Patterson (Migration)

[2018] AATA 1489

Patterson (Migration) [2018] AATA 1489 (29 March 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Kerry Natasha PATTERSON

CASE NUMBER:  1614923

DIBP REFERENCE(S):  BCC2015/1405194

MEMBER:Shane Lucas

DATE:29 March 2018

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 (Temporary)) visa:

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

·cl.820.221 of Schedule 2 to the Regulations.

Statement made on 29 March 2018 at 1:44pm

CATCHWORDS
Migration – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner (Temporary)) – Whether a genuine spousal relationship exists – Joint finances – Joint household responsibilities – Relationship represented to others – Emotional support provided – Decision remitted with direction

LEGISLATION
Migration Act 1958, ss 5F, 65, 359A, 359AA, 376
Migration Regulations 1994, r 1.15A(3), Schedule 2, cls 820.211(2)(a), 820.211

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision of a delegate of the Minister for Immigration on 13 September 2016 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 national of the United Kingdom born on 21 August 1993. She applied for the visa on 15 May 2015 on the basis of her relationship with her sponsor. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cls.820.211(2)(a), and consequently 820.221, because the delegate was not satisfied the applicant was the spouse of the sponsor.

3. The delegate considered that the information and evidence submitted in support of the application was not sufficient to demonstrate that the visa applicant satisfied the definition of spouse under s.5F of the Act.

4. The applicant seeks review of the delegate’s decision.

5. The applicant appeared before the Tribunal on 29 March 2018 to give evidence and present arguments. The sponsor also attended the hearing to give evidence, however the Tribunal determined that it was not necessary to take oral evidence from the sponsor.

6. The applicant was not represented in relation to the review by a registered migration agent.

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

   Relevant law

8. At the time the application was made, Class UK contained only one subclass: Subclass 820 (Partner (Temporary)). The criteria for the grant of this visa are set out in Part 820 of Schedule 2 to the Migration Regulations 1994 (the Regulations).

9. Clauses 820.211(2)(a) and 820.221 require that at the time the visa application was made (and at the time of 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. The parties provided documentation attesting that the sponsor (born in Greensborough, Victoria on 30 July 1991) is an Australian Citizen by birth. Accordingly, the sponsor satisfies the requirements of cls.820.211(2)(b) and 820.221.

10. ‘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, the nature of the parties’ household, and their commitment to each other as set out in r.1.15A(3).

    Are the parties validly married?

11. If the parties are validly married, they may meet the requirements of a spousal relationship, but not a de facto relationship. The applicant provided the Tribunal with a certified copy of the Certificate of Marriage showing the marriage was made at Hurstbridge, Victoria on 7 March 2015. There is nothing to suggest the marriage is not valid. The Tribunal is therefore satisfied on the evidence that 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 spousal relationship met?

12. The applicant provided documentation to the Tribunal that was not available to the delegate. The Tribunal also had the benefit of hearing oral evidence from the applicant and found her to be frank and credible.

    Financial aspects of the relationship

13. The applicant provided the Tribunal with documentation attesting to the couple’s financial arrangements. The material included but was not limited to documentation attesting to the couple’s joint savings account with the People’s Choice Credit Union; utility and car insurance bills in joint or individual names; documentation dated 10 March 2018 from the Commonwealth Bank (in the name of both the applicant and the sponsor) confirming approval of a home loan application; and the receipt of a deposit to the value of AUD 3000 on a property in Kilmore, Victoria made on 22 February 2018. In oral evidence, the applicant also advised that the couple has contracted with a builder to construct a home on the Kilmore property before the end of this calendar year.

14. The applicant made a written submission to the Tribunal on 23 February 2018 - and provided oral evidence - regarding the approach the couple take to sharing their salaries and acquitting their household expenses. The applicant also advised the Tribunal that the couple has recently invested in a small business, hiring equipment to families and organisations staging children’s parties. The couple undertake this business primarily on weekends, while also maintaining employment during the working week. The Tribunal notes the investment being made by both parties in establishing this business as an ongoing concern for the present and future benefit of the couple and their child.

15. On consideration of the evidence, the Tribunal is satisfied that the couple have pooled their financial resources in relation to the sharing of day-to-day household expenses and major financial commitments (i.e. a property, a motor vehicle). The Tribunal is also satisfied that the parties have joint liabilities, specifically through the home loan with the Commonwealth Bank; and that the couple have committed to joint ownership of real estate (i.e. the property in Kilmore). The Tribunal is also satisfied that the parties each owe a legal obligation in respect of the other with regard to their joint home loan.

16. The Tribunal is therefore satisfied that the financial aspects of the relationship attest to the genuine and continuing spousal relationship between the parties.

