Oem (Migration)

[2023] AATA 4394

Oem (Migration) [2023] AATA 4394 (14 December 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Lay Oem
Mr Salim Choeung
Mr Seak Aun Choeung

REPRESENTATIVE:  Mr Jordan Tew

CASE NUMBER:  2309368

HOME AFFAIRS REFERENCE(S):          CLF2017/71362

MEMBER:Margie Bourke

DATE:14 December 2023

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the applications for Partner (Residence) (Class BS) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 801 (Partner) visa:

·cl 801.221(2)(c) of Schedule 2 to the Regulations; and

The Tribunal remits the applications for Partner (Residence) (Class BS) visas for reconsideration, with the direction that the second and third named applicants meet the following criteria for a Subclass 801 (Partner) visa:

·cl 801.321(a)(ii) of Schedule 2 to the Regulations.

Statement made on 14 December 2023 at 3:09pm

CATCHWORDS
MIGRATION – Partner (Residence) (Class BS) visa – Subclass 801 (Partner) – Federal Circuit and Family Court remittal – genuine and continuing relationship – statutory declarations and documentation – length of relationship, valid marriage and family and community activities – financial, household and social aspects of relationship and nature of commitment – no requirement to reassess secondary applicants at time of decision – decision made without hearing necessary – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5F(2), 65, 360(2)(a)
Migration Regulations 1994 (Cth), r 1.15A(3), Schedule 2, cls 801.221(2)(c), 801.311(2), 801.321(a)(ii)

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 on 27 February 2018 to refuse to grant the applicants Partner (Residence) (Class BS) visas under s.65 of the Migration Act 1958 (Cth) (the Act).

2. The first named applicant (the primary visa applicant) applied for the visa on 9 July 2013 on the basis of her relationship with her sponsor. At that time, Class BS contained only one subclass: Subclass 801 (Partner). The criteria for the grant of this visa are set out in Part 801 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, who are applicants for the visa need satisfy only the secondary criteria.

3. The delegate in a decision dated 27 February 2018, refused to grant the visa on the basis that the primary visa applicant did not satisfy cl.801.221 because the delegate was not satisfied the primary visa applicant and the sponsor were in a genuine and continuing relationship. The delegate also found that the secondary visa applicants did not meet the secondary criteria in cl.801.321 as the primary visa applicant had not satisfied the primary criteria.

4. The applicants applied to the Tribunal for a review of the decision of the Department. The Tribunal, differently constituted, in a decision dated 13 June 2021, affirmed the decision of the Department in relation to all three visa applicants.

5. By order of the Federal Circuit and Family Court of Australia (Division 2) dated 31 May 2023, the matter was remitted back to the Tribunal. The order of the Federal Circuit and Family Court found that the previous Tribunal was affected by jurisdictional error in relation to the primary visa applicant as the Tribunal had considered whether the primary visa applicant met the requirements of incorrect clauses, and applied to the incorrect time consideration requirements. Similarly the judgement found the Tribunal decision was affected by jurisdictional error in relation to the secondary visa applicants in its assessment of the requirement and application of the appropriate clauses and regulatory requirements. It is noted that the judgement recorded the Minister conceded that if the appeal in relation to the primary visa applicant succeeded, then the appeal in relation to the secondary visa applicants must appropriately also be granted.

6. The Tribunal has considered the information provided by the review applicants to the Department, the previous Tribunal and the Tribunal in relation to this further review. The Tribunal has considered the judgement of the Federal Circuit and Family Court (Division 2) dated 31 May 2023. The Tribunal invited the review applicants to provide submissions in relation to issues concerning both the primary visa applicant and the secondary visa applicants relevant to the review. The Tribunal has decided it can make a decision favourable to the three review applicants based on the information available to it, without proceeding to hearing, pursuant to s.360(2)(a) of the Act.

7. The applicants were represented in relation to the review, and the Tribunal acknowledges the thorough and detailed responses, submissions and evidence provided to it by the review applicants’ representative.

8. The following are the written reasons that the Tribunal has concluded the matters should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The Tribunal has received a detailed statutory declaration from the primary review applicant Lay Oem dated 10 December 2023, with attachments including her passport, a statement from her current landlord, a collection of rent receipts over the 12 month period November 2022 to November 2023, photographs of the internal of the home, joint bank statements from July 2021 to September 2023, payslips, utility bills for the residential address, furniture receipt recording the residential address in joint names, Cambodian Association membership (undated) in joint names, donation receipt in joint names, wedding invitation and an extensive selection of photos over a period of time with descriptions attached showing the review applicants and sponsor in a variety of settings. The Tribunal received a statutory declaration from the sponsor dated 10 December 2023 with a copy of his Australian passport attached. The Tribunal received a statutory declaration from the two secondary review applicants dated 9 December 2023 and 11 December 2023 with copies of their passports and a recent photograph attached. The Tribunal received two statutory declarations dated 7 December 2023 and 8 December 2023 from persons who know the review applicants and the sponsor providing details of their knowledge of the relationship.

