Leow (Migration)

[2023] AATA 2645

Leow (Migration) [2023] AATA 2645 (8 August 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Shirleen Leow

REPRESENTATIVE:  Mr Jensen Ma, Agile Legal Consulting

CASE NUMBER:  1907458

HOME AFFAIRS REFERENCE(S):          BC2018/2918064  

MEMBER:Michael Ison

DATE:8 August 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 the grant of a Subclass 820 (Partner) 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 08 August 2023 at 4:42pm

CATCHWORDS

MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – genuine and continuing relationship – work-related separation – relationship registered before marriage – joint bank account – child born of the relationship – shared household expenses – joint travel – sponsor’s parents’ involvement with grandchild – social recognition – decision under review remitted    

LEGISLATION

Migration Act 1958, ss 5, 65, 360
Migration Regulations 1994, Schedule 2, cls 820.211, 820.221; r 1.15
Relationships Act 2008 (Vic)

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 Immigration and Border Protection on 12 March 2019 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 Ms Shirleen Leow, who is a 36-year-old national of Singapore and who is referred to in these reasons as the applicant. The applicant applied for the visa on 3 August 2018 on the basis of her relationship with her sponsor Mr Michael Tsun-Ho Pau, who was born in Singapore but is a 37-year-old Australian citizen.  Mr Pau is referred to in these reasons as the sponsor.

3. The delegate refused to grant the visa on the basis that the applicant did not satisfy cl 820.211 because the delegate was not satisfied the applicant was the de facto partner of the sponsor. The applicant seeks review of the delegate’s decision. The sponsor and applicant were represented by Mr Ma of Agile Legal Consulting in relation to the review.

4. In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the applicant on the basis of the material before it, pursuant to s 360(2)(a) of the Act. For the following reasons, the Tribunal has decided the matter should be remitted for reconsideration.

   RELEVANT LAW

5. At the time the application was made, 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 (the Regulations).

6. Clauses 820.211(2)(a) and 820.221 require that at the time of the visa application, 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.

7. ‘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).

8. 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?

9. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. The applicant and sponsor were married on 5 May 2019 in Melbourne, Victoria and the applicant provided a copy of their Australian marriage certificate to the Tribunal. The Tribunal is satisfied on the evidence before it 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).

   Are the other requirements for a spouse relationship met?

10. The applicant and the sponsor claim to have met in Adelaide in 2009 through respective housemates when the applicant was studying hospitality management and the sponsor was studying to be a pilot. They socialised together with friends frequently and their friendship evolved into the two of them dating and socialising and studying together. They claim after graduating the applicant returned to Singapore to work and the sponsor returned to his family home in Melbourne and then commenced work as a pilot for Cathay Pacific based in Hong Kong.

11. The applicant and sponsor then claim to have maintained a long-distance relationship for several years catching up regularly in Singapore and frequently visiting Japan together, with the applicant being eligible for discount flights as the partner of the sponsor.

12. They claim to have considered themselves to be in a committed and exclusive de facto relationship from July 2014 when the sponsor asked the applicant to move to Melbourne to live with him. However, around that time the applicant was offered a position in Singapore as a lecturer in hospitality, which was a career she was very keen to pursue. The applicant accepted that position and the applicant and sponsor continued their long-distance relationship.

13. In May 2018 the applicant came to Australia as the holder of a Visitor visa to live with the applicant and his parents in Melbourne, with the applicant returning regularly to Singapore to visit her family. On 13 July 2018 the applicant and sponsor applied to register their relationship in Victoria and their relationship was registered on 13 August 2018 under the Relationships Act 2008 (Vic). The applicant provided the Tribunal with a copy of the registration and the Tribunal accepts this evidence.

14. On 3 August 2018 the applicant applied for a Subclass 820 Partner visa (and a Subclass 801 Partner visa) as the de facto partner of the sponsor, who sponsored the application.

15. In October 2018 the applicant completed a Certificate IV in Training and Assessment.

16. The delegate refused the application for the visa on 12 March 2019.

17. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl 820.211(2)(a) because the delegate found that the applicant had provided limited evidence about the claimed relationship and considered it was not sufficient to demonstrate that they were, at the time of the delegate’s decision, the de facto partner of the sponsor.

18. The delegate in the primary decision did not give much weight to a lot of the evidence of the relationship provided by the applicant and sponsor because at that time of application they had only co-habited for a matter of weeks and much of the supporting documentation – such as a joint bank account, registration of their relationship and joint ambulance membership – had only been created just before the applicant applied for the visa. The delegate was also concerned about the relatively short amounts of time the applicant and sponsor had spent together since the claimed July 2014 commencement of their relationship.

