam have been living together since May 2016, and further supporting the distribution of household chores as described by Mr Kwon and Ms Nam in their evidence.

27. The Tribunal is satisfied based on the evidence before it that the nature of Mr Kwon’s and Ms Nam’s household was consistent with their claimed relationship at the time of the visa application and is now at the time of decision.

    Social aspects of the relationship

28. The Tribunal is satisfied on the evidence that Mr Kwon and Ms Nam represent themselves to other people as being married, and have done since 28 July 2016 when they married witnessed by their family and friends. The Tribunal is further satisfied that that it is the opinion of friends and acquaintances that they are in a genuine married relationship. The Tribunal is also satisfied that they plan and undertake social activities together, including with family. The Tribunal had the benefit of considerable evidence in this regard include voluminous photographic evidence of many different social outings and also the benefit of evidence in person from Ms Susie Nam, Ms Min Sie Nam, Mr Cheng and Ms Logan confirming their recognition of Mr Kwon and Ms Nam as representing themselves as husband and wife.

29. Having regard to all of these matters, the Tribunal is satisfied that the social aspects of Mr Kwon’s and Ms Nam’s relationship was consistent with their claimed relationship at the time of the visa application and is now at the time of decision.

    The nature of the persons’ commitment to each other

30. The Tribunal is satisfied that Mr Kwon and Ms Nam have known each other since April 2016, have lived together since May 2016 and have been married since 28 July 2016. Whilst their relationship has been of relatively short duration, the Tribunal is satisfied that they are not young people and they are of a relatively mature age. Their evidence was that they have both experienced divorce so they knew with some certainty from early in their relationship that the relationship was a relationship to which they each wanted to commit long-term. Further, given their respective ages they did not want to delay their commitment any longer than necessary. Ms Nam’s evidence was that she had been on her own for a long time prior to meeting Mr Kwon and knew as soon as she met him that he was the sort that was for her and she felt like she had known him for a long time despite.

31. The Tribunal notes that it questioned Ms Kwon and Ms Nam separately at hearing about specific details of their relationship such as their daily routine. They both gave consistent, but not identical so as to suggest rehearsed, evidence, of what their daily routine entails including by way of example, their joint meal the night before the hearing and how they spent their last day off work prior to the hearing.

32. The Tribunal observes that it also had the benefit of observing Mr Kwon and Ms Nam at hearing, in company with their family (including Mr Kwon’s son who was present as a support person but not a witness) and a friend.

33. The Tribunal is satisfied that they demonstrate a significant degree of companionship and emotional support, as was witnessed at hearing and that they both see the relationship as long-term.

34. The Tribunal is satisfied that there is very significant evidence before it, significantly more than was before the Department, in relation to all of the circumstances of Mr Kwon’s and Ms Nam’s relationship. Having regard to all matters, including the regulation 1.15A matters to which it is required to have regard, the Tribunal is satisfied that Mr Kwon and Ms Nam, as at the time of the visa application and at the time of the decision, had and have a mutual commitment to each other as husband and wife to the exclusion of all others, that the relationship between them was, at the time of the visa application, and is now, genuine and continuing, and that, at the time of the visa application and now, they live together. As the requirements of s.5F have all been met, the Tribunal is satisfied that, at the time of the application and now, Mr Kwon was the spouse of Ms Nam and accordingly the requirements of cl.820.211(2)(a) were and are met at both points in time, as required.

35. Further, there is no evidence that Ms Nam is prohibited from being a sponsor. The Tribunal therefore finds that the requirements of cl.820.211(2)(a) were met at the time of the visa application and continue to be met at the time of decision such that cl.820.221(1) is also met.

    Issue 2 - Is Mr Kwon sponsored as required?

36. The Tribunal is satisfied that Ms Nam sponsored the visa application and is over the age of 18 years, and the Tribunal therefore finds that the requirements of cl.820.211(2)(c) are also met. The Tribunal is also satisfied, on the evidence before it, that Mr Kwon and Ms Nam are not related by family.

    Issue 3 - Did Mr Kwon hold a substantive visa at the time of the visa application or were the further requirements of cl.802.211(2)(d) met?

37. The Department’s records show, and the Tribunal finds, that Mr Kwon held a substantive visa, specifically a tourist visa, at the time of the visa application. Clause 820.211(2)(d) is therefore also met.

38. Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for the grant of Subclass 820 visa to Mr Kwon.

    DECISION

39. The Tribunal remits the applications for Partner (Temporary) (Class UK) visas, with the direction that the first named applicant meets the following criteria for a Subclass 820 (Partner (Temporary)) visa:

    ·cl.820.211(2) of Schedule 2 to the Regulations; and

    ·cl.820.221(1) of Schedule 2 to the Regulations.

    Susan Trotter
    

    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).