Lansky (Migration)

[2022] AATA 4492

Lansky (Migration) [2022] AATA 4492 (23 November 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Rosalyn Bangian Lansky

CASE NUMBER:  1818456

HOME AFFAIRS REFERENCE(S):          BCC2016/3272366

MEMBER:David Crawshay

DATE:23 November 2022

PLACE OF DECISION:  Melbourne

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 of Schedule 2 to the Regulations; and

·cl.820.221 of Schedule 2 to the Regulations; and

·Public Interest Criterion 4007 for the purposes of cl.820.223(1)(a) of Schedule 2 to the Regulations.

Statement made on 23 November 2022 at 3:25pm

CATCHWORDS
MIGRATION –Partner (Temporary) (Class UK) visa – Subclass 820 – parties have been living together – genuine and committed spouse relationship at the date of decision –PIC 4007(1)(c) – applicant met the health requirement – decision under review remitted

LEGISLATION
Migration Act 1958, ss, 5F, 65
Migration Regulations 1994, r 1.15, Schedule 2, cls 820.211, 820.221, 820.223

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 3 October 2016 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). The primary criteria must be satisfied by at least one applicant.

3. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.820.211 because the delegate was not satisfied that the applicant was the spouse of the sponsor at the time of application. The delegate was also not satisfied that the applicant satisfied Public Interest Criterion (“PIC”) 4007 for the purposes of cl.820.223(1)(a).

4. The applicant appeared before the Tribunal on 26 July 2022 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor. The Tribunal hearing was conducted with the assistance of an interpreter in the Tagalog and English languages.

5. The applicant was represented in relation to the review. The representative attended the Tribunal hearing.

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 has been the spouse of the sponsor at the time of application and at the time of this decision, and whether she satisfies PIC 4007.

   Whether the parties are in a spouse or de facto relationship

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. “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). 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 r.1.15A(3), which is extracted in the attachment to this decision. Each of the specific matters contained in r.1.15A(3) is effectively a question which must be answered: He v MIBP [2017] FCAFC 206.

   Are the parties validly married?

10. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. The Tribunal has sighted a copy of a certificate for a marriage that took place on 21 October 2014 and was registered by a civil registrar of the Philippines on the same date. It accepts that the document is valid and accepts that the parties are free to marry each other. 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 spouse relationship met?

    Financial aspects of the relationship

11. Based on the evidence in front of it, the Tribunal finds that the parties do not have any joint real estate or other major assets, although the applicant told it that the sponsor owns the house in which they live without any mortgage. It finds that the parties do not have any joint liabilities. It finds based on a statement from a joint NAB bank account that that account had been operational since at least January 2017, although it finds based on the applicant’s testimony at hearing that this account has been rarely used. Instead, she told it that the sponsor’s disability support pension is paid into his personal account. The applicant said that she paid for the groceries out of her own salary as a hotel cleaner, although they were paid for by the sponsor before she obtained work. She said that the sponsor has always paid for the bills. The Tribunal accepts the veracity of this evidence based on its belief that the parties are witnesses of credit. Lastly, the parties provided no details of any joint legal obligations and the Tribunal finds that there is none.

12. The Tribunal has considered evidence of the financial aspects of the relationship. It accepts that while the evidence is limited in some respects, it does point to them integrating their finances to a moderate extent through having responsibilities for various outgoings such as groceries and utilities. The Tribunal accepts that the financial aspects of the relationship points slightly in favour of them being in a genuine and continuing relationship.

    Nature of the household

13. There is no evidence that the parties have any children-in-common. The applicant has no children and the sponsor has two adult-aged children who live interstate.

