Lim (Migration)

[2017] AATA 358

Lim (Migration) [2017] AATA 358 (23 February 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Soon Eng Lim

CASE NUMBER:  1506577

DIBP REFERENCE(S):  BCC2014/657163

MEMBER:Mary Cameron

DATE:23 February 2017

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 (Temporary)) visa:

·cl.820.211 of Schedule 2 to the Regulations

·cl.820.221 of Schedule 2 to the Regulations

·r.2.03A of the Regulations

Statement made on 23 February 2017 at 3:42pm

CATCHWORDS

Migration – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner (Temporary)) visa – De-facto relationship – Circumstances of relationship – Mutual respect and affection -  Appearance of not being genuine – Shared social activities and travel – Consistent evidence about finances

LEGISLATION
Migration Act 1958

, ss 5F, 5CB, 5CB(2), 5F(2)(a)-(d), 65

Migration Regulations 1994, Schedule 2, 820.211, 820.211(2), 820.211(2)(a) and (c), 820.211(2B), 820.221, 820.221(1), r.1.09A(3), r.1.15A, r.1.15A(3), r.2.03A, r.2.03A(2)-(5), 5CB(2)(d)

CASES

Bretag v Minister for Immigration, Local Government and Ethnic Affairs [1991] FCA 582

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 8 May 2015 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 applied for the visa on 6 March 2014 on the basis of her relationship with her sponsor. At that time, Class UK contained only one subclass: Subclass 820 (Partner (Temporary)). The criteria for the grant of this visa are set out in Part 820 of Schedule 2 to the Migration Regulations 1994 (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 did not satisfy cl.820.211 and cl.820.221 of Schedule 2 to the Regulations because the delegate was not satisfied that the applicant and sponsor were in a genuine spousal relationship. The delegate further found that the applicant did not satisfy r.2.03 of the Regulations requiring that she had been in a de facto relationship with her sponsor for at least twelve months ending before the date of the application and for this reason did not satisfy cl.820.211(2)

4.    The applicant appeared before the Tribunal on 7 September 2016 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Ross Jeffrey Taylor, who is the applicant's sponsoring partner.

5.    The applicant was represented in relation to the review by her registered migration agent.

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

CONSIDERATION OF CLAIMS AND EVIDENCE

Whether the parties are in a spouse or de facto relationship

7.    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 that at the time of the visa application she was the de facto partner of her sponsor, and at the time of decision is the spouse of her sponsor who is an Australian citizen.

8.    Section 5F of the Act defines the term 'spouse'. 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: s.5F(2)(a). Additionally, the Tribunal must be satisfied that the couple have a mutual commitment to a shared life as husband and wife to the exclusion of all others, that the relationship is genuine and continuing, and that they live together, or do not live separately and apart on a permanent basis: s.5F(2)(b)-(d).

9.    Section 5CB of the Act provides that a person is a de facto partner and is in a de facto relationship with another person (whether of the same sex or a different sex) where those two people are not in a married relationship but have a mutual commitment to a shared life to the exclusion of all others, the relationship is genuine and continuing, the couple live together, or do not live separately and apart on a permanent basis, and the couple are not related by family: s.5CB(2).

1. In forming an opinion whether two persons are in a married or de facto relationship, the Tribunal must consider all the circumstances of the relationship, including the matters in r.1.15A(3) for spousal relationships and r.1.09A(3) for de facto relationships. Those matters relate to the financial aspects of the relationship, the nature of the household, the social aspects of the relationship and the nature of the persons' commitment to each other.

2. In addition to the criteria in Schedule 2 to the Regulations, if a person claims to be in a de facto relationship for the purposes of a visa application, he or she must meet the additional criteria in r.2.03A. These are: that the couple are both at least 18 years of age: r.2.03A(2); and that the visa applicant has been in the de facto relationship for at least the period of 12 months ending immediately before the date of the application, unless the he or she can establish compelling and compassionate circumstances for the grant of the visa: r.2.03A(3). There are exceptions to this 12-month requirement in certain cases involving permanent humanitarian visas and, for visa applications made on or after 9 November 2009, registered relationships: rr.2.03A(4) and (5).

3. The review applicant is fifty three year old national of Malaysia. Her sponsor is a sixty one year old Australian citizen by birth.

