Lee (Migration)

[2023] AATA 3123

Lee (Migration) [2023] AATA 3123 (13 September 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Yujin Lee

REPRESENTATIVE:  Mr James Wardlaw

CASE NUMBER:  1935214

HOME AFFAIRS REFERENCE(S):          BCC2017/3031864

MEMBER:Donna Petrovich

DATE:13 September 2023

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(2) of Schedule 2 to the Regulations

·cl 820.221 of Schedule 2 to the Regulations

Statement made on 13 September 2023 at 10:40am

CATCHWORDS

MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – genuine and continuing relationship – long term cohabitation – joint bank account – joint responsibility for home, garden, pets and extended family – decision under review remitted    

LEGISLATION

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

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 23 August 2017 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. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria.

3. The delegate refused to grant the visa on the basis that the visa applicant (the applicant) did not satisfy cl 820.211(2) of the Regulations.  The delegate was not satisfied that the couple at the time of application (and in the 12 months immediately prior to the application) were in a de facto relationship.

4. The applicant appeared before the Tribunal on 23 August 2023 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Eray Mehmet (the applicant's partner). The Tribunal hearing was conducted with the assistance of an interpreter in the Korean and English languages.

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

   Background

6. The applicant is a 51 year old woman originally from South Korea who was studying English.  On 14 April 2014 she arrived in Australia on a Student visa. The applicant and sponsor first met on 19 July 2014 at Box Hill, near Holmesglen.  Mr Eray Mehmet (the sponsor) was tutoring the English language and began assisting the applicant with her studies.

7. The couple became friends.  The sponsor attended the applicant’s birthday party.

8. The applicant was the victim of a break-in at her share accommodation by an upstairs neighbour. 

9. In 2015, as she felt vulnerable staying at the property, the sponsor invited the applicant to stay with him and his family in Bendigo.

10. They commenced a relationship, living together with the sponsor’s parents at the family property for four years.  They saved for their own property in Castlemaine.

11. At that time due to her limited English, the applicant found it difficult to obtain work.

12. However, she has since started her own cleaning business.  She is also studying aged care.  The applicant has secured a position in the aged care field, which she will commence once she completes the course.

13. The sponsor had his own business manufacturing and distributing baked goods.  During Covid, the business was not as profitable.  He now wholesales baked products to cafés and restaurants which he picks up from the wholesaler in Melbourne and distributes in the local area.

14. The applicant and sponsor have lived together for around 10 years.  They have established a home in Castlemaine, where they live with their pet dog and chickens.  The couple also has a well- established garden where they grow vegetables.          

15. The couple claim that they commenced an exclusive committed relationship on 26 July 2014 and have lived together continuously since 2015.      

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

17. The issue in the present case is whether the couple where in a de-facto spousal relationship in the 12 months prior to their application, and whether they are still in a genuine and continuing relationship.

    Whether the parties are in a spouse or de facto relationship

18. 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.

19. ‘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 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.

    Are the parties validly married?

20. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. The couple have lived together continuously for nearly 10 years.  They were married on 28 December 2019 in Castlemaine.  This marriage occurred after the delegate’s decision in November 2019.  Both families attended the ceremony.  However, due to ill health and dementia, the applicant’s father did not attend. The applicant provided photographs of their wedding, showing family members in attendance. The Tribunal has also been provided with a copy of the couple’s marriage certificate.  On the evidence, the Tribunal finds that 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).

21. Further, the Tribunal accepts that the couple had lived together prior to their marriage for a substantial number of years.  The evidence substantiates that at time of application they were living together, except for the days when the applicant stayed with friends to attend school in Melbourne. This is not an unusual arrangement.  It is evident in many relationships where work or other commitments require travel, making it impractical to make the trip each day.

22. The Tribunal finds on the evidence, that the parties were in a de facto relationship with each other for the purposes of the Act as required by s 5CB, both in the 12 months prior to and at the time of lodgement of the Partner visa application.

    Are the other requirements for a spouse relationship met?

    Financial aspect of the relationship

23. The applicant told the Tribunal at the hearing that initially she had found it hard to obtain work because of language and communication difficulties.  The sponsor had supported the applicant financially during this time.

24. The couple were supported by the sponsor’s parents with whom they lived rent free.  This enabled the sponsor to work and save for a property which he bought with a friend.  The property is not in the applicant’s name because of her visa status.  The couple are now saving for their own property.  They hope to buy in Harcourt, with some agricultural land, as this is where the sponsor was raised.

25. They couple demonstrated to the Tribunal their savings (with combined earnings) in their joint bank account.  They told the Tribunal that there is also a business account used by the sponsor that is kept separate for business purposes.  The applicant has no involvement in the business.