10. The Tribunal also received a submission from the review applicants’ representative dated 11 December 2023.

11. The Tribunal is satisfied based on its assessment of the total information before it, that the three review applicants and the sponsor resided together as a family at the same rented Springvale address over a number of years. The Tribunal is satisfied that the primary review applicant and the sponsor were married in May 2013, and have been in a marital relationship now for over 10 years. Tribunal is satisfied that the primary review applicant and the sponsor have lived in rental accommodation, operate a joint bank account and are both employed as seasonal fruit pickers. The Tribunal is satisfied that the primary visa applicant is mainly responsible for the cooking of meals for the family, but all members of the household assist with house work tasks. The Tribunal is satisfied that the parties attend Cambodian Association functions and family events, and go shopping together. The Tribunal is satisfied that the sponsor has assumed a paternal role for his two stepsons since the family has lived together. The Tribunal is satisfied that the sponsor has returned to Cambodia to assist his sister on occasion, with the support of the primary review applicant. The Tribunal is satisfied that the younger secondary visa applicant, Seak Aun Choeung, recently won a community singing competition and was supported by both his parents at the time.

    SPOUSE/DEFACTO (cl.801.221(2))

    Whether the parties are in a spouse or de facto relationship

12. Relevantly to this matter, cl.801.221(2)(c) requires that at the time o. decision, the applicant is the 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 related Subclass 820 visa application as the spouse or de facto partner of the applicant. In the present case the applicant claims to be the spouse of the sponsor who is an Australian citizen and was identified in the Subclass 820 visa application. On the evidence before it, the Tribunal is satisfied that the sponsor is the ‘sponsoring partner’ of the applicant.

13. ‘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 visa applicant’s and sponsor’s 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?

14. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship.  The Tribunal is satisfied the primary review applicant and the sponsor were married as recorded in the registered married certificate on 28 May 2013. 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).

    Are the other requirements for a spouse relationship met?

15. Financial aspects of the relationship: – the Tribunal is satisfied that the primary review applicant and the sponsor do not jointly own real estate or other major assets, and do not have joint liabilities, excluding their rent commitments and utility bills. The Tribunal is satisfied the parties pool their financial resources in the sense they manage a joint bank account for the purpose of paying their bills, but they do not pool financial resources in relation to major financial commitments. There is no evidence before the Tribunal that one person in the relationship owes any legal obligation in respect of the other. The Tribunal is satisfied that the parties share their day-to-day household expenses paid out of the joint bank account.

16. The evidence of the financial aspects of the relationship indicates that at the time of decision the relationship is genuine and continuing.

17. Nature of the household: – the Tribunal is satisfied that the primary review applicant and the sponsor have the joint responsibility for the care and support of the adult children of the primary review applicant, who reside with them, and who are the secondary visa applicants in this review. The Tribunal is satisfied that the parties live together as a married couple in their rented accommodation as claimed. The Tribunal is satisfied that the parties share the responsibility for house work, and accepts the primary review applicant undertakes the responsibility for most of the cooking for the family.

18. The evidence of the nature of the household indicates that at the time of decision the primary review applicant and the sponsor are in a genuine and continuing relationship, and live together, and not separately and apart, on a permanent basis.

19. Social aspects of the relationship: – the Tribunal is satisfied that the primary review applicant and the sponsor represent themselves to other people as being married to each other. The Tribunal is satisfied that in the opinion of the persons’ friends family and acquaintances the nature of their relationship is ongoing, genuine, committed and long-term. The Tribunal is satisfied that the basis on which the persons plan and undertake their joint social activities is around the needs of their household and participating in community events together.

20. The evidence of the social aspects of the relationship indicates that the primary review applicant and the sponsor are in a genuine and continuing relationship at the time of decision.

21. The nature of the persons’ commitment to each other: – the Tribunal is satisfied that at the time of decision the parties have been married for 10 ½ years, and have resided together for 10 ½ years. The Tribunal is satisfied that the parties have provided companionship and emotional support for each other during the relationship. The Tribunal is satisfied that the primary review applicant and the sponsor consider their relationship is long-term.