4. In support of the visa application the applicant and sponsor provided written statements according to which they met in December 2011 when they were introduced by friends in Perth where they were both then living. They met for coffee and got on well and they continued to meet and spend time together. They had common interests including travel, food and wine, movies and the outdoors. Their relationship developed over time, and they entered a mutually exclusive partner relationship in October 2012 and had a holiday together in Malaysia in November 2012 when the sponsor met several of the applicant’s siblings and her friends in the hotel industry where she worked for many years. Soon after that the sponsor brought the applicant to Victoria to show her where he grew up and she met his sister in Mornington and his friends in Gippsland.

5. According to his submissions the sponsor was working in the mining and construction industry which took him away from home for between 3 and 5 weeks at a time, a lifestyle which tests relationships. However he spoke to the applicant every night that he was away from Perth and their relationship remained strong. When the sponsor was at home the applicant would move in to his house and stay with him there, and return to her sister’s house when he departed. They have undertaken various weekend trips away in regional Western Australia and have been to Malaysia and Thailand together, and to visit the sponsor’s family in Victoria. They had been together for more than two years at the time of their submission; consider one another to be life partners, and intended to marry in March 2014.

6. In support of the visa application the parties also provided a Notice of Intended Marriage; a copy of the Divorce Certificate of the sponsor and his former wife; travel records; telephone records; photographs of the applicant and sponsor together with family members and friends in Australia and Malaysia; several pages from the sponsor’s will recoding his contemplation of the parties’ marriage; a motor vehicle insurance certificate in the sponsor’s name listing the applicant as a nominated driver and a detailed statement in support of the visa application from the sponsor’s sister, Elizabeth Hill.

7. The delegate refused the visa application on 8 May 2015 expressing concern about aspects of the parties’ relationship with regard to the definition of de facto partner contained in s.5CB of the Act and Regulation 1.09A of the Regulations. The delegate noted that that the parties had cancelled their planned marriage in Perth with the expressed intention of marrying in Melbourne instead. The delegate also observed that, while satisfied that the applicant and sponsor were known to each other since December 2011, they had recorded different residential addresses after their claimed de-facto relationship commenced in October 2012. Therefore the delegate was not convinced that the parties saw their relationship as a long term one or that they had a commitment to a shared life together at the time of application on 6 March 2013. Based on the available evidence the delegate was also not satisfied that the parties had been in a de facto relationship for 12 months prior to the date of the visa application.

8. The applicant provided written submissions in support of the review application addressing the concerns expressed by the delegate in the primary decision record, a copy of which the applicant provided to the Tribunal. According to the parties’ submissions they cancelled their wedding plans in Perth and didn’t re-register in Victoria immediately because they had initially planned to travel back to Perth from Victoria and to re-book the registration and marry there. However due to relatives and friends from both sides expressing concerns about being unable to travel to Perth, coupled with the time and effort required to set up their home in Langwarrin, Victoria, they though it better to postpone their marriage to a time and place that was more appropriate. The sponsor had a long term friend who had qualified as a Marriage Celebrant and they wanted him to perform the ceremony at a place they had chosen in Mornington, and had made a booking with him and would soon proceed with the ceremony. They subsequently did so, marrying in June 2015, as is set out below.

9. Accompanying the parties’ submission are documents including information about the importance of choosing wedding dates in Chinese culture; a further Notice of Intended Marriage; a copy of the parties’ Certificate of Marriage for their marriage which took place on 9 June 2015 in Fulham and was registered on 9 July 2015; statutory declarations from Christine Robyn McCrory; Andrew Robert McCrorey (the Marriage Celebrant who performed the marriage ceremony); Voon Cheng Alvina Walker (the visa applicant’s niece) and Elizabeth Hill attesting to the genuine nature of the parties’ relationship and their wedding. Each of the witness statements attests to the long standing nature of the parties’ relationship since 2012.

10. Also provided in support of the review application are records of the parties’ jointly held bank accounts from February 2015 onward; a rates and valuation notice of the parties home in Langwarrin; utility bills addressed to the parties jointly; telephone records of the sponsor’s mobile phone for the period when the parties were living in Western Australia including text messages and records of calls made to the applicant’s number; travel records; copies of the parties’ driver’s licences issued at their address in Langwarring; numerous wedding photographs of the couple’s wedding including a number of guests, and copies of the invitation to their wedding in June 2015.

