Mataibeci (Migration)

[2024] AATA 3054

Mataibeci (Migration) [2024] AATA 3054 (12 August 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Kermit Mataibeci

CASE NUMBER:  2003186

HOME AFFAIRS REFERENCE:               BCC2018/474583

MEMBER:Glynis Bartley

DATE:12 August 2024

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.

Statement made on 12 August 2024 at 1:01pm

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – relationship breakdown – exceptions not applicable – decision under review affirmed

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

STATEMENT OF DECISION AND REASONS

ISSUE

1. The issue in this review is whether the applicant, Mr Kermit Mataibeci, is the spouse of his sponsor, Ms Kelera Ware, at the time of this decision.

   APPLICATION FOR REVIEW

2. 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).

3. The applicant applied for the visa on 29 January 2018 on the basis of his relationship with his 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 at least one applicant.

4. The delegate refused to grant the visa on 30 January 2020 on the basis that the applicant did not satisfy cl.820.211 of the Regulations. The delegate was not satisfied that the applicant was the spouse of his sponsor, as defined in s 5F of the Act.

5. The applicant applied to the Tribunal for review of the delegate’s decision on 19 February 2020.

6. The applicant appeared before the Tribunal on 5 August 2024 to give evidence and present arguments. The applicant’s current partner, Ms Ashlee Jones, attended the hearing with the couple’s infant son.

7. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   BACKGROUND

8. The applicant is a 33-year-old citizen of Fiji. He has not declared any previous marriages or de facto relationships. The applicant has a 13-year-old daughter, who lives in Fiji. The applicant first travelled to Australia on 28 August 2012 after being granted a New Zealand Citizen Family Relationship (Subclass 461) visa, which ended on 28 August 2017. He has been granted a series of Bridging visas since that date.

9. The sponsor is a 46-year-old New Zealand citizen who lives in Australia. She has not declared any previous marriages or de facto relationships.

10. The applicant and the sponsor (the parties) stated in the application that they met in Fiji in 2010 and formed a committed relationship in January 2011. They were married in Fiji on 14 February 2012.

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. In making my decision, I have had regard to the documents in the Department and Tribunal files and the oral evidence at the hearing.

12. The applicant gave his oral evidence in an open and forthright manner. He presented as sincere, and I was satisfied that his evidence was reliable.   

    Is the applicant in a spouse relationship with the sponsor at the time of this decision?

13. Clause 820.221 of the Regulations requires that at the time of this decision, the applicant continues to be the de facto partner or spouse of the ‘sponsoring partner’, who must be an Australian citizen or Australian permanent resident or an eligible New Zealand citizen who was specified in the Subclass 820 visa application as the spouse or de facto partner of the applicant. The applicant applied for the visa on the basis of his relationship with the sponsor, who is a New Zealand citizen.

14. The applicant advised me at the hearing that his relationship with his sponsor broke down in early 2020, and he moved out of the home they shared in the Illawarra region soon afterwards. The applicant subsequently formed a relationship with Ms Jones, and they now have a child together.

15. I make the following findings after having regard to the evidence before me.

16. On the basis of the above, I find that the applicant and the sponsor do not live together and have not lived together since early 2020. They do not maintain a joint household or share housework. I find that the applicant and the sponsor do not share their finances, have shared liabilities or jointly contribute to expenses. The applicant and the sponsor do not represent themselves to others as being in a relationship or socialise together. I find that the applicant and the sponsor do not have a mutual commitment to the relationship or draw companionship and emotional support from each other. They do not see the relationship as a long term one.

17. Consequently, I am not satisfied that at the time of this decision the applicant and the sponsor have a mutual commitment to a shared life to the exclusion of all others. I am not satisfied that their relationship is genuine and continuing. Accordingly, I find that at the time of this decision, the applicant is not the spouse (as defined in s 5F of the Act) of the sponsor. Therefore, the applicant does not meet cl.820.221(1)(a).

18. I considered whether the applicant met any of the three exceptions set out in subclauses 820.221(2) or (3). I invited the applicant to provide information about whether any of the exceptions were applicable. He advised me that none of the exceptions were relevant.

19. The applicant confirmed that the sponsor is still alive; he had recent communications with her following receipt of the invitation to the Tribunal hearing. The applicant gave oral evidence that he and the sponsor did not have children together, and there are no relevant court orders or responsibilities in relation to children. The applicant confirmed that the family violence exception is not applicable.

20. I am not satisfied that the applicant meets the alternative criteria set out in subclauses 820.221(2) or (3). Consequently, I find that the applicant does not meet cl.820.221.

21. For the reasons above, the applicant does not satisfy the criteria for the grant of the visa.

    DECISION

22. The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.

    Glynis Bartley
    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).