Pastrikou (Migration)

Pastrikou (Migration) [2019] AATA 3444 (1 August 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Ms Eleni Pastrikou
Miss Paraskevi Skylla
CASE NUMBER:  1814961
HOME AFFAIRS REFERENCE(S):          BCC2016/3762073
MEMBER:Steven Griffiths
DATE:1 August 2019
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal remits the applications for Partner (Temporary) (Class UK) visas, with the direction that the first named 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 01 August 2019 at 3:54pm

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) – Subclass 820 (Spouse) – genuine spousal relationship – photographic and documented evidence provided – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5F, 65
Migration Regulations 1994 (Cth), Schedule 2 cls 820.211, 820.221, r 1.15A(3)
CASES
He v MIBP [2017] FCAFC 206

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 applicants Partner (Temporary) (Class UK) visas under s.65 of the Migration Act 1958 (the Act).
The first named applicant, Ms. Eleni Pastrikou, applied for the visa on 9 November 2016 on the basis of her relationship with her sponsor, Mr. Theodoros Leotsakos. 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. Miss Paraskevi Skylla, the daughter of the applicant, as an applicant for the visa need satisfy only the secondary criteria.
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 visa applicant was the spouse, as defined in s.5F of the Act, of the sponsor.
The applicants were represented by their registered migration agent.
For the following reasons, the Tribunal has concluded on the basis of documented information reviewed that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The Tribunal has taken into consideration all the evidence in the Department of Immigration file and Tribunal file, including additional information provided to the Tribunal
ISSUE
The issue in the present case is whether the visa applicant is the spouse, as defined in s.5F of the Act, of the sponsor.
BACKGROUND OF THE EVIDENCE
Ms. Pastrikou was born at Kalymnos, Greece, in 1980. Her parents, born 1952 & 1956, and two sisters, born 1978 & 1986, live in Greece. She married Antonios Skyllas, born 1982, in August 2011 and divorced on 7 May 2014, at which time he was living in the United States of America. Her daughter Paraskevi Skylla, was born on 17 July 2013. She arrived in Australia, with her daughter, on 12 August 2016.
Mr. Leotsakos was born in Kalymnos, Greece, in 1983. His father is deceased and his mother, born 1959, and two brothers and sister, born 1979, 1983 and 1984, have lived in Australia since 1993 and became Australian citizens on 5 May 1995.
INFORMATION TO THE TRIBUNAL
Since the Department made a decision the sponsor has provided further information to the Tribunal including:-
Secondary visa applicant medical assessment dated 17/4/18
Energy retailer accounts of 30/3/17 & 9/5/17 in joint names
Telstra account of March & April 2017 in sponsor name only
Delivery notice from Australia Post to visa applicant at joint address
Baby birth congratulations letters
Secondary visa applicant school confirmation of registration and attendance dated 30/5/18
Birth Certificate dated 11/5/18 for Katerina LEOTSAKOS, daughter of sponsor and visa applicant
Medicare card listing visa applicant and secondary applicant dated 26/6/18
Greece Marriage Certificate dated 4/8/16 of the sponsor and visa applicant
Bank SA joint account dated 26/5/18
Sponsor and visa applicant membership form of Greek Orthodox Community of North Australia Inc.
Top End Medical Centre letter dated 28/5/18 confirming birth of daughter
Northern Territory Government, Registrar of Motor Vehicles, Evidence of Age statement dated 3/8/18 for visa applicant
19 photos from parties wedding in Greece, children party, family and May 2018 baby
Visa applicant Obstetric ultrasound scan confirming pregnancy and suggestion of due date on 15/7/19
Visa applicant blood test results of October & December 2018
Greek bank joint account dated 25/7/19 including 12 transactions
Greek telephone contract in name of sponsor dated 18/7/19
Greek Government A21 Application for entitlement to child allowance. Not dated
Greek 2017 year taxpayer information of visa applicant
Greek Certificate of Family Status, listing visa applicant, sponsor, secondary applicant, child born 11/5/18 and child born 10/7/19
Is the Sponsor an Australian citizen?
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. The Tribunal was provided with documented evidence, which it accepts, of the sponsor becoming an Australian Citizen on 5 May 1995.
Whether the parties are in a spouse or de facto relationship
‘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?
At the time the visa application was made the visa applicant provided evidence of being married to the sponsor with a Greek Marriage Certificate as evidence of their marriage on 31 July 2016.
The Tribunal has regard to the document and finds that the parties are married to each other at the time of the visa application and this decision, with the marriage valid for the purposes of the Act as required by s.5F(2)(a).
CLAIMS AND FINDINGS
Financial aspects of the relationship that must be considered include:-
(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 expense
The Tribunal accepts that at the time of the visa application and this decision, no real estate or other major assets are held by the parties.
The Tribunal accepts that the time of the visa application and this decision, no joint liabilities are held by the parties.
The Tribunal accepts that at the time of the visa application and this decision, none of the parties has a legal obligation with regard to the other.
The Tribunal accepts the documented evidence of the sponsor being a floor and wall tiler when living in Australia.
The Tribunal accepts documented evidence of a joint bank account being operated, one in Australia and one in Greece, in to which the sponsor deposits his wage income and from which household costs and contributions to services the primary responsibility of the property owner are met, and determines at the time of application and this decision, the joint accounts reflect the pooling of financial resources, especially in relation to major financial commitments and the sharing of day-to-day expenses.
The Tribunal accepts the documented evidence of the sponsor, visa applicant and children leaving Australia in December 2018 to live for an undefined period in Greece to pursue work opportunities as the sponsor was finding work difficult to obtain in Darwin.
Nature of the household aspects that must be considered include:-
