Mikho (Migration)

Mikho (Migration) [2018] AATA 1768 (4 May 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Husny Mikho
CASE NUMBER:  1611304
DIBP REFERENCE(S):  BCC2015/1474630
MEMBER:Scott Clarey
DATE:4 May 2018
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; and
·cl.820.221(1) of Schedule 2 to the Regulations

Statement made on 04 May 2018 at 11:12am
CATCHWORDS
Migration – Partner (Temporary) (Class UK) visa – Subclass 820 (Spouse) – Spouse of the sponsor – Registry wedding – Joint bank account – Shared household expenses – Shared housework – Cohabitation after wedding – Digital photos and videos social settings – Child in relationship – Decision under review remitted
LEGISLATION
Migration Act 1958, ss 5F, 65
Migration Regulations 1994, r 1.15A, Schedule 2 cls 820.211, 820.221
statement of decision and reasons
APPLICATION FOR REVIEW

This is an application for review of a decision of a delegate of the Minister for Immigration on 15 July 2016 to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s.65 of the Migration Act 1958 (the Act).
The applicant applied for the visa on 22 May 2015 on the basis of his relationship with his 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.
The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.820.211 because the delegate was not satisfied that the review applicant is the spouse or de facto partner of the sponsor.
The review applicant appeared before the Tribunal on 18 April 2018 to give evidence and present arguments. The Tribunal also received oral evidence from Seror Akram (sponsor), Anwar G Mikho, Bassam Akram Ibrahim and Faten Kikmat Salaiman. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.
The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the review applicant is the de facto partner or spouse of the sponsor.
Whether the parties are in a spouse or de facto relationship
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 who is an Australian citizen by grant on 6 December 2016.
‘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 r.1.15A(3), which is extracted in the attachment to this decision.
Are the parties validly married?
If the parties are validly married, they may meet the requirements of a spousal relationship, but not a de facto relationship. The review applicant presented with his application a copy of the marriage certificate showing the marriage was registered in Melbourne on 9 April 2015. There is nothing to suggest that the marriage is not valid. On the evidence, the Tribunal accepts 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?
The Tribunal has considered the documentary evidence of the relationship that was submitted with the primary application and notes there is a substantial amount of additional evidence before the Tribunal. The Tribunal has also had the benefit of the couple’s oral evidence and found them to be credible witnesses.
Based on written and oral evidence before it, the Tribunal is satisfied that the couple were originally introduced through family members in August 2014. The Tribunal notes that the review applicant gave some initially confused evidence about the initial date and location of this first meeting, but accepts that this was due to nerves and/or lapses in memory due to the passage of time. The Tribunal accepts that the couple then met at their church, which both the review applicant and sponsor claim was a coincidental meeting as they did not know the other attended the same church. The couple began regular correspondence over subsequent weeks and met up in person regularly for meals and shopping dates, in addition to a weekly meeting at their Sunday church service. The Tribunal accepts that in November 2014, a cultural practice (roughly translated as a ‘promise ceremony’) took place, where the review applicant’s family (which includes three brothers who live in Australia) went to the sponsor’s family home and sought permission for the couple to become engaged, which was granted. Rings and gifts were exchanged by family members as part of the ceremony as per cultural practice. The Tribunal accepts that the couple held a formal engagement celebration on 17 January 2015. The Tribunal accepts that the couple were married in a registry wedding on 9 April 2015. The Tribunal notes the applicant’s evidence that his visa application was one factor in the timing of the registry wedding, but accepts that is was not the primary motivating factor for the marriage itself. The Tribunal accepts that the couple held a more elaborate cultural/religious wedding ceremony on 14 August 2015 that was attended by more than 100 friends and family members. The Tribunal has viewed numerous photos of the engagement and cultural wedding events.
The Tribunal accepts that for cultural reasons the couple did not think it appropriate to reside together until they were married. The Tribunal accepts that the review applicant moved in to the family home of the sponsor in Lalor on or shortly after that day of the registry wedding on 9 April 2015. The Tribunal accepts that in the days following the cultural wedding on 14 August 2015, the couple moved out of the family home and into a rental property in Campbellfield. The Tribunal accepts that the couple moved from the Campbellfield rental property to another property in Lalor in March 2018, where they currently reside together with their daughter. The Tribunal accepts that the review applicant and sponsor have not been previously married.
The Tribunal notes that since the delegate’s decision the couple has given birth to a baby girl, born on 3 May 2017 at the Northern Hospital in Epping.
The financial aspects of the relationship
Joint ownership of real estate or other major assets, joint liabilities, the extent of any pooling of financial resources, whether one person in the relationship owes any legal obligation in respect of the other and the basis of any sharing of day-to-day household expenses are relevant factors to consider when assessing the financial aspects of the relationship.