14. As to the parties’ living arrangements, they claim to have been living together at an address in Mayfield since the applicant travelled to Australia in April 2016. Before this time, they claim to have been communicating with each other, initially messaging through Facebook but then calling each other daily over Skype. The sponsor claims in an undated statement at the Department stage that he travelled to the Philippines in the latter part of 2014 to stay with the applicant for four months. Movement records substantiate that he departed Australia in October 2014 and returned in February 2015. Several pieces of correspondence were submitted showing one or both of the parties living at an address in Mayfield that is the same as the sponsor’s.[1] Although the Tribunal is aware that much correspondence is sent without any verification process, it gives weight to the parties’ evidence regarding their living arrangements based on their overall credibility.

    [1] Some letters from a government agency were provided to the Tribunal that list the applicant as living at the same number and street (Mitchell Street) as claimed but in Invermay and not Mayfield (which both have the same postcode). Having ascertained by public source information that there is no Mitchell Street in Invermay, the Tribunal accepts that this is a clerical error by the relevant agency and is not indicative of the sponsor living in Invermay.

15. The parties were asked where the sponsor’s mother was living, and both answered that she lived close by (10 minutes’ walk) and that they would see her every day. Based on the consistency of the parties when giving their testimony, the Tribunal accepts the evidence as given.

16. When asked their daily routine, both parties answered that the applicant goes to work at around 9:30am by public transport and returns at around 2:30pm or 3:00pm. Both parties told the Tribunal that the sponsor entertains himself during this time by playing on the computer. Again, based on the consistency of the evidence, the Tribunal accepts it.

17. In relation to the question of any sharing of responsibility for housework, the Tribunal accepts the sponsor’s testimony that the applicant cooks and does most of the cleaning.

18. The Tribunal finds that the evidence relating to the nature of the parties’ household indicates that they have been living together and have been in a genuine and continuing relationship at all material times.

    Social aspects of the relationship

19. The Tribunal has considered photographs of the parties in each other’s company and with third parties. These photographs include those taken at their wedding in Manila in 2014, which it must be said was a small affair that involved only some members of the applicant’s family, as well as others that were taken at other times during that visit by the sponsor. Still others show the parties in the presence of the applicant’s family in the Philippines and with the sponsor’s mother and friends in Australia.

20. At hearing, the Tribunal heard from the applicant that the parties’ wedding ceremony was attended by a sister of the applicant called Marilyn and her husband and family, as well as some of her sister’s friends. When asked why she had not told more of her friends and family to attend, she replied that they lived far away from Manila and her parents were very old.

21. Two Form 888 statutory declarations from May 2018 were provided to the delegate by two of the applicant’s friends, Ms Rosalinda Cameron and Ms Maya Raisaly. Ms Raisaly stated that she had known the parties for 12 months at that time and Ms Cameron stated that she had known them for 18 months. The declarations offered some insight into the parties’ relationship and why the authors believed that their relationship was genuine and continuing. For this reason, they are given some weight. Moreover, both parties were able to tell the Tribunal that they had gone on a camping trip with Ms Cameron and her husband Ken to a beach north of Launceston, and that they invite Filipino friends around for Christmas dinner. In light of this consistency, the parties’ testimony is given weight.

22. The Tribunal places weight on the fact that the sponsor receives a disability support pension amount that has been reduced due to him being in a partner relationship. It accepts that he has therefore informed Centrelink, a major Australian government agency, of his relationship with the applicant.

23. The Tribunal has considered the evidence in front of it relating to the social aspects of the relationship. It accepts based on this evidence that they represent themselves to a small group of people as being in a married relationship, comprising the applicant’s family, the sponsor’s mother, and some friends. It accepts that they are recognised by these people as being in a spousal relationship.

24. The Tribunal finds that the evidence of the social aspects of the relationship points to the parties being in a genuine and continuing relationship at the time of application and at the time of this decision.

    Nature of the parties’ commitment to each other

25. As above, the Tribunal has found the parties to be witnesses of credit. They were able to answer the Tribunal’s questions in a cogent and unprompted way, and their answers were substantially similar to each other and to what had been provided in documents before the delegate. It accepts that this credibility extends to the answers given to questions about the inception and development of their relationship. It therefore accepts that they met each other online through Facebook in 2013 and developed their relationship through messaging through Facebook before calling each other over Skype. It accepts based on movement records that they met in person in early-October 2014 when the sponsor travelled over to the Philippines. It accepts based on their wedding certificate that they married later that month before staying with each other until the sponsor returned to Australia. As above, it accepts that they began living with each other in Mayfield in April 2016.