(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
The Tribunal accepts the photographic and documented evidence of the parties having three children.
The Tribunal accepts that the eldest child was born on 17 July 2013, from the previous marriage of the visa applicant, and determines from the photographic and documented information provided that the sponsor has assumed the role of father of the child, with the Tribunal determining, at the time of application and this decision, the parties share the responsibility for the care and support of the child.
The Tribunal accepts the documented and photographic evidence of two children resulting from the marriage of the sponsor and visa applicant, with a daughter born on 28 May 2018, in Australia, and a son born in 18 July 2019, in Greece, and determines that the parties share the responsibility for care and support of the children.
The Tribunal accepts the documented evidence on living arrangements of the parties and children and determines, at the time of application, the sponsor, visa applicant and children lived together in Darwin, Australia, at the home of the mother of the sponsor.
The Tribunal accepts the documented evidence on living arrangements of the sponsor, visa applicant and children and determines, at the time of this decision, the family, having left Australia in December 2018 pursuing work opportunities for the sponsor, live together in Greece.
The Tribunal accepts the photographic and documented evidence of shared household responsibilities and determines at the time of application and this decision the parties share the responsibility for housework.
Social aspects of the relationship that must be considered include:-
(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
The Tribunal accepts the photographic and documented evidence of the parties being with other people and determines this to confirm that at the time of application and this decision the parties represent themselves to other people as being married.
The Tribunal accepts the photographic evidence and written statements of family and friends that they attended the wedding in Greece in July 2016, and have spent time with the parties since, and determines, at the time of application and this decision, they support the parties’ relationship and marriage.
The Tribunal accepts the photographic and documented evidence of the parties on the occasions in which they have been involved with others socially and determines these instances to represent, at the time of application and this decision, the parties planning and undertaking joint social activities.
Nature of the commitment to each other areas that must be considered include:-
(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.
The Tribunal accepts the documented and photographic evidence of the parties’ first meeting in Greece on 6 August 2014, with the relationship developing to the status of committing to a shared life together on 31 October 2015.
The Tribunal accepts the documented evidence of the sponsor being born and living for the first 13 years of his life in Kalymnos, Greece, the same community in which the visa applicant had lived before she went to Australia.
The Tribunal accepts the documented evidence of the parties living together from 31 October 2015.
The Tribunal accepts the documented and photographic evidence of the parties on the relationship, in particular noting the birth of two children, and determines, at the time of application and this decision, the parties provide a high level of companionship and emotional support to each other.
The Tribunal accepts the documented evidence, particularly the birth of two children, and determines, at the time of the visa application and this decision, the parties have had and continue to have an ongoing commitment to each other and the relationship as being a long term one.
Any other circumstances of the relationship
The Tribunal accepts the documented evidence of the biological father of the daughter born in July 2013, and then husband of the visa applicant, was not part of the child’s life, had gone to the United States of America to live in December 2012 while married to the visa applicant, had not contested the divorce proceeding finalised in May 2015.
The Tribunal accepts that the biological father of the child has not had contact with the visa applicant at any time during her relationship with the sponsor and the visa applicant is unable to locate any contact opportunity for him to seek approval for the daughter to live in Australia.
The Tribunal notes the Court document dated 7 May 2014 on the custody of the daughter born July 2013 in which the Court rules “the practising of parental custody” goes to her mother, the visa applicant.
The Tribunal considered all the evidence on the circumstances of the parties and determines that the evidence supports a finding that, at the time of the application and this decision, the parties have had and continue to have a mutual commitment to a shared life together as a married couple to the exclusion of all others, with the relationship genuine and continuing and they had and continue to live together.
The Tribunal accepts that the parties have been in a committed relationship since October 2015, married in July 2016, live in Darwin, Australia, from August 2016 and at the time of decision are temporarily living in Greece while the sponsor pursues work opportunities.
On the basis of the above the Tribunal is satisfied that the requirements of s.5F(2) are met at the time of the visa application and the time of this decision. The Tribunal is further satisfied the sponsor was not prohibited by subclause (2B) from being a sponsoring partner.
The applicant therefore meets cl.820.211(2)(a). The Tribunal accepts the applicant was sponsored and therefore meets cl.820.211(2)(c), and as she was the holder of a substantive visa at the time of application, cl.820.211(2)(d) does not apply. Accordingly, the applicant meets cl.820.211(2). The applicant continues to meet these requirements at the time of decision and therefore meets cl.820.221(1).
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.
The Tribunal considers the secondary applicant should be reconsidered in light of its findings on the primary applicant.
DECISION
The Tribunal remits the applications for Partner (Temporary) (Class UK) visas, with the direction that the first named 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
Steven Griffiths
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).

[2019] AATA 3444

1 August 2019

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