19. The Tribunal notes that it has been over four years since the delegate’s decision.

20. The applicant provided nearly two hundred pages of additional evidence to the Tribunal in March 2023.

    Significant developments in the relationship since the delegate’s decision

21. Since the delegate’s decision the applicant and sponsor married in Australia on 5 May 2019. The applicant provided the Tribunal with a copy of their marriage certificate registered on 28 May 2019 and the Tribunal accepts this evidence.

22. The applicant’s family flew to Australia from Singapore to attend the wedding and the sponsor’s family and friends also attended. The applicant provided date stamped photos of her wedding to the sponsor and the Tribunal accepts that their wedding was witnessed by both families and also by their friends.

23. In 2019 the applicant began employment with Victoria University in hospitality and travel.

24. In December 2021 the applicant and sponsor had a son whom they named Ashley. The applicant provided the Tribunal with a copy of Ashley’s Victorian birth certificate confirming she is Ashley’s mother and stating the sponsor is his father. The applicant also provided many photos of the birth of her son and her son with her and the sponsor, with family members and with friends. The Tribunal accepts Ashley is the son of the applicant and the sponsor and that this is recognised by their families and friends.

    Assessment of the relationship under s 5F and reg 1.15A(3)

25. The Tribunal has considered the financial aspects of the relationship. In a written statement from the sponsor also signed by the applicant dated 2 March 2023, the sponsor stated they have continued to live with the sponsor’s parents since May 2018 and do not pay a formal rental or have utility bills in their names.

26. The applicant provided statements for the sponsor’s Mastercard account for March, June, September and December 2022 and February 2023 showing payments for groceries, dining out, medical expenses and other personal items.  The applicant provided evidence that both the applicant and sponsor have credit cards for this account.

27. The applicant also provided 11 statements from her joint bank account with the sponsor for periods between August 2018 to May 2022. These statements evidence the regular deposit of the applicant’s salary into the account and sometimes but not regularly the deposit of the sponsor’s income into the account, despite submissions the sponsor’s salary is paid only into the joint account. The statements also show regular purchases for groceries, personal items, entertainment and memberships.

28. It is clear from the financial information provided to the Tribunal that the sponsor continues to maintain his own transaction account. The joint bank account statements show regular transfers from another account, presumably that of the sponsor, but there is no information before the Tribunal to confirm or explain this.

29. The applicant provided her tax returns, not assessment notices, for the financial years 2018 – 2019, 2019 – 2020 and 2020 – 2021 showing her income from Victoria University each financial year. These returns also reference a bank account held solely in the applicant’s name.

30. The parties provided evidence of family health insurance, medical and other expenses in relation to the birth and raising of Ashley, the purchase of a car by the sponsor for the applicant, car registration and insurance bills and a July to December 2022 superannuation statement for the applicant nominating, in a non-bonding nomination, the sponsor as the beneficiary of the fund.

31. Having regard to the above evidence, the Tribunal accepts that the applicant and sponsor have pooled, although not completely, their financial resources and share household expenses consistent with being a genuine married couple.

32. There is no evidence before the Tribunal of the applicant and sponsor jointly owning significant assets such as real estate or having joint liability to repay loans or having any other legal obligations in respect of each other.

33. The Tribunal finds that overall, the matters associated with the financial aspects of the relationship of the parties support a finding by the Tribunal that the applicant and sponsor are in a genuine spouse relationship.

34. The Tribunal has considered the nature of the household of the applicant and sponsor. The sponsor in his written statement dated 2 March 2023, stated he was unemployed during the travel restrictions imposed in response to the COVID-19 global pandemic and for this reason the applicant and sponsor chose to continue to live with the sponsor’s parents.

35. The evidence before the Tribunal, which it accepts, is the applicant and sponsor have continued to live with the sponsor’s parents since the applicant came to Australia in May 2018.

36. The sponsor in his written statement went on to state:

    In December 2021, we named our son, Ashley Pau. And life was never the same again. I returned to work and Shirleen stopped working to care for Ashley. He is our bundle of joy and now our lives revolve around him. People say that the days are long but the years are short. In a blink of an eye, it’s already 2023 and Ashley is now 15 months old.

