Orya (Migration)

[2020] AATA 3238

Orya (Migration) [2020] AATA 3238 (20 May 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Masood Orya

CASE NUMBER:  1732442

HOME AFFAIRS REFERENCE(S):          BCC2014/1608979

MEMBER:Russell Matheson

DATE:20 May 2020

PLACE OF DECISION:  Sydney

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; and

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

Statement made on 20 May 2020 at 9:32am

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – genuine spousal relationship – financial aspects – nature of household – social aspects – nature of commitment – decision under review remitted

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

CASES
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 Immigration and Border Protection to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant is a 33-year-old male national of Canada. He applied for the visa on 30 June 2014 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 (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 because the delegate was not satisfied the applicant was the spouse of the sponsor. The applicant seeks review of the delegate’s decision.

4. The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone.  The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

5. The applicant appeared before the Tribunal on 14 May 2020 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is whether the applicant is the spouse of the sponsor as defined in s.5F of the Act.

8. The Tribunal has before it the applicant’s file from the Department of Immigration (the Department); its own file; and a copy of the Department’s decision provided by the applicant to the Tribunal.

9. The evidence the parties provided at the Tribunal hearing is recorded throughout this decision record.

   Whether the parties are in a spouse or de facto relationship

10. 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.

11. ‘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. Each of the specific matters contained in r.1.15A(3) are effectively questions which must be answered: He v MIBP [2017] FCAFC 206.

    Are the parties validly married?

12. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. The applicant provided a copy of the marriage certificate registered under the Marriage Act 1961 indicating the applicant and sponsor were married at the Registry of Births, Deaths and Marriages Parramatta, NSW, on 30 June 2014. There is no evidence before the Tribunal to indicate that 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).

13. After careful consideration of all of the evidence before it, the Tribunal has reached the conclusion that it is satisfied the applicant is the spouse of the sponsor within the meaning of s.5F of the Act. Below, the Tribunal sets out its consideration of the evidence under the relevant aspects of matters it must take into consideration under r.1.15A(3), and the reasons for its decision.

14. The Tribunal had the benefit of the applicant’s and the sponsor’s oral evidence at the hearing and found their evidence to be detailed, consistent and overall, credible. The Tribunal gave all the evidence provided by the parties at the Tribunal hearing and evidence provided by the applicant to the Department and the Tribunal file due regard. The applicant provided a significant amount of additional documentary and photographic evidence to the Tribunal.

15. The Tribunal acknowledges the delegate’s concerns set out in the primary decision record. The Tribunal discussed these with the applicant and the sponsor in the course of the hearing and the Tribunal is satisfied that the parties were credible witnesses. 

    Are the other requirements for a spouse relationship met?

    Financial aspects

16. The Tribunal has considered the financial aspects of the relationship including any joint ownership of real estate or major assets, any joint liabilities, the extent of any pooling or sharing of financial resources, especially in relation to major financial commitments, whether any person in the relationship owes any legal obligation in respect of the other and the basis of any sharing of daily household expenses.

17. The applicant and sponsor provided documentary evidence of the financial aspects of the relationship that include:

    ·     Email dated 14 February from the applicant to the Tribunal stating the parties had opened a bank account with Islamic Co-operative;

    ·     A letter dated 23 January 2020 from Islamic Co-operative Finance Australia Ltd confirming opening of bank account;

    ·     A letter from Commonwealth Bank dated 21 April 2020 confirming the parties opened a joint account on 14 December 2017;

    ·     Commonwealth Bank statement in joint names for the period 2 May 2019 to 21 April 2020;

    ·     Commonwealth Bank statements in the applicant’s name for the periods 1 January 2016 to 6 December 2017, 17 December 2015 to 7 December 2016 and 20 May 2018 to 22 March 2020;

    ·     Compulsory third-party insurance receipt;

    ·     Receipts from Curzon Hall Navarra Venues for payment of wedding reception;

    ·     Origin electricity bills in joint names; and

    ·     Energy Australia gas bills in joint names.

18. The applicant and sponsor gave evidence that they have their own personal accounts and joint accounts with the Commonwealth Bank Australia (CBA) and the Islamic Co-operative Bank. The parties stated that they deposit their wages into their personal accounts and transfer money into the joint CBA account to pay the rent. The applicant pays all the household bills from his personal account. The sponsor gave evidence that she works as a primary school teacher and uses her personal account as a savings account until it reaches a certain amount ($40,000 to $50,000) and then deposits a lump sum into the joint account for the parties’ long-term goal of purchasing their own home. The parties currently have over $150,000 in the joint account. The applicant also told the Tribunal that he paid for the couples wedding ceremony held in July 2015 and produced receipts totalling $17,250. The sponsor gave evidence that she was supported financially by the applicant when she was studying at University of Western Sydney (UWS) to become a teacher. The tribunal accepts the parties are prepared to share their financial resources.  

19. The parties had a sound knowledge and presented detailed and consistent evidence of their financial affairs, including individual income, bank accounts, daily living expenses, rental payments, payment of utility bills and future financial plans and commitments.

20. The parties gave detailed and consistent evidence in relation to the financial aspects of the relationship. The parties’ evidence is that they have no joint liabilities and no major assets such as property together but have significant savings in the joint account for a deposit on a home. There is limited evidence before the Tribunal of pooling or sharing of financial resources or any ongoing financial obligations. There is no evidence before the Tribunal that one person in the relationship owes any legal obligation in respect of the other. The Tribunal accepts that the parties are prepared to share their financial resources and any ongoing or future financial responsibilities.

