Parinis (Migration)

[2024] AATA 3405

Parinis (Migration) [2024] AATA 3405 (6 May 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Anitah Binti Parinis

REPRESENTATIVE:  Mr Dildeep Singh (MARN: 1281067)

CASE NUMBER:  2117856

HOME AFFAIRS REFERENCE:               BCC2019/6511535

MEMBER:Antonio Dronjic

DATE:6 May 2024

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) visa:

· cl 820.211(2)(a) of Schedule 2 to the Regulations.

Statement made on 06 May 2024 at 5:25pm

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – genuine and continuing relationship – validly married – financial, household and social aspects of relationship and nature of commitment – length of relationship – one of applicant’s children living with parties, with intention for sponsor to adopt – consistent oral evidence and supporting statements – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5F(2), 65
Migration Regulations 1994 (Cth), r 1.15A(3), Schedule 2, cl 820.211(2)(a)

CASES
He v MIBP [2017] FCAFC 206
MIEA v Pochi (1980) 4 ALD 139

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 13 December 2019 based on 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).

3. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl 820.211. The delegate assessed the application pursuant to cl 820.211(2), finding it to be the only subclause relevant to the applicant’s circumstances, and found that the information and evidence submitted in support of the application were not sufficient to demonstrate that, at the time of application on 13 December 2019, the applicant met cl 820.211(2)(a).

4. On 29 November 2021, the applicant applied to the Tribunal for review of the delegate’s decision and with the application submitted a copy of the primary decision record.

5. Between 1 February 2023 and 31 May 2023, the Tribunal received several batches of documentary evidence from the applicant’s representative. The list of documents submitted is attached to this decision record as Attachment A.

6. Between16 April 2024 and 30 April 2024, the Tribunal received several batches of documentary evidence from the applicant’s representative. The list of documents submitted is attached to this decision record as Attachment B.

7. On 30 April 2024, the Tribunal received documentary evidence from the applicant’s representative. The list of documents submitted is attached to this decision record as Attachment C.

8. The applicant appeared before the Tribunal on 23 April 2024 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s sponsor, Mr Steven John Holland. The Tribunal hearing was conducted with the assistance of an interpreter in the Malay and English languages.

9. The applicant was represented in relation to the review. The representative attended the Tribunal hearing.

10. The applicant is 45 years of age and a citizen of Malaysia. She has 3 daughters. Cheareen Parinis and Cheanny Parinis are twins born in August 2002 and Cherry Parinis, currently living with the applicant and her sponsor in Australia, was born in January 2014.

11. Cheanny is currently studying at ‘city university’ and according to the applicant’s evidence living in a hostel. She could not recollect the name of the city where her daughter is undertaking studies. Her daughter Cheareen is living at the applicant’s house located in the town of Ranau, Sabah in Malaysia and is working at ‘a clinic’. Despite claiming to have daily contact with her daughters, the applicant was unable to recall the name of this clinic.

12. The applicant stated that, whilst living in Korea, she had a relationship with Mr Hwan, who is the biological father of her twin daughters. This relationship ended before she gave birth to her twin daughters and the applicant has not had any contact with Mr Hwan since that time. She stated that she left this relationship because Mr Hwan was an abusive and violent person.

13. In her statutory declaration of 27 April 2024, the applicant declared that she was married to Mr Liew, who was working as a contractor in her shop in Malaysia. One week after marriage, the applicant applied for divorce. She claims that she was abused by Mr Liew. It took 2 years to finalise the divorce proceedings.

14. The applicant had another relationship in 2013 with Mr Wong, who is the biological father of her daughter Cherry. This relationship lasted 12 months. According to her oral evidence, Mr Wong is aware that he fathered a child in 2014. The applicant stated that she has no contact with Mr Wong and reiterated that she has the sole custody of her daughter Cherry. She added that she did not name Mr Wong as the father on Cherry’s birth certificate because Cherry was not born out of a legitimate marriage.

15. When questioned, the applicant stated that she told her husband Steven about her past relationships.

16. The applicant’s parents, 2 brothers and 3 sisters are all living in Malaysia. She told her parents and siblings of her marriage and her relationship with Steven. In her hometown, she owns a house and land. She operated a beauty and massage parlour business until 2015. In 2005 she bought her house in Lok Kawi, Papar, Sabah.

