Orosi (Migration)

[2021] AATA 3767

Orosi (Migration) [2021] AATA 3767 (10 September 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Peter Orosi

CASE NUMBER:  1916909

HOME AFFAIRS REFERENCE(S):          BCC2018/997946

MEMBER:P. Maishman

DATE:10 September 2021

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 Regulations

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

Statement made on 10 September 2021 at 2:33pm

CATCHWORDS
MIGRATION –Partner (Temporary) (Class UK) visa – Subclass 820 – Tribunal received substantially more documentary information – long-term genuine relationship – parties validly married – genuine married relationship –decision under review remitted

LEGISLATION
Migration Act 1958, ss 5F, 65, 360
Migration Regulations 1994, rr 1.03, 1.15, Schedule 2, cls 820.211, 820.221

CASES

Bretag v MILGEA [1991] FCA 582
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 1 March 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. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria.

3. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl 820.211(2)(a) because the delegate was not satisfied there was sufficient evidence to demonstrate the applicant is the spouse of the sponsor.

4. The Tribunal received substantially more documentary information than was contained in the file received from the Department. That information has been forwarded to the Department.

5. In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the visa applicant on the basis of the material before it, pursuant to s 360(2)(a) of the Act.

6. The applicant was represented in relation to the review by his registered migration agent.

7. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The Tribunal had before it a copy of the Department’s file. The applicant has indicated the copy of the Department’s file he received in response to a Freedom of Information request was more comprehensive than that received by the Tribunal.

9. The applicant gave the Tribunal a copy of the delegate’s decision record with his application for review. The Tribunal also received documents including, but not limited to, travel documents, photographs, correspondence between the parties, Centrelink records, statutory declarations from third parties, and statutory declarations from the applicant and sponsor declared on 26 and 27 August 2021 respectively.

10. The applicant and sponsor’s statutory declarations outline the history of their relationship, their financial arrangements, the nature of their household and family life, their social situation, and their commitment to one another. The declarations taken in context with the documentary evidence provided and the statutory declarations of family and friends give a clear and compelling explanation of the nature of the ongoing relationship between the applicant and sponsor. The Tribunal gives these declarations significant weight in assessing whether the applicant and sponsor are, at the time of application and at the time of decision, in a spouse relationship.

11. The issue in the present case is whether the applicant is the spouse of the sponsor.

    Whether the parties are in a spouse or de facto relationship

12. 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.

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 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?

14. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. The Department’s file contains a copy of the applicant and sponsor’s marriage certificate showing they were married in Vancouver on 29 August 2012. There is nothing before the Tribunal that suggests the marriage is not valid. 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. The Tribunal had regard to the reg 1.15A(3) matters.

16. The Tribunal considered the evidence in relation to the financial aspects of the applicant and sponsor’s relationship.

17. The applicant said in his statutory declaration they did not have a significant amount of resources to pool together. They did not make any financially significant purchases and what they did purchase was typically made in either of their names for pragmatic reasons. The applicant declared his wife held an Australian bank account, Australian citizenship and there appeared no real reason for his name to be included for the purchase of their motor vehicle. Similarly the lease was taken out in his wife’s name because it did not occur to him or his wife that not doing so might be taken to demonstrate they were not a genuine couple.

18. The sponsor said in her statutory declaration she declared her relationship with the applicant to Centrelink. The Tribunal received documents confirming the sponsor is declared to be in a partner relationship with the applicant on Centrelink’s records. Their car insurance is in both names as evidenced by a motor vehicle policy schedule showing they have been jointly ensured for motor vehicle usage since November 2015.

19. A letter dated 21 June 2021 from the landlord of the premises rented by the applicant and sponsor confirms they have been tenants at the property for six years and have lived there with their children. Only the sponsor was named on the lease originally, but subsequent agreements are in both their names. Copies of lease agreements confirm the details provided by the landlord.

20. The parties do not claim to have joint ownership of assets or joint liabilities. The Tribunal accepts they have a legal obligation owed to each other to ensure their rent is paid. The Tribunal accepts the parties pool their financial resources and share day-to-day household expenses. The Tribunal finds the financial aspects of the applicant and sponsor’s relationship is indicative of a couple in a married relationship.

21. The Tribunal considered the nature of the applicant and sponsor’s household.

22. The applicant and sponsor are the parents of three children, the oldest of whom was born in 2010 and the youngest born in 2017 as evidenced by the children’s birth certificates. Student enrolment forms and confirmations of details held by the children’s primary school indicate that from at least 2016 both the applicant and sponsor are recorded as the parents and primary contacts for the children and the children are recorded as living with both parents. Correspondence from the school is addressed to both parents at the same address.  