11. At the Tribunal hearing the applicant confirmed that she was born in November 1963 in Kuala Lumpur, Malaysia and presently lives in Langwarrin Victoria with her husband, the sponsor. They have been married since June 2015. The applicant told the Tribunal that she had not been previously married and does not have any children. She has seven siblings all in Malaysia except for one sister who resides in Perth and is a permanent resident of Australia. She gave evidence of the sponsor’s former marriage to his first wife and about his family composition.

12. The applicant’s evidence is that she came from Malaysia to Perth in 2011 for a holiday. She had been to Australia a few times and in 2011 had given up her work in the international hotel industry where she worked forth Marriot Group, and so she decided to study as she had no attachments. She enrolled in a course in aged care commencing in February 2011 in Perth, and was living at her sister’s house at that time and volunteering at a Buddhist temple. Her niece introduced her to her sponsor as her niece was a friend of his son. Their first meeting did not lead to anything further. The applicant told the Tribunal that her sponsor is something of a workaholic and was working in the mining and construction industry. They did however start to go out together about once a week, visiting Fremantle, Canning River, going to the cinema, and going for walks together. The relationship developed and they formed a commitment to an exclusive relationship from October 2012 onwards. It was at this time that they declared themselves to be a couple including to family and friends. The applicant continued to live with her sister in Perth when she was not staying with her sponsor at his house. The sponsor maintained his home in Perth but was working as a fly in, fly out worker in the Pilbara.

13. The applicant’s evidence is that she and her sponsor were living together in a spouse like relationship from October 2012 onwards, albeit for only one week of every month until such time as they moved to Victoria and commenced living together continuously. The couple moved to Victoria in August 2014 where the sponsor had previously lived and they continued to live together in Langwarrin although the sponsor continued to fly in and fly out of Western Australia for work until early in 2016. The couple were married on 9 June 2015 at Gray’s Property, Fulham. The sponsor no longer works and the applicant is working as a homecare support worker. Her husband owns their house in Langwarrin.

14. The applicant provided detailed evidence about the review applicant’s family circumstances in Australia, his relationships with his children, and their shared daily lives.

15. The sponsor’s evidence the Tribunal hearing was wholly consistent with that of the visa applicant. He told the Tribunal that after meeting the visa applicant in December 2011 he knew by March 2012 that there was not going to be anyone else for him. They lived together in Perth from October that year. He told the Tribunal that the problem the couple had faced with providing evidence that they had been in a de facto relationship for twelve months prior to the date of application was complicated by the fact that his house was owned and managed under the name of the Taylor Family Trust rather than in his name exclusively. The couple had also not retained telephone records and it was difficult to prove their de facto status, especially as their co-habitation was not continuous because of the nature of his work.

16. The sponsor told the Tribunal that he went to Malaysia with the applicant in November 2012 and met all of the visa applicant’s siblings and friends, and on that trip they had decided that they would make a commitment to a lifelong partnership. This was at a time some sixteen months before the visa application was lodged. His divorce from his former wife was finalised in April 2012 although they had been separated from October 2010.

17. The review applicant told the Tribunal that another difficulty in providing the necessary evidence of their de facto relationship was that the relationship was not supported by his adult children from his first marriage. This has been a very difficult issue for him and he has even sought professional advice from a psychologist about it. He told the Tribunal that he has continued to pay attention to his children and it is a matter of distress for him that his spouse is seen as someone who has divided their affections. He stated that hopefully it is a matter of time until these relationships are resolved. He told the Tribunal that all of his children were invited to their wedding but they declined to attend. The visa applicant also expressed her concern and sadness about the rift in the sponsor’s relationship with his children.

18. In relation to the financial aspects of the relationship the parties’ evidence is that the visa applicant had some money of her own which she had saved, and over the course of their relationship the sponsor gave her some cash from time to time. They opened their first joint account to finance their travel together. That first jointly held account was opened in February 2013. The review applicant explained to the Tribunal that there are very few transactions on that account because they were using it to save for their holidays. They have provided records of their shared financial arrangements which are set out above.

19. The sponsor gave a detailed description of the development of his relationship with the visa applicant to a point where they chose to marry, and of their life together since.

20. Both the visa applicant in the review applicant gave evidence that they are very happy together and presented to the Tribunal as credible, mutually respectful and affectionate.