17. The applicant first came to Australia in November 2017 as a holder of a visitor visa. She came with a group of people from Malaysia on a promise that she will earn $3,000 per week working at a farm in Australia. Upon arrival, she was taken by the person who organised her travel to Australia to Robinvale, Victoria where she remained living and working at a farm for the next 2 months. The applicant claims that she does not remember the name of the person who organised her travel to Australia. 

18. As she was no longer able to work at a farm, the applicant wanted to leave Robinvale. To get her passport back, she had to pay $500 to the person who organised her travel to Australia. Together with a friend, Vicky, she relocated to Mildura in December 2017 and started working at a local massage parlour. She continued to work there for the next 2 months.

19. The applicant claims that the person who organised her travel to Australia applied on her behalf for a protection visa in February 2018. She further claims that, at the time, she had no knowledge of the protection claims and believed that the application was for a working permit.

20. The Tribunal noted that the protection visa application was refused by the Department in December 2018 and that the applicant applied to this Tribunal on 21 December 2018 for review of the Department’s decision. The Tribunal further noted that the applicant withdrew the review application some 10 days prior to this hearing.

21. The applicant stated that she lodged a review application to the Tribunal related to the protection visa decision and conceded this to be a mistake. She confirmed that she withdrew that application on 12 April 2024. She indicated that her husband Steven knows all about the protection visa application.

22. After relocating to Mildura, the applicant created an online profile on the ‘Plenty of Fish’ dating site. She claims that Steven initiated the contact. He knew that she was working at a massage parlour in Mildura. They met in person in February 2018. She moved into Steven’s house in Red Cliffs, Victoria in March 2018. In September the same year, they were engaged, and they married on 13 April 2019. Twenty guests attended their wedding, including her mother and 2 of the sponsor’s 4 children. The reception was held at their home.

23. In 2021, the applicant started working as a full-time machine operator. Her annual salary is between $40,000 and $50,000 and she has no other source of income. She provides financial support to her daughters in Malaysia. She gave evidence that Steven works as a forklift driver and earns approximately $70,000 per year. He owns the house they live in. She does not make any financial contributions towards the payment of utility accounts or the mortgage. She bought some furniture and purchases food daily. She claims that her husband insists on her saving money and helping her daughters in Malaysia.

24. Steven bought her a car. He named her to be a beneficiary on his superannuation account. They operated a joint bank account with Westpac bank but decided to close it last year as they did not use it and had to pay administration fees for it. The applicant has an account with the National Australia Bank and she undertook to provide statements from this account for the period of the past 12 months.  

25. Steven has an account with Bendigo Bank and has given the applicant authority to use this account. Although she has her own Bendigo Bank card, she does not use it.

26. In December 2019 she travelled to Malaysia to see her family. Steven did not travel with her. He has never travelled overseas and does not have a passport. They have limited social interaction and not many friends at Red Cliffs. They often visit their next-door neighbour, Ms Lorraine Giannelli, who is also Steven’s ex-sister-in-law.

27. In her evidence, the applicant demonstrated she has good knowledge relating to Steven’s previous marriages and family composition. Steven has 2 previous marriages and 2 children from each of those marriages. He does not keep in touch with his wife or children from his second marriage. Steven is not a religious person, and she occasionally goes to the local church.

28. Her daughter Cherry arrived in Australia in February 2023 as a holder of a visitor visa and has been living with the applicant and her husband since then. She was subsequently granted a student visa that remains valid until March 2026. Cherry is currently attending school. Last year, Steven took a loan from the bank to pay school fees for Cherry. This year, the applicant paid her daughter’s school fees.

29. When asked about future plans, the applicant stated that she would like for her and Steven to retire in Malaysia where she still owns land and house.

30. The sponsor, Mr Steven Holland, is 60 years of age and an Australian citizen. He has 2 previous marriages and 4 children from those marriages. He is and has been living at Red Cliffs since 2012. He works as a forklift driver, does not have a passport and has never travelled overseas.

31. He registered his online profile on the dating site ‘Plenty of Fish’ in 2016. He confirmed that in February 2018 he initiated contact with the applicant.