22. The evidence of the nature of the primary review applicant’s and the sponsor’s commitment to each other indicates that at the time of decision they have a mutual commitment to a shared life as a married couple to the exclusion of all others, that their relationship is genuine and continuing, and that they live together, and not separately and apart, on a permanent basis.

23. The Tribunal has considered all the circumstances of the relationship as required pursuant to reg 1.15A(3). The Tribunal is satisfied that at the time of decision the primary review applicant and the sponsor have a mutual commitment to a shared life as a married couple to the exclusion of all others, have a genuine and continuing relationship, and live together, and not separately and apart, on a permanent basis. Accordingly, the Tribunal is satisfied that the relationship between the primary review applicant and the sponsor meets the definition of spousal relationship in s.5F(2)(b), (c) and (d) at the time of decision.

24. Given these findings the Tribunal is satisfied that the requirements of s.5F(2) are met at the time of this decision. Therefore, the Tribunal finds that the primary review applicant is the spouse of the sponsoring partner, and therefore the primary review applicant meets the requirements of cl.801.221(2)(c).

    SECONDARY CRITERIA (cl.801.321)

    Secondary visa applicants

25. Cl.801.321 applies at the time of decision and states an applicant meets the requirements of this clause if

    (a) any of the following applies

    (i) the applicant is the holder of  (A) a subclass 445 (Dependent Child) visa or (B) [omitted] or (C) a subclass 820 (Partner) visa granted on the basis that the applicant was the dependent child, or a member of the family unit, as the case requires, of another person who is the holder of a subclass 445 or 820 visa;

    (ii) the applicant was the holder of (A) a subclass 445 visa or (B) a subclass 820 visa which ceased on notification of a decision to refuse a Subclass 801 visa to the person of whom the applicant is a dependent child or of whose family unit the applicant is a member;

    (iii) the applicant is a person (A) who holds (l) a subclass 445 visa or (ll) a subclass 820 (spouse) visa or (lll) a subclass 820 (partner) visa which the Minister has decided under section 345, 351, 391, 417, 454 or 501J of the Act to grant to the applicant and (B) who at the time of the visa mentioned in subparagraph (A) was the dependent child or a member of the family unit as the case requires, of another person who was the holder of a subclass 445 visa (Dependent child), subclass 820 (spouse) visa, or subclass 820 (partner) visa and

    (b) that other person has been granted to subclass 801 visa.   

26. The Tribunal has considered the circumstances of the secondary visa applicants. The secondary visa applicants are not the holders of a subclass 445 visa or a subclass 820 visa at the time of this review. Therefore, the secondary visa applicants cannot meet the requirements of either cl.801.321(a)(i) or (iii).

27. The judgement remitting the matter back to the Tribunal referred to Ground 2 of the application for appeal which applies to the secondary visa applicants, and, which claimed the Tribunal’s decision of 13 June 2021 was affected by jurisdictional error as the Tribunal had misapprehended the criteria to be satisfied by the second and third applicant. The particulars prescribed in Ground 2 identified that cl.801.311(2) requires a secondary visa applicant meets the definition of dependent children at the time of application and that subdivision 801.32 of Schedule 2 to the regulations which prescribes criteria to be satisfied at the time of decision does not require secondary applicants to satisfy the definition of dependent child at the time of decision.

28. The judgement states that ground 2 succeeds. The judgement records that the Tribunal identified the wrong criteria, namely member of family unit requirement, in relation to the criteria assessed for the two secondary visa applicants. The judgement set out the requirements of cl.801.311, which is time of application criteria, and in relation to time of decision criteria, the judgement records the requirements only of cl.801.321(a)(i)(C). This subclause, cl.801.321(a)(i)(C), applies to a secondary visa applicant who is the holder of a subclass 820 visa which was granted on the basis that the secondary visa applicant was the dependent child, or a member of the family unit of another person who is the holder of a subclass 445 or 820 visa.. The fact the judgement did not refer or discuss the entirety of  cl.801.321, and in particular did not refer to the particular provision that applied to the circumstances of the secondary visa applicant, (namely cl.801.321(a)(ii)), made the judgement direction unclear in relation to the secondary visa applicants.

29. For this reason, the Tribunal considers it appropriate and proper in this review to consider the criteria the secondary visa applicants are required to meet for the purpose of the grant of the visa. The Tribunal advised the review applicants that whether the secondary visa applicants met the requirements of cl.801.321 was an issue relevant to the review. The Tribunal invited the review applicants to address the issue as to whether the requirements of cl.801.321 (a)(ii) apply to the second and third named review applicants, and if the second and third named review applicants meet these requirements.

