LEE (Migration)

[2017] AATA 1650

LEE (Migration) [2017] AATA 1650 (12 September 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Jisun LEE

CASE NUMBER:  1617384

DIBP REFERENCE(S):  BCC2015/1239719

MEMBER:Kira Raif

DATE:12 September 2017

PLACE OF DECISION:  Sydney

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)(a) of Schedule 2 to the Regulations; and

·cl. 820.221 of Schedule 2 to the Regulations

Statement made on 12 September 2017 at 12:57pm

CATCHWORDS

Migration – Partner (Temporary) (Class UK) visa – Subclass 820 (Spouse) – Genuine relationship – Sponsorship previously withdrawn – Sharing domestic responsibilities – Child born of the relationship – Sharing of finances – Social recognition of relationship

LEGISLATION

Migration Act 1958, ss 5F, 65

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

STATEMENT OF DECISION AND REASONS

Application for review

1. This is an application for review of a decision of a delegate of the Minister for Immigration on 29 September 2016 to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant is a national of Korea, born in October 1984. She applied for the visa on 28 April 2015 on the basis of her relationship with her sponsor. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.820.211 and cl. 820.221 because the delegate was not satisfied the applicant was the spouse of the sponsor. The applicant seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal on 12 September 2017 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 Korean and English languages. The applicant was represented in relation to the review by her registered migration agent. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration

   Relevant law

4. At the time the application was made, Class UK contained only one subclass: Subclass 820 (Partner (Temporary)). 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.

5. ‘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 parties’ household and their commitment to each other as set out in r.1.15A(3).

   Are the parties validly married?

6. If the parties are validly married, they may meet the requirements of a spousal relationship, but not a de facto relationship. The applicant provided with the application evidence of having registered marriage in April 2015. There is nothing to suggest the marriage is not valid. The Tribunal is satisfied 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?

7. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that the sponsor informed the Department that his relationship with the applicant had ended and that he wished to withdraw the sponsorship. Both the applicant and the sponsor explained to the Tribunal in subsequent statements and oral evidence that they were influenced by the sponsor’s parents, who interfered in the relationship. The sponsor explained to the Tribunal that his parents asked him to sign some papers which he did without checking. They claim they have a genuine relationship and have a baby born in 2017. The applicant provided to the Tribunal the child’s birth certificate and DNA test results confirming the sponsor’s paternity.

8. The Tribunal has had the benefit of the parties’ oral evidence, as well as the written material that was submitted in addition to what was provided with the primary application. The Tribunal found the parties to be credible witnesses.

9. The parties provided broadly consistent evidence about their living arrangements. The applicant’s evidence is that she stays at home since early pregnancy while the sponsor works and supports the family. The sponsor is responsible for shopping while the applicant does some housework and is primarily responsible for child caring. The Tribunal accepts that the couple have established a joint household and share domestic responsibilities.

10. The Tribunal places significant weight on the fact that the couple have a child together. The Tribunal is satisfied they share the responsibilities for the child’s daily needs. The Tribunal considers the joint responsibility for the care and support of the child to be strong evidence that the relationship is a genuine one and that the couple view it as a long term one.

11. There is evidence before the Tribunal that the couple operate a joint account. The Tribunal accepts the applicant’s evidence that she does not work and that she is financially supported by the sponsor. The Tribunal accepts they operate the joint account for daily expenses and operate another joint account for savings. The Tribunal accepts they are willing to pool their resources and are willing to share the finances. The sponsor appeared to be somewhat unfamiliar with the financial arrangements but both parties stated that it is the applicant who is responsible for the family’s budget.

12. There are statements from third parties about the couple’s social activities. The applicant’s evidence to the Tribunal is that they have little time for socialising since the birth of their child but they are seeing the sponsor’s friends. The Tribunal acknowledges the parties’ evidence that the sponsor’s parents do not approve the relationship and as a result, the sponsorship was previously withdrawn. The parties told the Tribunal the sponsor has no contact with his family but the applicant’s family is supportive of the relationship and the couple plan to visit them in Korea later in the year. The Tribunal acknowledges that others are aware of the relationship and view it as a long term one.

13. The couple have known each other for about seven years and have been married for two and a half years. Their evidence is that they plan to have more children and until they have a boy. The Tribunal is satisfied they have considered their future together and made plans for their relationship. The Tribunal is satisfied the couple view the relationship as a long term one. The Tribunal is satisfied they provide each other with comfort and emotional support and are mutually committed to this relationship. Overall, the Tribunal is satisfied that at the time when the application was made and at present, the applicant and the sponsor have a mutual commitment to a shared life as husband and wife to the exclusion of all others. The Tribunal is satisfied their relationship is genuine and continuing and that they live together. The Tribunal is satisfied the requirements of s.5F(2) are met at the time the visa application was made and the time of this decision. Therefore the applicant meets cl.820.211(2)(a) and cl.820.221.

    Conclusion

14. 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

15. 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)(a) of Schedule 2 to the Regulations; and

    ·cl. 820.221 of Schedule 2 to the Regulations

    Kira Raif
    Senior Member