32. Overall, the parties gave consistent oral evidence. There were minor inconsistencies related to the sponsor’s knowledge of the applicant’s immigration history and the names of her previous partners. Mr Holland exhibited good knowledge of the applicant’s family composition.

33. He stated that he intends to add the applicant’s name on the property title once the subdivision is completed. Currently the title is jointly held by him and his ex-sister-in-law, Ms Giannelli. He confirmed in his evidence that he insists on paying the mortgage by himself as he wants his wife to save money and provide financial help to her daughters who are living in Malaysia.

34. He stated that he intends to legally adopt the applicant’s daughter Cherry and that he made relevant enquiries as to how the process works. This claim was confirmed by the applicant.

35. He conceded in his evidence that he and his wife neither jointly own major assets nor do they have major joint liabilities. Both pay for food and petrol as required. The applicant purchased some furniture. Despite living together since March 2018, they have never been on holidays together.

36. Steven gave evidence that he is not a social person and that he and his wife represent themselves as a married couple, but do not socialise much. They occasionally dine out or go shopping in Mildura. Their closest relationship is with their neighbour Ms Giannelli.  

37. When questioned as to what will happen if the applicant is not granted the visa, Steven stated that he would sell his home and move with his wife to Malaysia.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

39. The primary criteria to be satisfied at the time of application are set out in cl 820.211(1). This requires that the applicant is not the holder of a Subclass 771 (Transit) visa and that she meets one of the alternative requirements set out in cl 820.211(2), (5), (6), (7), (8) or (9).

40. The subclause relevant to the applicant’s circumstances is cl 820.211(2). Accordingly, in this case, the issue for determination is whether, at the time of application, the applicant and the sponsor were spouses for the purposes of the Act.

41. According to the primary decision record, despite acknowledging that the applicant did not hold a substantive visa at the time of visa application, the delegate did not assess whether the applicant meets cl 820.211(2)(d) (that is, whether she meets relevant Schedule 3 criteria). The application was decided based on the assessment of cl 820.211(2)(a) only. The Tribunal will confine its findings to the same issue.

42. Evidence of events subsequent to the visa application is relevant if it ‘tends logically to show the existence or non-existence of facts relevant to the issue to be determined’: see Minister for Immigration and Ethnic Affairs v Pochi (1980) 4 ALD 139 at 160 per Deane J. In making findings about the status of the parties’ relationship at the time of application, the Tribunal has also had regard to evidence of events subsequent to the date of the visa application.

    Whether the parties are in a spouse or de facto relationship

43. Clause 820.211(2)(a) requires that at the time the visa application was made, 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.

44. ‘Spouse’ is defined in s 5F of the Act and provides that a person is the spouse of another where the 2 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).

45. 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?

46. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship.

47. On 13 April 2019, the applicant and the sponsor married each other in Red Cliffs, Victoria. A copy of the decorative Certificate of Marriage is on the Department’s file. 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 financial aspects of the relationship 

48. The parties conceded in their oral evidence that they do not jointly own real estate or other major assets. The applicant makes no financial contributions towards the payment of mortgage or utility accounts. The Tribunal accepts that the applicant purchased some furniture items and pays for food and petrol as required. The Tribunal accepts that in that respect, the parties share some daily household expenses.

49. The parties had a joint bank account with Westpac bank but decided to close it as they were not using it and still had to pay the administrative fees. The applicant deposits her wages into her National Australia Bank account. The sponsor authorised the applicant to use his Bendigo Bank account. He nominated the applicant as a beneficiary on his superannuation account. The applicant nominated her daughter Cherry and Steven as her beneficiaries. Last year, the sponsor took a bank loan to pay for the school fees for the applicant’s daughter Cherry. In 2024, the applicant paid her daughter’s school fees.

50. The sponsor indicated in his evidence that he intends to add the applicant’s name to the property title once the subdivision is completed. When asked about future plans, the applicant stated that she would like for her and Steven to retire in Malaysia where she still owns land and a house.

51. The Tribunal gives some weight to the evidence of the financial aspects of the relationship and considers that the evidence points to the parties being in a spousal relationship.

