Lee (Migration)

[2023] AATA 4628

Lee (Migration) [2023] AATA 4628 (20 November 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Hyoungrae Lee

REPRESENTATIVE:  Mr Kris Ahn

CASE NUMBER:  2211261

HOME AFFAIRS REFERENCE(S):          BCC2017/1991850

MEMBER:Edward Howard

DATE:20 November 2023

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) visa:

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

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

Statement made on 20 November 2023 at 2:36pm

CATCHWORDS
MIGRATION –Partner (Temporary) (Class UK) visa – Subclass 820– parties have lived at the same residence throughout their relationship – validly married – genuine and continuing relationship –  parties see their relationship as a long-term commitment – had and have a mutual commitment to a shared life as de facto partners to the exclusion of all others –parties have pooled their financial resources and shared day-to-day financial responsibilities during the relationship – parties have lived at the same residential –  social aspects of the relationship are consistent with a married relationship – couple had a mutual commitment to a shared life to the exclusion of all others – decision under review remitted        

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

CASES
Ally v MIAC [2008] FCAFC 49
He v MIBP [2017] FCAFC 206
Jayasinghe v MIMA [2006] FCA 1700
MIEA v Poche (1980) 4 ALD 139

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 review applicant a Partner (Temporary) (Class UK) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The review applicant applied for the visa on 5 June 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).

3. The delegate refused to grant the visa on the basis that the review applicant did not satisfy cl 820.211.

4. The review applicant appeared before the Tribunal on 15 November 2023 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor, Mr Stanley Yip. 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.

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

   BACKGROUND

7. The review applicant is Ms Hyoungrae Lee, aged 42 years, a citizen of South Korea and the sponsor is Mr Stanley Yip, aged 57 years, an Australian citizen. The parties claimed to have known each other since 2009 and married on 2 September 2011.

   ISSUES AND LAW

8. There is a two-stage process for onshore Partner visas. A visa applicant must first hold a provisional visa, enabling them to remain in Australia on a temporary basis, prior to the grant of a permanent visa. The grant of a permanent visa would generally depend on whether the relationship has continued for a period of at least two years. In this matter, the Tribunal is considering the first, temporary stage.

9. Where the Tribunal is considering a criterion that requires the definition of spouse or de facto partner to be met at the time of the visa application, the information supplied in relation to the reg 1.15A(3) matters may relate to circumstances after the time of application. In forming a view of the relationship at the time of application, the Tribunal must consider all relevant evidence, which may include evidence of events after the date of application insofar as it assists in the task of determining whether the visa applicant and the sponsor were in a spousal relationship at the time of the application. Evidence of events after the visa application is relevant if it tends logically to show the existence or non-existence of facts relevant to the issue to be determined.[1] The Tribunal observes this to be a matter where the visa applicant submitted limited documentary evidence in support of his visa application to the Department of Home Affairs and then furnished the Tribunal with further evidence that was unavailable to the primary decision maker.

   [1] Ally v MIAC [2008] FCAFC 49 at [32]–[35]; Jayasinghe v MIMA [2006] FCA 1700 at [35], citing MIEA v Poche (1980) 4 ALD 139 at [24] per Deane J which held that evidence of subsequent events may be taken into account if it ‘tends to logically show the existence or non-existence of’ the relationship at that particular time; and see also Bretag v IRT [1991] FCA 582 at [13]–[15].

10. The issue in the present case is whether at the time of the visa application and the time of this decision, the review applicant is the spouse of the sponsor.

    Whether the parties are in a spouse or de facto relationship

11. 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 review 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 review applicant claims to be the spouse of the sponsor who is an Australian citizen.

12. 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?

13. 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 – including joint ownership of assets; joint liabilities; extent of pooling of financial resources; any legal obligations owed to the other party; any sharing of day-to-day household expenses.

14. The evidence of the parties is that the sponsor operates his own small business as a property maintenance handyman. He has operated this business for a number of years and has several long-term clients who produce most of his work and income. The review applicant does not work and is financially dependent on her husband.

15. Shortly after they met in 2009, the parties began dating and the review applicant started living with the sponsor at his mother’s residence in Brisbane. The review applicant provided care to the sponsor’s mother who was elderly and in ill health over a period of eight years from 2010 to 2018. After the sponsor’s mother passed away, the parties have continued to live in the residence, which is now owned by the sponsor.

16. The parties have provided extensive financial information including their bank accounts and statements for their joint ANZ Bank account and joint Commonwealth Bank account. Evidence has also been provided in relation to the review applicant’s sole Commonwealth Bank account and sole ANZ Bank account. Additionally, evidence has been provided of the sponsor’s Westpac bank account.

17. The evidence of the parties is that the sponsor is responsible for paying most of the household bills and regular expenses. He provides funds to his wife whenever necessary and she pays for most of her personal expenses and shopping out of her ANZ account, from money transferred by her husband. The review applicant has retained some funds of her own from prior to the relationship and does pay for certain expenses.