21. In the present case the visa application was made in March 2014 some three years before the date of the Tribunal’s decision, and in these circumstances the Tribunal has given weight to the principle set out in Bretag v Minister for Immigration, Local Government and Ethnic Affairs [1991] FCA 582 that a decision-maker (including the Tribunal) may have regard to the subsequent history of a relationship for the purpose of determining whether the relationship was genuine at an earlier time, so long as the material 'tends to logically show the existence or non-existence of facts relevant to the issue to be determined'.

‘Spouse or de facto partner’ requirement (cl.820.211(2)(a) and(c))

1. Cl.820.211 (2)(a) requires that at the time of application the applicant be the spouse or de facto partner of an Australian citizen, Australian permanent resident or eligible New Zealand citizen who is not prohibited by cl.820.211(2B) from being a sponsoring partner. The applicant must be sponsored by the spouse or de facto partner, or where the spouse has not turned 18, by a relevant parent or guardian.

2. On the evidence before it which includes a copy of the sponsor’s Australian Passport (Departmental file, f.12) the Tribunal finds that at the time of application the applicant was sponsored by a person who was identified as the applicant’s de facto partner and who is an Australian citizen who had turned 18. There is no evidence that that person was prohibited by cl.820.211(2B) from being a sponsoring partner.

The nature of the household

1. The parties’ evidence is that when they commenced a de-facto relationship the applicant was sharing a home with her sister in Perth and the sponsor was living in a home he owned under the auspices of his family trust, also in Perth. The applicant was studying during this period, and the sponsor was working as a fly in, fly out worker in the mining industry. He was in Perth approximately one week out of four, with the other three spent in the Pilbara.

2. The applicant and sponsor have provided consistent evidence that their de-facto relationship commenced in October 2012 when the applicant moved in with the sponsor for the weeks he was in Perth, and went back to her sister’s house when he flew out to the Pilbara. According to the parties’ submissions there is not much substantiating evidence of this because the sponsor’s house was owned by his family trust rather than in his name, and household documents were addressed to the family trust. Further the couple did not retain records for the times they were together and the applicant spent the larger part of each month at her sister’s house, which is why that residence was recorded as her residential address at the time of the visa application, a matter about which the delegate had expressed concern. However the numerous witness statements of family members and friends of the couple suggest that their relationship was that of de facto partners form late in 2012 as the couple has claimed. There is also documentary evidence the applicant and sponsor travelled to Malaysia together in November 2012 and presented themselves to the applicant’s family as a couple, and lived together as a de-facto couple during that trip, as they did on numerous other trips within Australia during the relevant period.

1. The parties provided consistent evidence that they pooled their finances to some extent from the time their de-facto relationship commenced, although the sponsor paid the household bills, and the applicant paid for more of their social activities. The applicant had some savings and the sponsor assisted by giving her cash from time to time. There is evidence that they maintained a joint bank account together from February 2013 to jointly save and pay for their shared travel costs.

2. According to the parties’ evidence, in August 2014 the couple moved from Western Australia to Victoria and moved in together to a home owned by the sponsor where they have lived together ever since. Both parties have provided very detailed descriptions of their shared household and domestic routine in their household in Langwarrin. This evidence is consistent with the documentary evidence they have provided and with the witness statements of numerous witnesses to the relationship.

3. The Tribunal is satisfied that the parties have established and maintained a shared household at the time of application and the time of decision.

The social aspects of the relationship

1. The applicant and sponsor have provided detailed witness statements and statutory declarations attesting to their relationship from numerous family members and friends.  They have provided consistent oral evidence of their shared social activities and travel. They have also provided photographs of themselves together on holidays in Australia and Malaysia and with other people at social events, and at their own wedding in June 2015. They provided evidence of correspondence addressed to them jointly, hotel bookings and flight itineraries. The sponsor was introduced to the applicant’s siblings and extended family in Malaysia in November 2012 and statements from the sponsor’s sister attest to their long standing and loving relationship.

2. The Tribunal is satisfied from the documentary and oral evidence before it which is set out above, that the parties have represented themselves socially to the applicant’s and sponsor’s families and to their friends and community as a couple since in or about October 2012.

The nature of the person’s commitment

1. The consistent evidence of the applicant and the sponsor is that they have been in an exclusive and committed de facto partner relationship since late 2012. They have provided personal statements attesting to their mutual love and commitment, and their hopes and plans for a shared future.

2. Their relationship has continued to progress over the course of several years and the couple has settled in Victoria and were married in June 2015. They are sharing a home and the applicant is employed in the aged care industry.