    The nature of the household 

52. Any joint responsibility for the care and support of children, the living arrangements of the persons and any sharing of the responsibility for housework are relevant matters when considering the nature of the household.

53. The applicant’s youngest daughter Cherry is and has been living with the applicant and her sponsor since February 2023. The sponsor indicated that he is planning to legally adopt the applicant’s daughter and the applicant stated that she would like him to do that.

54. The Tribunal accepts that both the applicant and her sponsor are providing care and support for the applicant’s daughter Cherry, who is 10 years of age and is attending school in Australia.

55. With respect to the living arrangements of the persons, the parties claim, and the Tribunal accepts, that they have been living together since March 2018 – more than 6 years. They share the responsibility for the housework. They sleep in the same room and use the same bathroom. In her statutory declaration, the applicant stated that she does most of the cooking and cleaning at home.

56. In this review, the applicant submitted copies of both her and the sponsor’s current driver’s licences showing their address as the address in Red Cliffs, Victoria. She also submitted other correspondence addressed to the same Red Cliffs address (invoices, vehicle registration documents and ATO assessment notices).

57. The Tribunal considers that the evidence of the nature of the household is suggestive of a spousal relationship and accordingly the Tribunal gives weight to it.

    The social aspects of the relationship

58. With the visa application, the applicant has provided statements from Mr Dale Robert Barclay, the Church Minister who conducted their wedding ceremony, and Ms Giannelli, the sponsor’s neighbour and ex-sister-in-law.

59. In this review, the parties provided additional documentary evidence relevant to the consideration of the social aspects of the relationship. The applicant submitted many photographs depicting the applicant and her sponsor in various social settings. They provided evidence that in dealings with the ATO, they declared each other to be spouses.

60. After the hearing, the parties submitted additional statements from friends and relatives including the statements from the applicant’s mother, 2 sisters and 2 daughters (Cheareen and Cheanny), the sponsor’s daughter Natasha and updated statements from their neighbour Ms Giannelli.

61. The Tribunal is satisfied, based on the statutory declarations, statements and photographs provided, that the applicant and sponsor represent themselves to other people as being married to each other. The Tribunal is further satisfied that the opinion of the persons’ friends and relatives about the nature of their relationship is that it is genuine, committed, supportive and continuing. The Tribunal is satisfied that the applicant and sponsor plan and undertake joint social activities.

1. The evidence of the social aspects of the relationship indicates that the parties have a mutual commitment to a shared life as a married couple to the exclusion of all others, that the relationship is genuine and continuing and that they live together, and not separately and apart, on a permanent basis, at both the time of application and at the time of decision.

   The nature of the persons’ commitment to each other

2. The Tribunal accepts the applicant’s and the sponsor’s evidence about the inception and development of their relationship. The Tribunal acknowledges that the applicant had a troublesome past. She had several failed and violent relationships. She gave birth to 3 daughters and raised them without the help of their fathers. She claims that the person who organised her travel to Australia applied on her behalf but without her knowledge or understanding for a protection visa. She worked at a farm in Robinvale and a massage parlour in Mildura. She was determined to secure a better life in Australia for herself and her daughters.

3. The sponsor went through 2 failed marriages. The Tribunal accepts his statement that he developed a strong bond with the applicant who brought peace and consistency into his life.

4. Based on the evidence before it, including the statements declared in their statutory declarations of 27 April 2024 and the parties’ oral evidence, the Tribunal is satisfied that both parties are committed to their relationship and that they provide companionship and emotional support to each other and see their relationship as a long-term relationship.

5. The Tribunal gives weight to the evidence about the duration of their committed relationship throughout the years, specifically that, at the time of application on 13 December 2019, they had lived together for more than 18 months and had been married for 8 months, and at the time of this decision, they have been living together for more than 6 years and have been married for more than 5 years.

6. Accordingly, the Tribunal is satisfied, considering all the evidence cumulatively, that the applicant and the sponsor have demonstrated, and continue to demonstrate, a level of commitment to one another and to their spousal relationship as contemplated in the Act and Regulations.

7. The Tribunal has considered all the circumstances of the relationship as set out in reg 1.15A(3) and is satisfied that the applicant and sponsor have a mutual commitment to a shared life as a married couple to the exclusion of all others, that the relationship between them is genuine and continuing and that they live together, and do not live separately and apart on a permanent basis. On the basis of the above the Tribunal is satisfied that the requirements of s 5F(2) were met at the time of the visa application.

