Okpara (Migration) - [2024] AATA 1434

Okpara (Migration) [2024] AATA 1434 (17 May 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mrs Chioma Lucy Okpara
CASE NUMBER:  2202724
HOME AFFAIRS REFERENCE:               BCC2018/2733846
MEMBER:Maxina Martellotta
DATE:17 May 2024
PLACE OF DECISION:  Perth
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(2) of Schedule 2 to the Migration Regulations 1994 (Cth); and
· cl 820.221(1)(a) of Schedule 2 to the Migration Regulations 1994 (Cth).

Statement made on 17 May 2024 at 11:11am
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – genuine and continuing relationship – sharing of household expenses – applicant’s assistance with the sponsor’s children – separate recorded residential addresses with Centrelink – support statements from family and friends – family social activities – support in seeking employment – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5, 57, 65
Migration Regulations 1994, Schedule 2, cls 820.211, 820.221; r 1.15
CASES
Ally v MIAC [2008] FCAFC 49
Bretag v IRT [1991] FCA 582
He v MIBP [2017] FCAFC 206
Jayasinghe v MIMA [2006] FCA 1700
Li v MIAC [2007] FCA 1098
Li v MIAC [2007] FMCA 454
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

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).
The applicant applied for the visa on 21 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 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 applicant did not satisfy cl 820.211 because they were not satisfied that the applicant met the definition of a spouse under s 5F of the Act.
The applicant appeared before the Tribunal on 2 April 2024 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor. The Tribunal deferred making a decision to allow the applicant to provide further materials in support of their evidence. In addition to the oral evidence, the Tribunal has also taken into consideration materials on the Department file and materials provided to the Tribunal.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
Section 376 non-disclosure certificate
A s 376 non-disclosure certificate dated 2 March 2022 was included on the Department file. It stated that certain materials on the Department file had been…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Okpara (Migration) [2024] AATA 1434
Case: [2024] AATA 1434
Decision Date: 17 May 2024

CaseChat Overview and Summary

This matter concerned an application for a Partner (Temporary) (Class UK) visa by the applicant, who claimed to be the spouse of an Australian citizen sponsor. The Administrative Appeals Tribunal was required to determine whether the applicant and sponsor were in a married relationship that met the criteria set out in the *Migration Regulations 1994* (Cth). A key issue was whether the relationship was genuine and continuing, involving a mutual commitment to a shared life to the exclusion of all others, and whether the parties lived together or not separately and apart on a permanent basis.

The Tribunal was tasked with assessing whether the parties met the requirements of a spouse relationship as defined by section 5F of the *Migration Act 1958* (Cth) and regulation 1.15A of the *Migration Regulations 1994*. This involved considering all circumstances of the relationship, including financial, social, and household aspects, as well as the nature of their commitment to each other. The Tribunal also had to consider evidence of events occurring after the date of application, as such evidence could logically demonstrate the existence or non-existence of the relevant relationship factors at the time of application and decision.

The Tribunal found that the applicant and sponsor were validly married on 20 July 2018, satisfying the requirement for a marriage valid for the purposes of the Act. After considering oral evidence and documentary material, the Tribunal made detailed findings of fact regarding the financial, household, social aspects of the relationship, and the nature of their commitment. The Tribunal was satisfied that the parties had lived together since their marriage, shared household tasks and expenses, provided care for the sponsor's children, represented themselves as a married couple to family and friends, and had a long-term, genuine, and committed relationship.

Consequently, the Tribunal remitted the application for a Partner (Temporary) (Class UK) visa with a direction that the applicant met the criteria for a Subclass 820 (Partner) visa, specifically clauses 820.211(2) and 820.221(1)(a) of Schedule 2 to the *Migration Regulations 1994*.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The Tribunal at hearing also disclosed the gist of the information at hearing which was to the effect that the sponsor had provided different residential addresses to Centrelink to that provided in support of the visa application. The applicant and the sponsor in their evidence addressed those matters, the detail of which is set out in these reasons.CONSIDERATION OF CLAIMS AND EVIDENCEWhether 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 birth. ‘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? If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. The Department file contained a copy of a Notice of Intended Marriage dated 19 June 2018 which references the applicant and sponsor. Also included was a copy of a Marriage Certificate certified by the Western Australian Registrar of Births, Deaths and Marriages. It is dated 14 January 2021 and confirms that the applicant and sponsor were married on 20 July 2018. This evidence is consistent with oral evidence provided at hearing by the applicant and sponsor. The Tribunal finds that the applicant and sponsor were married on 20 July 2018. The Tribunal is satisfied and finds that 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? The Tribunal had the opportunity of taking oral evidence from the applicant and sponsor. This included evidence regarding the development of their relationship, their relationship history, knowledge of each other’s background and family history, financial, social and household aspects of their relationship, and the nature of their commitment to each other. Financial aspects of the relationship