26. Having made these findings, the Tribunal accepts that the parties have been in a relationship since at least October 2014, or for almost two years at the time of application and over eight years at the time of this decision. It accepts that they have been living together since April 2016, or for six-and-a-half years at the time of this decision. This evidence is accorded significant weight.

27. The Tribunal accepts that the parties were able to display a very detailed knowledge of each other’s personal lives such as their previous employment, family members and medical conditions, which in the sponsor’s case are several and significant. They also gave consistent evidence about each other’s hobbies and their shared interests. Moreover, the parties were able to clearly state their future plans, being to travel to the Philippines and for the applicant to enrol in an aged care course. In light of the consistency shown by both parties, the Tribunal accepts their evidence and gives it substantial weight.

28. Based on these findings, the Tribunal accepts that the parties draw a large degree of companionship and emotional support from each other, and that they view their relationship as a long-term one.

29. The Tribunal accepts that the evidence of the parties’ commitment to each other indicates that they have had a mutual commitment to a shared life as a married couple to the exclusion of all others, that their relationship has been genuine and continuing, and that they have been living together.

30. On the basis of the above evidence and findings, the Tribunal is satisfied that the requirements of s.5F(2) are met at the time the visa application was made. The parties had a mutual commitment to a shared life as a married couple to the exclusion of all others, their relationship was genuine and continuing, and they lived together at the time of application. Therefore, the parties were in a married relationship for the purposes of s.5F(2) and the applicant was the spouse of the sponsor at that time. Because the applicant was the spouse of the sponsor at the time of application, she meets cl.820.211(2)(a).

31. The Tribunal is satisfied that the applicant was sponsored by the sponsor at the time of application pursuant to cl.820.211(2)(c)(i). Lastly, the Tribunal accepts that the visa application was made before the applicant’s previous substantive visa ceased and she is not subject to the Schedule 3 criteria under cl.820.211(2)(d)(ii).

32. As the applicant meets all the applicable criteria under cl.820.211(2), she meets cl.820.211(2) in its entirety.

33. Because the applicant was not the holder of a Subclass 771 (Transit) visa at the time of application, she meets cl.820.211.

34. The applicant continues to meet the requirements of cl.820.211(2) at the time of decision. She therefore meets cl.820.221(1)(a).

35. There are no sponsorship limitations applicable to the sponsor. Clause 820.221(4)(a) is met and because the sponsor has consented to the disclosure of any relevant conviction, cl.820.221(4)(b) is met. Clause 820.221(4) is met in its entirety and therefore cl.820.221 is met.

    Public Interest Criterion 4007

36. As stated above, the applicant’s visa application was also refused because she was found not to have satisfied PIC 4007. Public Interest Criterion 4007 is a cumulative requirement of cl.820.223(1)(a). Clause 820.223(1)(a) applies in this case because the applicant is not an applicant referred to in cl.820.211(5).

37. On 27 July 2022, the Tribunal wrote to the applicant requesting she undergo a medical examination, HIV test and chest X-ray examination.

38. On 23 November 2022, the Tribunal received an email from the Department stating that the applicant’s assessment status for her health case was marked as “auto cleared” on 31 October 2022. The email explained that this meant she met the health requirement.

39. The Tribunal accepts this evidence and accepts that the applicant meets PIC 4007.

40. 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

41. 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 of Schedule 2 to the Regulations; and

    ·cl.820.221 of Schedule 2 to the Regulations; and

    ·Public Interest Criterion 4007 for the purposes of cl.820.223(1)(a) of Schedule 2 to the Regulations.

    David Crawshay
    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).