18. The Tribunal finds that in relation to the financial aspects of the relationship, the parties do not have joint ownership of real estate or any major assets. Whilst they have joint responsibility for regular outgoings and utilities commitments, these are normally paid by the sponsor. The sponsor is a self-employed business operator and has financially provided for his wife since the time of their marriage. The Tribunal is satisfied that the financial arrangements are consistent with the financial situation of a committed and genuine spousal relationship. The Tribunal weighs the financial aspects of the relationship in favour of the review applicant.

    Nature of the household – including any joint responsibility for care and support of children; parties’ living arrangements; and any sharing of housework.

19. The evidence of the review applicant was that she and the sponsor lived together from shortly after they commenced dating, at the residence of the sponsor’s mother. The review applicant is responsible for most of the household and domestic duties as well as providing care and support for the sponsor’s mother for over eight years prior to her passing away.

20. The Tribunal is satisfied that the parties’ household and living arrangements are consistent with that of a married couple in a genuine relationship. The Tribunal weighs consideration of the household aspects of the relationship in favour of the review applicant.

    Social aspects of the relationship – including whether parties represent themselves to other people as being in a de facto relationship with each other; the opinion of friends and acquaintances about the nature of the relationship; and any basis on which the persons plan and undertake joint social activities.

21. The evidence of the parties is that they lived together from about 2009 and were married in September 2011. It is the evidence of the review applicant that the parties were socially accepted as a matter as a married couple and they have provided various evidence, including statutory declarations and photos to support this claim.

22. The parties have regular contact and a good relationship with the sponsor’s two adult children.

23. Having considered the evidence, the Tribunal is satisfied that the parties represent themselves to other people as being married to each other, that they enjoy the opinion of friends and family concerning their relationship and that they plan and undertake joint social activities. The Tribunal weighs the social aspects of the relationship in favour of the review applicant.

    Nature of persons’ commitment to each other – including duration of the relationship; the length of time they have lived together; degree of companionship and emotional support they draw from each other; and whether they see the relationship as long-term.

24. The evidence of the review applicant is that the parties met in 2009 and that they commenced dating shortly after that time. In 2010, the review applicant started living with the sponsor at the residence of the sponsor’s mother in Brisbane. The parties were married in September 2011.

25. The parties have lived at the same residence throughout their relationship. Prior to the death of the sponsor’s mother, the review applicant became her long-time carer from 2010 until her death in 2018. The sponsor operates his own business and provides the financial support for the relationship.

26. From the evidence provided, the Tribunal accepts that the parties have supported and cared for each other through difficult times. The evidence supports a finding that the parties are in a genuine and continuing spousal relationship, showing strong commitment to each other and clearly see the relationship as long-term. The Tribunal weighs the nature of the commitment in favour of the review applicant.

    Overall Conclusions

27. The Tribunal has considered separately and as a whole, the evidence before it regarding each of the prescribed matters under r. 1.15A, that is, the financial, household, social and commitment aspects of the relationship.

28. In forming a view, the Tribunal is mindful of the authority in ^[1] Ally v MIAC [2008] FCAFC 49 at [32]–[35]; Jayasinghe v MIMA [2006] FCA 1700 at [35], citing MIEA v Poche (1980) 4 ALD 139 at [24] per Deane J which held that evidence of subsequent events may be taken into account if it ‘tends to logically show the existence or non-existence of’ the relationship at that particular time; and see also Bretag v IRT [1991] FCA 582 at [13]–[15].

29. Having carefully considered all the evidence and for the reasons above, the Tribunal is satisfied that at the time of application, the parties had a mutual commitment to a shared life as a married couple to the exclusion of all others; that the relationship between them is genuine and continuing; and that they live together and have done so since they were married. The Tribunal is therefore satisfied the requirements of section 5F of the Act were met the time of the visa application.

30. The Tribunal is further satisfied that at the time of this decision the parties continue to have a mutual commitment to a shared life to the exclusion of all others and that the relationship between them has been and remains genuine and continuing. The Tribunal is also satisfied that they have lived together and not separately and apart on a permanent basis since their marriage. The Tribunal is therefore satisfied the requirements of section 5F(2) of the Act are met at the time of this decision.

31. The Tribunal is therefore satisfied that the parties relationship fulfilled the criteria contained in cl 820.211(2)(a) of the regulations at the time the visa application was made and at the time of this decision.

32. Pursuant to cl 820.221(1), in order to be eligible for the grant of a subclass 820 (UK) visa, the review applicant must also continue to meet the requirements of cl 820.211(2) at the time of this decision. Having regard to the evidence before the Tribunal, the Tribunal is satisfied that the review applicant continues to meet the requirements of clause 820.211(2), hence satisfying the criteria in clause 820.221.

33. Therefore, the Tribunal finds that the review applicant meets the requirements of clauses 820.211(2) and 820.221.

34. 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

35. The Tribunal remits the application for a partner (temporary) (class UK) visa, with the direction that the review applicant meets the following criteria for a subclass 820 brackets partner) visa:

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

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

    Edward Howard
    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).