Decision

Reasons for decision

The Tribunal is satisfied that whilst the sponsor spent time in the Port Kennedy property this does not mean he and the applicant were not cohabiting.Are the criteria for a spousal relationship met at the time of application and at the time of decision? The Tribunal makes the following findings of fact:Financial aspects of the relationship In relation to this aspect of the relationship:a)At the time of application and at the time of decision, the applicant and sponsor did not legally own any real estate or other major assets in their joint names.b)At the time of application, the applicant and sponsor operated individual bank accounts and a joint bank account. At the time of decision the applicant and sponsor operate individual bank accounts.c)The applicant at the time of application was studying and has recently completed her studies. The applicant at the time of application and decision is also employed. The sponsor at the time of application and decision is not employed and is in receipt of income support payments.d)Within the context of these financial circumstances, the applicant and sponsor have provided each other with financial resources and have jointly met shared household costs and expenses.Nature of the household The applicant and sponsor, at the time of application and at the time of decision:a)Have lived together since their marriage. Their living arrangements have accommodated the sponsor also spending time with his children. b)Share day-to-day household tasks and activities including cleaning, shopping, home maintenance and gardening.c)Provide care and support to the sponsor’s children.Social aspects of the relationship The applicant and sponsor, at the time of application and at the time of decision:a)Represented themselves to the world at large as a married couple. They are recognised and acknowledged by family and friends as being in a genuine and committed relationship.b)Have planned and undertaken social activities as partners. The nature of their commitment to each other The applicant and sponsor:a)First met in 2016. They were married in July 2018.b)At the time of application and at the time of decision they have provided each other with companionship and support.c)At the time of application and at the time of decision, they have described their relationship as long term, genuine and committed. Other findings of fact In addition, according to documents provided to the Tribunal, the Tribunal is satisfied and finds that:a)The applicant is sponsored by her spouse.b)The sponsor is an Australian citizen by birth.[1]c)The applicant and sponsor are both over the age of 18 and are not related by family.[2]d)At the time of her application the applicant was on a student visa.[3][1] Sponsor’s birth certificate was provided to the Department.[2] Birth certificates were provided to the Department.[3] Notice of grant of bridging visa on the Department’s file confirms that the applicant was on a current student visa which was active. The task for the Tribunal is to consider all relevant circumstances and evidence of the relationship in determining whether, on balance, the requirements that define a genuine and continuing relationship and a mutual commitment to a shared life to the exclusion of all others are met, where the parties are living together or not separately and apart on a permanent basis. In this regard, the Tribunal must also consider relevant evidence of events that have occurred after the date of application. Such evidence is relevant if it tends to logically show the existence or non-existence of factors relevant to the determination.[4][4] Ally v MIAC [2008] FCAFC 49 at [32]–[35]; Jayasinghe v MIMA [2006] FCA 1700 at [35], citing MIEA v Pochi (1980) 4 ALD 139 at [24] per Deane J, which held that evidence of subsequent events may be taken into account if it ‘tends to logically show the existence or non-existence of’ the relationship at that particular time; and see also Bretag v IRT [1991] FCA 582 at [13]–[15].

Ratio Decidendi

Legal Principle Established

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(2) of Schedule 2 to the Migration Regulations 1994 (Cth); and·cl 820.221(1)(a) of Schedule 2 to the Migration Regulations1994 (Cth).Maxina MartellottaMemberATTACHMENT – Extract from Migration Regulations 19941.15A 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).