3. The applicant and sponsor impressed the Tribunal as highly credible witnesses, and their evidence about the inception and development of their relationship was both detailed and wholly consistent.  Both parties explained that while the applicant’s family and the sponsor’s sister support the relationship it has not had the support of the sponsor’s adult children in Australia. However the couple hopes that these relationships will improve over time.

4. The Tribunal considers that despite the challenging circumstances of the couple’s relationship, which have included the nature of the sponsor’s employment, their relocation from Western Australia to Victoria, and difficulties in the sponsor’s relationships with his children, the couple has demonstrated an ongoing and mutual commitment.

5. On the basis of the evidence before it the Tribunal finds that at the time of application and at the time of this decision, the parties were and are not living separately and apart on a permanent basis and that they see their future as a long term one. The Tribunal is also satisfied that the parties have a mutual commitment to a shared life together to the exclusion of others and that the relationship is genuine and continuing.

6. On the basis of the above the Tribunal is satisfied that the requirements of r.1.09A(3) and s.5CB(2) are met at the time of application

Are the additional criteria for a de facto relationship met?

1. As noted above, the Tribunal must also be satisfied for visas of this kind that the applicant has been in the de facto relationship for at least the period of 12 months ending immediately before the date of the application, unless the applicant can establish compelling and compassionate circumstances for the grant of the visa: r.2.03A(3).

2. As noted above, the Tribunal found both the applicant and the sponsor to be highly credible. The Tribunal accepts their evidence at face value that they were in a mutually exclusive relationship from October 2012, and the Tribunal is satisfied that the parties have maintained their relationship since then. Based on the evidence of the parties and the supporting statements provided by them which are set out above, the Tribunal accepts that the parties have shared a household since the sponsor moved into the sponsor’s house in Perth during the periods when he was residing in Perth from October 2012 onwards.

3. In so finding the Tribunal acknowledges that the applicant also maintained a residence at her sister’s house where she lived for approximately three weeks of each month, while living with the sponsor for approximately one week of each month, and that they maintained this arrangement until they relocated to Victoria in 2014. Thereafter they shared the sponsor’s home in Langwarrin on a continuing basis. However it is not a requirement of a de-facto relationship that the parties have continually resided together, but rather that they have been in a de facto relationship as defined in s.5CB during the relevant period. On balance, the Tribunal accepts that the de facto relationship commenced in October 2012. This means that the de facto relationship had been in existence for at least 12 months prior to the visa application on 6 March 2014.

4. The Tribunal is satisfied that the visa applicant had been in a de facto relationship with the sponsor for at least the period of 12 months ending immediately before the date of the application. Therefore r.2.03(A)(3) is satisfied.

5. The Tribunal is satisfied that at the time of application the parties satisfy the requirements of s.5CB(2)(d) and r.2.03A (2) for a de facto relationship which requires that the applicant and sponsor are not married to each other under a marriage that is recognised as valid for the purposes of the Act, are not related by family, and were of full age at the time of the visa application. Therefore the applicant satisfies cl. cl.820.211(2)(a).

6. Clause 820.221 requires that the applicant continues to meet the requirements of, relevantly, cl 820.211(2) at the time of decision. The Tribunal notes that the parties married on 9 June 2015 and registered the marriage on 9 July 2015. There is no evidence before the Tribunal to raise any issue as to the validity of the marriage for the purposes of the Marriage Act.

7. The Tribunal is satisfied that at the time of decision the applicant and sponsor are in a married relationship and that they have a mutual commitment to a shared life together to the exclusion of all others; that the relationship is genuine and continuing and that they continue to live together and do not live separately or apart on a permanent basis. They satisfy s.5F(2)(b)-(d).

8. Having had regard to all the circumstances of the relationship, including the matters set out in r.1.15A(3), the Tribunal finds that at the time of decision the applicant is the spouse of an Australian citizen and is sponsored by her spouse, therefore the requirements of 820.211(2)(a) and (c) continue to be met: cl.820.221(1).

CONCLUSIONS

1. The Tribunal will return the visa application to the Department for reconsideration. If the applicant meets the remaining criteria, the applicant will be entitled to the grant of a Subclass 820 visa.

DECISION

1. 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 of Schedule 2 to the Regulations;

• cl.820.221(1) of Schedule 2 to the Regulations; and

• r.2.03A

Mary Cameron
Member