30. The Tribunal accepts that the secondary visa applicants were the holders of a Subclass 820 visa is which ceased at the time of the Department’s decision record dated 27 February 2018, which refused the application for a subclass 801 visa in relation to the primary review applicant.

31. The Tribunal has considered the specific requirements of cl.801.321(a)(ii) that the visa applicant was the holder of a subclass 820 visa which has ceased upon the refusal of a subclass 801 visa to a primary visa applicant of whom the secondary visa applicant is a dependent child or of whose family unit the secondary visa applicant is a member. The issue in this review is whether this subclause requires at the time of decision that a secondary visa applicant to be assessed as a dependent child or member of a family unit of the primary visa applicant.

32. The Tribunal has considered the Commonwealth Numbered Regulations - Explanatory Statements, Migration Amendment Regulations 2003 (No 2) 2003 No 94, Item [1108] in relation to subparagraph 801.321(a)(iii). This statement applies to subparagraph (iii) of cl.801.321(a) which relate to decisions made by the Minister, and not subparagraph cl.801.321(a)(ii). The Explanatory Statement sets out that this amendment gives effect to the policy intention that nothing should require secondary applicants to be a dependent child or member of the family unit at the time of decision. The Tribunal finds that this is informative of the intention of cl.801.321 generally and applies to the interpretation of cl.801.321(a)(ii). The Tribunal accepts the Explanatory Statement identifies the correct interpretation of cl.801.321(a) (i), (ii) and (iii) is that the decision-maker is not required to reassess whether the secondary visa applicant is a dependent child or member of the family unit of the primary visa applicant at the time of decision.

1. The Tribunal has considered the submission from the review applicant’s representative dated 11 December 2023. The representative identified two possible interpretations of cl.801.321(a)(ii), as either previously assessed as a dependent child, or having to be assessed as a dependent child at time of decision.  The representative submits requiring only secondary visa applicants who were the dependent child of primary visa applicants whose applications for a Subclass 801 visa was refused by the Department to be again assessed at the time of decision of a subclass 801 visa to meet the requirements of being a dependent child or member of the family unit of the primary visa applicant, would penalise these particular secondary visa applicants. 

2. The Tribunal accepts that the interpretation of applying the requirement for assessment at time of decision to only a specific group of secondary visa applicants who were dependent children of primary visa applicants whose applications for Subclass 801 visas were refused, has a penalty or discriminatory aspect.

3. The representative provided the Tribunal with copy of the Departmental policy in relation to Subclass visa 801 family unit members, which sets out at point 17 that at time of decision there is no need to assess dependency or membership of family unit to satisfy secondary criteria. The Tribunal accepts that the policy of the Department is that there is no requirement in relation to the assessment of secondary visa applicants in a Subclass 801 visa application to assess whether they are dependent children or members of the family unit of the primary visa applicant at the time of decision.

4. After considering the direction in the judgement, the Explanatory Statement, Departmental policy, and the wording of cl.801.321(a)(ii), the Tribunal is satisfied that secondary visa applicants, including secondary visa applicants whose Subclass 820 visa ceased on notification of a decision to refuse the subclass 801 visa of the primary visa applicant, there is no requirement for the Tribunal on review to reassess whether the secondary visa applicant is a dependent child or member of the family unit of the primary unit of the primary visa applicant at the time of decision.

5. The Tribunal is satisfied the secondary visa applicants were the dependent children of the primary visa applicant at the time of the grant of the Subclass 820. The Tribunal is satisfied the Subclass 820 visa of the secondary visa applicants, ceased upon notification to the visa primary visa applicant of the Department decision to refuse the application for the Subclass 801 visa on 27 February 2018. The Tribunal is satisfied that these are the only requirements the secondary visa applicants must meet to satisfy the criteria of cl.801.321(a)(ii).

6. Accordingly, the Tribunal finds the two secondary visa applicants meet the requirements of cl.801.321(a)(ii).

7. As the primary review applicant has not been granted a subclass 801 visa, the Tribunal cannot make a finding or direction in relation to whether the secondary visa applicants meet the requirements of cl.801.321(b).

8. 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 801 visa.

   DECISION

9. The Tribunal remits the applications for Partner (Residence) (Class BS) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 801 (Partner) visa:

   ·cl.801.221(2)(c) of Schedule 2 to the Regulations; and

   the Tribunal remits the applications for Partner (Residence) (Class BS) visas for reconsideration, with the direction that the second and third named applicants meet the following criteria for a Subclass 801 (Partner) visa:

   ·cl.801.321(a)(ii) of Schedule 2 to the Regulations.

   Margie Bourke
   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).