21. The Tribunal places some positive weight on this aspect of the relationship.

    Nature of the household

22. The Tribunal has considered the nature of the household, including any joint responsibility for the care and support of children, the living arrangements and daily routine of the parties, and the sharing of the responsibility for housework, to form an opinion as to whether the parties are living together and not living separately and apart on a permanent basis.

23. The parties gave consistent and detailed evidence of cohabiting at their current address at Mount Druitt. The parties gave evidence that they are currently renting and living in a unit at Mount Druitt. They provided detailed and consistent evidence of their personal history, living arrangements, household responsibilities, household purchases, daily routine, employment and work hours.  The parties provided a significant amount of documentary evidence such as utility bills, tenancy agreement, phone bills, household bills and other correspondence addressed to them individually and jointly at their current address confirming that they are cohabiting.  The Tribunal found the parties’ oral evidence and the documentary evidence persuasive. The parties stated that they have informed government authorities such as the Australian Taxation Office they are in a spousal relationship.

24. The Tribunal accepts that the parties live together and they have established a joint household and share the responsibility of the housework. There are no children from the relationship.

    Social aspects

25. The Tribunal considered the social aspects of the relationship, including whether the parties represent themselves to other people as being married to each other, the opinions of friends and acquaintances about the nature of the relationship, and any basis on which the parties plan and undertake social activities.

26. The parties provided a significant amount of documentary and photographic evidence of their social activities together. They provided documentary and photographic evidence of travelling to the Gold Coast for their honeymoon and photographic evidence of other interstate travel, their wedding ceremony and dining out with family and friends. They provided evidence that they are socially recognised as husband and wife and engage frequently with family, friends and work colleagues presenting themselves in a committed spousal relationship. The parties further stated that they planning to travel to Canada to see where the applicant grew up and visit the applicant’s family and friends. The Tribunal accepts that the parties’ relationship is supported by their families.   

27. The Tribunal accepts that the relationship is socially recognised by family and friends and they represent themselves to other people as being married to each other. The Tribunal accepts that the parties plan and undertake joint social activities together. There are limited statements from third parties who express their view that the relationship is a genuine one.

28. The Tribunal places some positive weight on the social aspects of the relationship.

    Commitment

29. The Tribunal has considered the nature of the parties’ commitment to each other, including the duration of the relationship, the length of time the parties have lived together, the degree of companionship and emotional support they provide each other and whether the parties view the relationship as a long-term one.

30. The parties claim to have first met at the home of the sponsor’s uncle in July 2013 with their relationship developing over the ensuing months and they entered a committed relationship in April 2014. They were married in June 2014 and held a wedding ceremony in July 2015. The applicant provided a copy of the couple’s marriage certificate. The Tribunal accepts the parties are lawfully married. To date, the parties have been in a relationship for a period exceeding five years.

31. The parties provided strong evidence of caring and supporting each other during highly emotional times and during family tragedies and they also expressed their love of each other. The sponsor gave evidence that the applicant supported her living outside the cultural norm of an Afghan woman (home duties) so she could achieve her educational dream of becoming a teacher. The parties stated that their relationship was long-term, and they have planned their future together and have saved a significant amount of money for a deposit on their own home. The parties have made binding agreements making each other the beneficiaries of their superannuation schemes. The parties stated that their relationship was long-term, and they have planned their future together discussing openly from the time they first met. The applicant gave evidence that he has plans to study and obtain a degree in business management with a view to better financial security for the couple. The Tribunal found the applicant and sponsor to be genuine, credible and persuasive.

32. The Tribunal is satisfied that the parties see their relationship as stable, mutually supportive and a long-term one. The Tribunal considers their evidence about their commitment to each other plausible, persuasive and genuine.

33. The Tribunal notes that the applicant and the sponsor were able to articulate the reasons for their decision to form a relationship and spoke of their common interests, expectations and future plans.

34. The Tribunal is satisfied the parties provide each other with a strong degree of companionship and emotional support that is commensurate with a couple having a commitment to a shared life together. The Tribunal is satisfied the couple view their relationship as a long-term one.

    Findings

35. The Tribunal is satisfied, having had regard to the totality of the circumstances and the evidence provided at the hearing, that the applicant and the sponsor have a mutual commitment to a shared life to the exclusion of all others. The Tribunal is satisfied their relationship is genuine and continuing. The Tribunal is satisfied they live together and not separately and apart on a permanent basis. Having considered all the evidence and the circumstances of the relationship as detailed above, the Tribunal is satisfied the parties were in a spousal relationship at the time of application.

36. The Tribunal is satisfied that the sponsor is not prohibited from being a sponsoring partner and continues to sponsor the applicant. The Tribunal is satisfied that the sponsor, at the time of the visa application and decision, was an Australian citizen who had turned 18.

37. The applicant’s movement records provide evidence of him having been the holder of a Working Holiday (Subclass 417) visa at the time of application that was valid until 9 July 2014. He held this substantive visa upon applying for the Partner (Temporary) (Class UK) Subclass 820 visa on 30 June 2014. As the applicant held a substantive visa at the time of application, further requirements in cl.820.211(2)(d) need not be met.

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

39. Therefore the applicant meets cl.820.211(2) and cl.820.221(1)(a).

40. Given the findings above, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for a Subclass 820 visa.

    DECISION

41. 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; and

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

    Russell Matheson
    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).