37. The representative submitted in a submission dated 1 March 2023:

    Since the birth of their child, Ashley Yuk-Ting Pau, on December 10, 2021, the Applicant and Sponsor have embraced parenthood with enthusiasm and dedication. They share joint responsibilities in caring for Ashley, taking turns to babysit him throughout the day or accompanying him for health check-ups. Living with the Sponsor's parents has provided a supportive and nurturing environment for Ashley, and the couple cherishes the joyous moments they share with their child and his grandparents.

    In addition, the Applicant and Sponsor have already submitted an application for their son Ashley to enrol in Year 2034 at both Camberwell Grammar School and Scotch College, both of which are prestigious schools within Victoria. This demonstrates their commitment to providing their child with the best education possible, and ensuring his future success. They have researched extensively and carefully considered the benefits of each school, and they are eager to support Ashley's academic and personal growth in whichever institution he ultimately attends.

    Their dedication to planning for their child's education and future is a testament to the strength and stability of their relationship as well as their shared values as a family.

38. The applicant provided written evidence of the application for enrolment of their son to both schools.

39. The Tribunal accepts the evidence before it that the applicant and sponsor have joint responsibility for the care and support of their son.

40. The parties claim to share household responsibilities, with the applicant doing most of the cooking and the cleaning and the sponsor doing tasks like lawn mowing and vacuuming.  They also have two golden retriever dogs and provided photos of them walking the dogs.

41. The Tribunal finds that the applicant and sponsor have established a joint household and family unit within the home of the sponsor’s parents and that they share the responsibility for the housework within their household.

42. The Tribunal finds that the matters associated with the nature of the household of the parties support a finding by the Tribunal that the applicant and sponsor are in a genuine spouse relationship.

43. The Tribunal has considered the social aspects of the relationship. According to the parties they present themselves to other people as a married family unit with their son, their respective families and friends accept their marriage as genuine and support their relationship and they actively plan and undertake joint social activities.

44. The photographic evidence provided to the Tribunal by the applicant support these claims as does their ongoing cohabitation with the sponsor’s parents. The applicant also provided evidence of regular travel back to Singapore to visit her family there.

45. The Tribunal accepts the evidence provided to it demonstrating that the applicant and the sponsor have an active joint social life which they participate in and undertake as a married couple and as a family unit with their son. The Tribunal also accepts on the evidence before it that the relationship of the applicant and sponsor is known to family and friends, and they are socially recognised and accepted as a married couple and with their son as a family unit. The Tribunal further accepts the applicant and sponsor present themselves to others as being married and others view their relationship as a genuine marriage.

46. The Tribunal finds that the matters associated with the social aspects of the relationship of the parties support a finding by the Tribunal that the applicant and sponsor are in a genuine spouse relationship.

47. The Tribunal has considered the nature of the persons’ commitment to each other. The applicant and sponsor have now been married for four years, have been in a committed and exclusive relationship for over nine years and have known each other for approximately 14 years. The applicant and sponsor have also cohabited, with the sponsor’s parents, for over five years.

48. Both the applicant and sponsor have submitted that they see their relationship as being a long term one. In his written statement dated 2 March 2023 the sponsor stated:

    We are currently searching for a house, our plan is to have 2 children by 2024 so Ashley can have a sibling to grow up with. It is without a doubt that we plan and are committed to spend the rest of our lifetime together. We have a wholesome family unit, we have a support circle of family and friends in Melbourne, we have each other.

49. The Tribunal accepts this submission and finds the applicant and sponsor draw a degree of companionship and emotional support from each other consistent with them being in an exclusive and ongoing relationship.

50. The Tribunal finds that the matters associated with the nature of the parties commitment to each other support a finding by the Tribunal that the applicant and sponsor are in a genuine spouse relationship.

    Conclusions

51. Having regard to all the evidence before it, the Tribunal is satisfied, that the applicant and sponsor have a mutual commitment to a shared life together as a married couple to the exclusion of all others. The Tribunal is satisfied their relationship is genuine and continuing. The Tribunal is satisfied the applicant and sponsor do not live separately and apart on a permanent basis.

52. On the basis of the above the Tribunal is satisfied and finds that the requirements of s 5F(2) are met at the time the visa application was made and at the time of this decision. Therefore, the applicant meets cl 820.211(2)(a) and cl 820.221 of Schedule 2 to the Regulations.

53. 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

54. The Tribunal remits the application for a Partner (Temporary) (Class UK) visa, with the direction that the applicant meets the following criteria for the grant of a Subclass 820 (Partner) visa:

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

    ·cl 820.221 of Schedule 2 to the Regulations

    Michael Ison
    Senior 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).