The Tribunal questioned the couple about their financial arrangements. Both the review applicant and the sponsor gave consistent evidence about each other’s employment and financial affairs. The Tribunal accepts that the review applicant is self-employed and runs his own mobile windscreen replacement business, earning between $2,000-$4,500 per month. The Tribunal accepts that the sponsor is not currently employed but worked briefly in a fast food restaurant prior to the birth of her child. The Tribunal accepts that the sponsor currently receives Centrelink benefits.
There is evidence that the review applicant and the sponsor operate a joint bank account with the ANZ Bank. The Tribunal notes that the parties have submitted some financial statements for the joint account covering a period from October 2015 to April 2017. Although the statements do not form a complete financial history over this period, the documents do list some transactions that are consistent with the purchase of household related items such as groceries and the transfer of rent to their landlord. With respect to any sharing of day-to-day household expenses, the Tribunal accepts that the joint account is contributed to, and accessed by, both the review applicant and the sponsor to cover general household and living expenses. The Tribunal accepts that although the review applicant is the primary income earner, both he and the sponsor take responsibility for financial transactions such as paying rent and bills from the joint account. The Tribunal notes that the income derived from the review applicant’s windscreen replacement business is primarily cash, and therefore does not always appear in the transaction records of the joint account. The Tribunal accepts that the sponsor maintains a personal bank account with NAB. The Tribunal accepts that the couple share their household expenses in a way that best suits their needs. The Tribunal accepts the couple’s oral evidence and notes that it is corroborated by some documentary evidence.
The Tribunal accepts that the couple reside at a rental property in Lalor, for which they share the $1200 monthly rent. The Tribunal accepts that the sponsor purchased a block of land in Mickleham in March 2018 for $272,000. The Tribunal has viewed documentary evidence that supports these claims. The Tribunal notes the title of the land is in the sponsor’s name only, but accepts this is due to the uncertainty surrounding the review applicant’s visa status. The Tribunal accepts that this was also the primary reason that the couple were unable to obtain a bank loan for the purchase of the land, and instead had to borrow the money from both the parents of the review applicant and the sponsor. The Tribunal accepts that the couple intend to make another loan application if /when the review applicant’s visa is obtained, to pay back money borrowed from the couple’s parents. The Tribunal accepts that the couple intend to build a family home at the site at a later date.
The Tribunal places some weight on the financial aspects of the relationship.
The nature of the household
Joint responsibility for the care and support of children, the living arrangements of the persons and any sharing of the responsibility for housework are matters to be considered when assessing the nature of the household.
The couple spoke about their living arrangements. The Tribunal is satisfied that the review applicant and sponsor have resided together since April 2015, first in the home of the sponsor’s parents in Lalor, then in a rental property in Campbellfield, before moving to a rental property in Lalor in March 2018 where the couple currently reside with their daughter. The Tribunal accepts that for cultural reasons the couple did not think it was appropriate to cohabitate prior to their wedding on 9 April 2015.
With respect to the sharing of the responsibility for housework, both parties told the Tribunal that they share household responsibilities and gave consistent oral evidence as to the general breakdown of these responsibilities. The Tribunal accepts that the couple share responsibility for grocery shopping. The sponsor is primarily responsible for cleaning and general household chores and does most of the cooking.
The Tribunal notes and accepts that since the delegate’s decision, the sponsor has given birth to a baby girl, born on 3 May 2017 at the Northern Hospital in Epping. The Tribunal has seen a registered copy of the child’s birth certificate which lists the review applicant as the father. The Tribunal is satisfied that the review applicant is the biological father of the child. The Tribunal accepts the consistent and credible oral evidence of the couple that they both have joint responsibility for the care and support of their daughter Chloe.
The Tribunal gives significant weight to the nature of the household.
The social aspects of the relationship
Whether the persons represent themselves to other people as being in a de facto relationship with each other, the opinion of the persons’ friends and acquaintances about the nature of the relationship and any basis on which the persons plan and undertake joint social activities are relevant matters to be considered in determining the social aspects of the relationship.
The Tribunal is satisfied that the parties have represented themselves socially as a couple to their family and friends and continue to do so at the time of this decision. In addition to the consistent oral evidence of the couple at the hearing, the Tribunal has considered evidence relating to the social aspects of the relationship, including numerous digital photos and videos provided to the Tribunal of the couple’s formal engagement in January 2015; their cultural/religious wedding in August 2015; and the christening of their daughter in October 2017. The Tribunal notes that these functions were very large social/cultural events attended by dozens of the couple’s family members and friends.