23. The Tribunal finds the applicant and sponsor have joint responsibility for care and support of the children. The applicant and sponsor live together with their children as evidenced by their lease arrangements and their children’s school records. The Tribunal acknowledges the applicant’s declaration that it is confusing to him that two people who live together and have children could be anything but in a partner relationship and sharing household responsibilities.

24. The Tribunal attributes weight to the nature of the applicant and sponsor’s household as indicative of a couple in a genuine married relationship.

25. The Tribunal considered the social aspects of the applicant and sponsor’s relationship.

26. The applicant and sponsor are recognised by their children’s schools as being the children’s parents and living at the same address. The Tribunal received a number of photographs showing the applicant and sponsor together, with their children and in various social situations from January 2010 through to March 2021.

27. The Tribunal received statutory declarations from the sponsor’s father, Anton Janiec, along with letters he had sent his daughter and son-in-law. Mr Janiec declares the applicant married his daughter in 2012. He is grandfather to their children and he has a typical grandparent relationship. He has attended social gatherings with them and before he relocated to Canberra they would come with their children for a swim in his pool. Mr Janiec has observed their relationship for more than 10 years and is of the view that the applicant is married to his daughter and their relationship is genuine and continuing.

28. The applicant’s father, Istvan Orosi, provided a letter dated 20 August 2021 confirming the applicant and sponsor came to live with him in Vancouver in 2011 and he attended their wedding ceremony. He stays in contact with them as a family since they left Canada and when his son returned to Canada in 2019 he observed his son stayed in contact with his wife regularly. Mr Orosi endorses his son’s relationship with the sponsor is true and genuine.

29. The Tribunal also had regard to separate statutory declarations from Ian Davey and Mervyn Dearlove who are neighbours of the applicant and sponsor. Both declare the applicant and sponsor moved to the address around five years ago, they see the applicant and sponsor several times a week, they believe the applicant and sponsor to be a couple and observe their affection for each other and their children.

30. The Tribunal is satisfied on the evidence the applicant and sponsor represent themselves to other people as being married to each other, their friends, acquaintances and family consider they are a married couple, and they undertake joint social activities as evidenced by the photographs received by the Tribunal.

31. The social aspects of the applicant and sponsor’s relationship are indicative of a couple in a genuine and continuing married relationship.

32. The Tribunal considered the nature of the applicant and sponsor’s commitment to each other.

33. The Tribunal accepts the applicant and sponsor have met and been in a relationship from 2009 and married in 2012. They have lived together at least since they were married and have lived in various countries. They settled back in Australia at the end of 2015. They have three children together. They provide significant companionship and emotional support for each other in their extended family matters as evidenced in the sponsor’s statutory declaration. They have been married for nearly 10 years and the Tribunal accepts they see their relationship as long term.

34. The Tribunal finds the nature of the applicant and sponsor’s commitment to each other is indicative of a couple in a genuine and continuing spouse relationship.

35. Having considered the matters contained in reg 1.15A(3) individually and holistically the Tribunal finds that the applicant and sponsor have a mutual commitment to a shared life to the exclusion of others. Their relationship is genuine and continuing and they live together.

36. The evidence before the Tribunal in relation to the time of decision findings is strong and reliable. The Tribunal is satisfied it can apply the principles in Bretag v MILGEA [1991] FCA 582, and apply the facts of the subsequent history of the relationship so long as they tend to logically show the existence or non-existence of facts relevant to my time of application findings. I am satisfied, by assessing the evidence before me, and applying the Bretag principle, that the parties meet the requirements for a spousal relationship within the meaning of s 5F(2)(b)–(d), at the time of application and at the time of decision.

37. On the basis of the above the Tribunal is satisfied that the requirements of s 5F(2) are met at the time the visa application was made and the time of this decision.

38. There is no evidence that the sponsor is prohibited by cl 820.211(2B) from being a sponsoring partner and the applicant meets cl 820.211(2)(a).

39. The sponsor was nominated on the visa application and is the spouse of the applicant. The sponsor has subsequently completed the requisite sponsorship form, contained on the Department’s file, and the Tribunal accepts that the applicant is sponsored and so meets cl 820.211(2)(c).

40. The applicant was the holder of a substantive visa (SC 651), cl 820.211(2)(d) does not apply.

41. The applicant meets the requirements of cl 820.211(2) at the time of application and continues to meet those requirements at the time of this decision as required by cl 820.221(1)(a).

42. 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

43. 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 Regulations

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

    P. Maishman
    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).