Loy (Migration)

[2021] AATA 814

Loy (Migration) [2021] AATA 814 (25 March 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Joan Johanna Loy

CASE NUMBER:  1922112

HOME AFFAIRS REFERENCE(S):          BCC2018/3931080

MEMBER:Andrew George

DATE:25 March 2021

PLACE OF DECISION:  Darwin

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 of Schedule 2 to the Regulations; and

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

Statement made on 25 March 2021 at 1:08pm

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – genuine spousal relationship – validly married in Australia – financial, household and social aspects of relationship – nature of commitment – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5F, 65
Migration Regulations 1994 (Cth), r 1.15A; Schedule 2, cls 820.211, 820.221

CASE
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 26 July 2018 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 the applicant, Ms Loy.

3. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl 820.221(2). Materially, at the time of application the delegate found that the applicant and Mr Loy:

   a.did not have any joint assets, had made and joint purchases, or shared any past, current or ongoing financial responsibilities;

   b.did not have an established joint household;

   c.represent themselves as a couple to friends or family; or

   d.did not have a commitment to a shared life together.

4. The applicant appeared before the Tribunal on 25 March 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s sponsor, Mr Gary Loy, and her daughter, Ms Matilda Schoeman.

5. Prior to the hearing the applicants filed a Hearing Bundle with all relevant documents. This included written statements from the applicant, the sponsor, and Ms Schoeman all dated 17 March 2021.[1] The witnesses adopted these statements as their evidence.

   [1] Hearing Bundle/2.4.1, 2.4.3, 2.4.5

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)(d) 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.

8. ‘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?

9. The Tribunal has before it an official Certificate of Marriage between the applicant and sponsor registered in Darwin on 18 December 2017.[2] Of note, the usual place of residence given for both parties is 375 Arnhem Highway, Humpty Doo. 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).

   [2] ibid/1.6

   Are the other requirements for a spouse relationship met?

10. The matters that the Tribunal must consider are contained in r 1.15A(3)(a), (b), (c) and (d). These are the financial aspects of the relationship, nature of the household, social aspects of the relationship, and the nature of persons' commitment to each other.

    Financial aspects of the relationship

11. The Tribunal has before it a copy of the applicant’s and sponsor’s joint bank account.[3] This account contains household expenses such as groceries, telephone bills, and utilities. It also includes deposits for both the applicant and the sponsor. Of significance, the Tribunal also notes that oral evidence of Ms Schoeman that she has witnessed the applicant and sponsor share their expenses and not argue about money.

    [3] ibid/2.1.1

12. The Tribunal turns its mind to whether, as at the date of application, the sponsor and applicant had joint financial responsibility for their relationship. This is more difficult given the absence of evidence a joint bank account from that time. However, the Tribunal notes that applicant and sponsor were relatively newly wed at that stage and reminds itself of the evidence of Ms Schoeman. The Tribunal accepts the sponsor’s evidence that the applicant was not working until she commenced a cleaning business in Alice Springs. Accordingly, the Tribunal is satisfied that the applicant and sponsor have, and have had since the date of application, joint financial responsibility for their relationship.

    Nature of the household

13. The Tribunal has before it a letter dated 12 March 2021 from the landlord of 375 Arnhem Highway, Humpty Doo, stating that the applicant and sponsor were residing at that address between September 2017 and August 2019.[4] This is consistent with the applicant’s evidence that, in September 2017, the sponsor was appointed General Manager of Humpty Doo and Rural Areas Golf Club and they moved to that area. Materially, these living arrangements pre-date the visa application.

    [4] ibid/2.1.2

14. The applicant’s evidence is that both she and the sponsor moved to Alice Springs in August 2019. This is consistent with a lease renewal letter from Prestige Property Management dated 11 August 2020, stating that a lease in the names of both the applicant and sponsor started on 14 September 2021 and continues to the present date.[5]

    [5] ibid/2.1.3

15. On the material before it, the Tribunal is satisfied that the applicant and sponsor have been cohabiting since at least September 2017.

16. For completeness, the Tribunal also accepts the applicant’s and Ms Schoeman’s evidence that household duties – such as cooking and cleaning – are evenly divided between the applicant and sponsor.

17. Accordingly, the Tribunal is satisfied that the applicant and sponsor have an established joint household.

    Social aspects of the relationship

18. It is clear from Ms Schoeman’s evidence that the applicant and sponsor hold themselves out to family as a married couple.

19. The Tribunal also accepts the evidence of Ms Sybel De Wet,[6] Ms Catherine Conradie,[7] and Mr Claude Buntain,[8] to the effect that the applicant and sponsor’s friends have long regarded them as a married couple.

    [6] ibid/2.2.1

    [7] ibid/2.2.2

    [8] ibid/2.2.3

20. The Tribunal notes the various photographs of the applicant and sponsor at social events, which include family,[9] and evidence of joint travel.[10]

    [9] ibid/2.4.2

    [10] Ibid/2.3.1, 2.3.2, 2.3.3

21. On the evidence before it, the Tribunal is satisfied that the applicant and sponsor have represented themselves to friends and family as a married couple from their date of marriage to the present.

    Nature of persons’ commitment to each other

22. The applicant’s evidence is that she is in a loving and happy married relationship with the sponsor and that they are well settled in Alice Springs. She would be devastated if she had to return to South Africa without the sponsor.

23. The sponsor’s evidence is that he is genuinely in love with the applicant and that she is his “… confidant, best friend & love of my life”.

24. Ms Schoeman’s evidence is that she has seen the applicant’s and sponsor’s marriage grow over the past five years and that her two sons love their grandparents very much. Her evidence is, “As a family we are not ready to say good bye to our only grandparents, mum and stepdad in Australia”.

25. On the evidence of the witnesses, the Tribunal is satisfied that the applicant and sponsor draw a large degree of emotional support from each other. The Tribunal is also satisfied that the relationship is long-term and has been since at least the date of application.

26. On the evidence before it the Tribunal is satisfied that, at both the date of application and also decision, that the applicant and the sponsor live together, have a mutual commitment to a shared life that as a married couple to the exclusion of all others, and their relationship is genuine and continuing. The Tribunal is therefore satisfied that the requirements of s 5F(2) are met at the date the visa application was made and the date of this decision today.

27. The Tribunal is also satisfied that at the date of application that the applicant was the spouse of the sponsor and met cl 820.211 (2)(a) and cl 820.211(2)(c), cl 820.211(2)(d) not being engaged. These requirements continue to be met and so cl 820.221(1) of the Regulations is met.

28. 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

29. 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 of Schedule 2 to the Regulations; and

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

    Andrew George
    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).