The Tribunal asked the couple about their joint social activities and holidays. They gave consistent oral evidence of holidays they had undertaken together, both mentioning multiple trips they have taken to the Gold Coast and future plans to holiday in Italy. The couple also gave somewhat vague but generally consistent oral evidence of the things that they enjoyed doing together as a couple, which includes shopping at various shopping centres, eating out and watching movies together. Both the review applicant and the sponsor consistently and independently spoke of the last movie they had watched together. The Tribunal notes that there is documentary evidence, including photos and Tigerair boarding passes for a Gold Coast flight, on the Tribunal’s file corroborating some of these claims. The Tribunal accepts the couple’s claims regarding the social aspects of their relationship and notes that the couple’s social life has been curtailed since the birth of their daughter last year.
In view of the evidence before it in relation to the social aspects of the relationship, the Tribunal places significant weight on the social and public recognition of the relationship.
The nature of the persons’ commitment to each other
The duration of the relationship, the length of time during which the persons have lived together, the degree of companionship and emotional support that the persons draw from each other, and whether the persons see their relationship as long-term are all aspects to be considered in determining the nature of the person’s commitment to each other.
The consistent evidence of the couple is that they have been in an exclusive and committed relationship since at least November 2014 (when the cultural ‘promise ceremony’ took place), having first met in August 2014. The couple were married in April 2015 and began residing together shortly afterwards. The Tribunal accepts that for cultural reasons the couple did not think it appropriate to reside together until they were married. The Tribunal notes that on the original visa application the couple noted the date of 9 April 2015 as the date they committed to a shared life together. The Tribunal believes, following the extensive and consistent oral evidence at the hearing, including from several of the witnesses, that this commitment actually occurred at the abovementioned time, and the date on the form related to the day the couple were legally married.
Both the review applicant and sponsor impressed the Tribunal as credible witnesses. Although there was some confusion from the review applicant about specific dates relating to the inception and early development of the relationship, the evidence was generally both detailed and consistent. The Tribunal questioned both parties about their familiarity with each other and is satisfied that they both demonstrated detailed knowledge of each other’s lives suggestive of a couple in a genuine and ongoing spousal relationship. The Tribunal notes that the couple gave highly consistent evidence about the day their daughter was born and the sequence of events that led up to the birth, including timing and details of the labour and travel to the hospital.
The Tribunal accepts that since the birth of their daughter in May 2017, the couple have had joint responsibility for the care and support of the child. The Tribunal regards this as strong evidence of the nature of the couple’s commitment to one another, and the genuineness of the relationship. The Tribunal accepts that the couple rely on each other for emotional support.
In light all the evidence that is before it, the Tribunal finds that the parties see their relationship as a long-term one.
Accordingly, the Tribunal is satisfied, considering all of the evidence cumulatively, that the review applicant and sponsor have demonstrated, and continue to demonstrate, a level of commitment to one another and to their relationship as contemplated in the Regulations.
The Tribunal places significant weight on the nature of each person’s commitment to the other.
Conclusion on s.5F(2) requirements
On the basis of the above the Tribunal is satisfied the parties are married to each other under a marriage which is valid for the purposes of the Act, and therefore at the time of application and time of decision the parties meet s.5F(2)(a).
The Tribunal is satisfied that at the time of application and the time of decision the review applicant and sponsor have a mutual commitment to a shared life as married couple to the exclusion of all others. The Tribunal is satisfied that the relationship is genuine and continuing. The couple therefore meet the requirements of s.5F(2)(b) and s.5F(2)(c) for a married relationship.
Additionally, the Tribunal is satisfied that at the time of application and time of decision the review applicant and the sponsor live together. Accordingly, the couple meets the requirements of s.5F(2)(d) for a married relationship.
For these reasons the Tribunal finds that at the time of application and time of decision the review applicant and sponsor are in a married relationship within the meaning of s.5F(2) and therefore satisfy the definition of ‘spouse’ contained in s.5F of the Act.
The Tribunal is satisfied that at the time of application, and time of decision, the applicant was the spouse of a person who is an Australian citizen, that the applicant was sponsored by that person. The Tribunal finds that there is no evidence before it which indicates that the sponsor was prohibited from being a sponsoring partner under cl.820.211(2B).
Accordingly the applicant meets the requirements of cl.820.211(2)(a) and (c).
Based on the Department’s movement records, the Tribunal also finds that at the time of application the review applicant was the holder of a substantive visa, and therefore cl.820.211(2)(d) does not apply.

Given these findings the Tribunal is satisfied that at the time the visa application was made and at the time of this decision the parties were in a spousal relationship. Therefore the applicant meets cl.820.211 and cl.820.221(1).
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
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; and
·cl.820.221(1) of Schedule 2 to the Regulations
Scott Clarey
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).

[2018] AATA 1768

4 May 2018

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Immigration

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