26. The Tribunal accepts the evidence of sharing of day-to- day expenses.  The evidence supports the conclusion that there is a pooling of financial resources by the couple, as much is possible, in circumstances where the applicant is unable to own property due to her current visa situation.

27. The sponsor and his family supported the applicant fully during the time she was a student, livening in their home.  This also demonstrates their sharing of financial resources with the applicant.  The Tribunal place weight in favour of the applicant in this regard.       

    Nature of the Household

28. The couple initially lived rent free for four years with the sponsor’s parents.  This enabled the couple to save money.  During this time the Tribunal heard that the sponsor was working multiple jobs, with home duties shared between the sponsor’s mother and the applicant, particularly as the sponsor’s mother is a very good cook.  The applicant and sponsor contributed to the shared living arrangements by doing the grocery shopping and paying for food.

29. Since moving into their own home in Castlemaine, the applicant and sponsor rely on each other, sharing household duties.  The applicant does the majority of housework and cooking, whilst the sponsor does the heavy gardening work.  Although they both have a keen interest in gardening together.  They have established a vegetable garden and keep chickens.

30. Although they have no children, they have a dog that they are devoted to.  They spend a lot of their spare time taking care of it, including taking the dog for evening walks together each day. They also spend a lot of time with the applicant’s sisters children, who often come to stay with them.  They also enjoy taking the children out for activities.

31. The Tribunal accepts the evidence that the couple have lived together continuously since 2015.  At this time, the applicant moved in with the sponsor from her permanent residence in shared accommodation in Melbourne.  This is because the applicant was frightened to stay in the share house following a home invasion/break in by a neighbour.

32. The Tribunal accepts that the couple were assisted by the sponsor’s parents, who provided rent and bill free accommodation at their family home in Bendigo.  In this circumstance, there are no rental receipts nor other paper evidence such as utility bills, relating to the couple’s time at this property.

33. The Tribunal accepts on the evidence that the couple have lived together continuously since 2015 and were in a continuing de facto relationship for the 12 month period prior to lodgement of the Partner visa application.

34. The Tribunal accepts that there is a sharing of housework, together with a joint responsibility for their home, garden, pets and extended family by the couple. The Tribunal places some weight in favour of the applicant.

    Social aspects if the relationship

35. The couple provided testimony to the Tribunal that they are close with their families, spending lots of spare time socialising with immediate family and their children.  The children of the applicant’s sister often stay with them.

36. They also have a keen and shared interest in fishing.  At any opportunity, the couple get away on weekends to fish and explore Victoria.  They provided photographic evidence of their family and many experiences together.

37. The Tribunal accepts that they are recognised by their family and friends as a married couple.  They are accepted as a couple by those who know them, particularly their families with whom they spend the most time.  The Tribunal places some weight in favour of the applicant in this regard.

    Nature of the Persons commitment to each other.

38. The Tribunal heard that the applicant and sponsor have remained together continuously for over ten years, and that during that time they have rarely been apart.

39. The applicant told the Tribunal that initially whilst she was studying in Melbourne, she would attend her classes and stay overnight.  This is because it was cost effective and practical due to the distance between Melbourne and Bendigo (where she was living with the sponsor and his family).

40. The Tribunal heard and was provided with evidence of the couple’s life together, including their shared interest in fishing and visiting other places on weekends away.  They try to take their dog with them on these trips.

41. They are supportive of each other’s business ventures and are making future plans, including the purchase of a rural property (where they will keep bees and live sustainably).

42. The applicant and sponsor would like a family of their own.  But they have been unable to start a family given the uncertainty around the applicant’s visa status.

43. They have established themselves as a couple.  Family and friends recognise them as a couple.  They have lived together continuously, have plans to start a family if they are able and are actively looking to purchase their own rural property.

44. The Tribunal has considered the evidence, including financial and photographic material, and accepts that the couple draw strong emotional support from each other.  They see the relationship as long term.  Therefore, the Tribunal places significant weight in favour of the applicant in this regard. 

    Any other circumstances of the relationship

45. There are no other circumstances that the Tribunal is aware of.

46. The Tribunal finds that the applicant and sponsor have a mutual commitment to shared life together to the exclusion of others; maintain a genuine and continuing relationship; that they live together, and do not separately and apart on a permanent basis.

47. On the basis of the above the Tribunal is satisfied that the requirements of s 5CB and s 5F(2) are met at the time the visa application was made and the time of this decision respectively.

48. Therefore, the applicant meets cl 820.211(2)(a) and cl 820.221(1)(a).

49. 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

50. 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 of Schedule 2 to the Regulations

    Donna Petrovich
    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).