    Nature of the household

17. In written submissions and in oral evidence, the applicant gave a consistent and detailed account of the couple’s living arrangements, including their work, recreational and childcare routines. The Tribunal is satisfied that the couple live together and share responsibility for the housework, cooking and other domestic duties. The Tribunal is satisfied that the parties have established a joint household.

18. The applicant provided a copy of a Birth Certificate from the Victorian Registry of Births, Deaths and Marriages attesting to the maternity and paternity of the couple’s son born in Heidelberg, Victoria on 4 February 2015. In written submissions and oral evidence, the applicant stated that the couple share responsibility for all aspects of the care and support of their child, including the preparation of meals, baths, play, and drop-off and pick-up from childcare. The applicant also advised the Tribunal that she is in the early stages of pregnancy and is expecting the couple’s second child in November. On consideration of the evidence, the Tribunal is satisfied that the couple have joint responsibility for the care and support of children.

19. The Tribunal is therefore satisfied that the nature of the parties’ household attests to the genuine and continuing spousal relationship between the parties.

    Social aspects of the relationship

20. The parties provided statutory declarations and written statements from several third parties concerning their relationship; documentation was also provided in the form of invitations in the name of the applicant, the sponsor and/or their child to weddings and children’s birthday parties; and a wealth of photographic evidence was provided regarding the couple’s social life with a network of friends and family members, including the sponsor’s parents and siblings, and the applicant’s sister, resident in Australia. The applicant also gave oral evidence regarding the sponsor’s family’s acceptance of - and support for - their relationship and the regular contact the couple’s child has with his grandparents. The photographic evidence provided showed the applicant, the sponsor and the child together and/or with others in a range of settings. The majority of these photographs appear spontaneous and casual, and show a young family engaging in social and recreational activities. The applicant also provided formal and informal photographs of the couple’s wedding ceremony in 2015. 

21. On the basis of the evidence before it, the Tribunal is satisfied that the persons represent themselves to others as being married to each other, and that the couple plan and undertake joint social activities. The Tribunal is also satisfied that the relationship is viewed as genuine and continuing in the opinion of the couple’s friends and family.

22. The Tribunal is therefore satisfied that the social aspects of the relationship attest to the genuine and continuing spousal relationship between the parties.

    Nature of the person’s commitment to each other

23. The couple met in June 2013; have lived together for over four years; and been married for three years. In the applicant’s written submission to the Tribunal and in oral evidence, the applicant provided a persuasive portrait of the couple’s relationship; their shared daily care for their son; their current circumstances; and their future aspirations. The applicant gave frank and credible evidence regarding the development of the couple’s relationship over time, the companionship and emotional support they provide each other, and their mutual reliance. The applicant also spoke of the significant emotional support the sponsor has provided her – and continues to provide - as she grapples with a range of personal issues. The Tribunal notes also the contents of a letter provided by the applicant’s treating psychologist (dated 28 September 2017) going to the support provided to the applicant by the sponsor, which states:

    “[the applicant] and her husband have attended numerous sessions with me and I have also conducted sessions with them at their home where I have assisted [the sponsor] with strategies to support his wife.”

24. On consideration of the evidence before it, the Tribunal is satisfied regarding the duration of the relationship and the length of time the couple have lived together. The Tribunal is also satisfied that the persons draw on each other for a significant degree of companionship and emotional support, and that they view their relationship as long term.

25. The Tribunal is therefore satisfied that the nature of the persons’ commitment to each other attests to the genuine and continuing spousal relationship between the parties.

    Other matters for consideration

26. On 23 February 2018, the Tribunal wrote to the applicant pursuant to S.359A of the Act seeking comment regarding a certificate made pursuant to s.376 of the Act contained on her Departmental file. The certificate pertains to adverse information on the file that was provided to the Department on 11 September 2017. The information was given anonymously and contains no detailed or substantive allegations; however the informant asserts that the relationship between the parties is fake and contrived. This information was also put to the applicant at the hearing before the Tribunal pursuant to s.359AA of the Act.

27. The applicant strongly denied the allegation that her relationship with the sponsor is fake and contrived, and requested that the Tribunal look to the evidence provided to substantiate her claims. On consideration of the anonymous nature of the adverse information, the lack of substantive detail contained therein, and the applicant’s frank and credible evidence regarding the genuine and continuing nature of her relationship with the sponsor, the Tribunal accords the adverse information no weight in the making of this decision.

28. Having regard to all the circumstances of the relationship, the Tribunal is satisfied that when the application was made and at the time of this decision, the applicant and sponsor had a mutual commitment to a shared life to the exclusion of others. The Tribunal is satisfied their relationship is genuine and continuing. The Tribunal is satisfied the applicant and the sponsor live together. 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 at the time of this decision. Therefore the applicant meets cls.820.211(2)(a) and 820.221.

    Conclusion

29. 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

30. 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 (Temporary)) visa:

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

    ·cl.820.221 of Schedule 2 to the Regulations.

    Shane Lucas
    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).