8. A copy of the sponsor’s birth certificate is on the Department’s file. From the evidence before it, the Tribunal is satisfied that the sponsor is an Australian citizen. Accordingly, the Tribunal finds that cl 820.211(2)(a)(i) is met.

9. There is no information before the Tribunal to suggest that the circumstances outlined in cl 820.211(2B) apply so the Tribunal finds that the sponsor is not prohibited by that subclause from being a sponsoring partner. Accordingly, the Tribunal finds that cl 820.211(2)(a)(ii) is met. Therefore, the applicant meets cl 820.211(2)(a).

10. 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

11. 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)(a) of Schedule 2 to the Regulations.

    Antonio Dronjic
    Member

    
    

    Attachment A: Document List

    ·Submission from Milestone Education and Immigration Services dated 19 May 2023.

    ·Anitah Parinis passport issued 18 October 2022.

    ·Anitah Parinis Australian driver’s licence.

    ·Steven Holland Australian driver’s licence.

    ·Victorian Marriage certificate registered 14 June 2019. 

    ·Department of Home Affairs Form 40SP dated 2 October 2019.

    ·Superannuation account activity for Steven Holland dated 2011 to 2022.

    ·Department of Home Affairs Form 47SP unsigned and undated.

    ·Department of Home Affairs Form 80 – Anitah dated 22 November 2022.

    ·Department of Home Affairs Form 80 – Steven dated 27 December 2022.

    ·Form 888 – Dale Robert Barclay dated 12 December 2019.

    ·Form 888 – Lorraine Margaret Giannelli dated 13 December 2019.

    ·Australian police clearance for Anitah Parinis dated 4 January 2023.

    ·Australian police clearance for Steven Holland dated 4 January 2023.

    ·Rates notice dated 15 July 2022.

    ·Recent photographs undated.

    ·Sponsor’s Medicare card.

    ·Sponsor’s birth certificate dated 17 August 2001.

    ·Wedding certificate dated 13 April 2019.

    ·Sponsor’s previous divorce certificate dated 1 April 2019.

    ·Wedding photographs undated.

    ·Chat and call history undated.

    ·Joint bank account dated 6 September 2022–5 March 2023.

    ·Sponsor work safe licence issued 26 March 2019.

    ·Applicant’s address evidence dated 8 May 2023.

    Attachment B: Document List

    ·2023 notice of assessment for Anitah Parinis (Holland). 

    ·2022 Individual tax return for Steven Holland.

    ·Centrelink notices undated. 

    ·Centrelink proof of relationship undated.

    ·Statutory declaration and photo identification from Lorraine Margaret Giannelli dated 11 April 2024.

    ·Statutory declaration and photo identification from Natasha Lee Constance dated 12 April 2024.

    ·Bendigo Bank statement dated 6 March 2023 to 5 September 2023.

    Attachment C: Document List

    ·Letter of referral from Law Institute Victoria dated 17 March 2023.

    ·Statutory declaration from Anitah Binti Parinis dated 27 April 2024.

    ·Statutory declaration from Steven J Holland dated 27 April 2024.

    ·Letter of support from Sabit Binti Katal (Anitah’s mother) dated 24 April 2024.

    ·Letter of support from Diana (Anitah’s sister) dated 24 April 2024.

    ·Anitah Parinis Australian Super beneficiaries page dated 23 April 2024.

    ·Steven Holland super beneficiaries undated.

    ·Steven Holland Bendigo Bank statements dated 6 March 2023 to 5 September 2023 and 6 September 2023 to 5 March 2024.

    ·Letter of support from Cheareen Parinis dated 25 April 2024.

    ·Anitah Parinis National Australia Bank statements dated 27 July 2023 to 25 January 2024 and 26 December 2023 to 23 April 2024.

    ·Form 888 from Cheanny Parinis dated 29 April 2024.

    ·Form 888 from Daiwee Parinis dated 29 April 2024.

    ·Line of credit statement for Steven Holland dated 15 February 2023 to 16 February 2023.

    ATTACHMENT D – 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).