Phelps (Migration)

[2019] AATA 2903

Phelps (Migration) [2019] AATA 2903 (17 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Hannah Jane Phelps

CASE NUMBER:  1718412

HOME AFFAIRS REFERENCE(S):           BCC2016/147484

MEMBER:Helena Claringbold

DATE:17 May 2019

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)(a) of Schedule 2 to the Regulations; and

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

STATEMENT MADE ON 17 MAY 2019 AT 1:40PM

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Spouse) – evidence of marriage provided – parties pool financial resources – jointly responsible for care of children – shared household responsibilities – evidence parties present and recognised as spouses – companionship – genuine and ongoing spousal relationship – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 5F
Migration Regulations 1994 (Cth), r 1.15, Schedule 2, cls 820.211, 820.221

CASES
He v MIBP [2017] FCAFC 206

statement of decision and reasons

APPLICATION FOR REVIEW

1. On 11 January 2016, Mrs Hannah Jane Phelps, the visa applicant, applied for a Partner (Temporary) (Class UK) visa. The application was based on her spousal relationship with Mr Cameron Ross Phelps, the sponsor.

2. On 14 August 2017, a delegate of the Minister for Immigration and Border Protection refused to grant the visa. The delegate was not satisfied that the visa applicant and the sponsor are genuine spousal partners. Therefore, the visa applicant did not meet subclause cl.820.211(2)(a) of Schedule 2 to the Migration Regulations 1994 (the Regulations) made under the Migration Act 1958 (the Act). On 8 May 2019, the visa applicant provided the Tribunal with a copy of the delegate’s decision record.  This is a review of the delegate’s decision.

3. On 15 May 2019, the applicant appeared before the Tribunal to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The Tribunal has taken into consideration, individually and as a whole, all the evidence in the Department of Immigration and Border Protection’s (the Department’s) case file and the Tribunal’s case file and the evidence at the Tribunal hearing.

   ISSUE

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

   BACKGROUND ON THE EVIDENCE

7. The visa applicant was born in 1984 in Wigan, Lancashire, United Kingdom.  Her parents, two brothers and two sisters live in the United Kingdom. On 6 September 2008, she married Mr Matthew Magee. On 1 June 2010, Mr Magee and the applicant separated. There are no children from this relationship. She is currently employed as a consultant.

8. The sponsor was born in 1985 in Australia. His parents, sister and brother live in Australia. He has one child from a previous relationship who lived in the United Kingdom. He was previously employed as a professional rugby player. He is currently employed in local government services and is the director of an athlete and talent management company.

9. In July 2010, the parties met in Wigan, Lancashire, United Kingdom.  They have lived in a partner relationship since September 2011. On 12 August 2013, the parties married in the United Kingdom. There are two children of the relationship born in 2012 and 2015.

   Is the applicant the spouse of an eligible resident?

10. The Tribunal is satisfied that the sponsor, at the time of visa application and at the time of decision, was and is an Australian citizen.

    Are the parties validly married?

11. At the time the visa application was made, the applicant provided evidence of her marriage to the sponsor. 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 parties are in a spousal relationship?

12. ‘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).

    Are the other requirements for a spousal relationship met?

13. 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 visa applicant’s and sponsors household and their commitment to each other as set out in r.1.15A(3) of the Act, 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.

14. Regarding the financial aspect of the parties’ relationship, there is no evidence that the parties have any joint ownership of assets or joint liabilities or any joint liabilities or any pooling of financial resources, especially in relation to major financial commitments. Other than the parties’ wills, the parties do not have any legal obligations in respect of each other. The parties manage their financial matters from their personal bank accounts.  They have a joint bank account which is rarely used. The parties’ income is derived from the applicant and sponsor’s salaries. The applicant is responsible for the purchase of groceries, the children’s clothing and ad hoc service bills.  In addition she transfers an amount of money every month to the sponsor’s bank account to assist with general expenses. The parties recently completed building their home, which the applicant furnished. The mortgage for the home is in the sponsor’s name. He is responsible for the mortgage and utility payments and insurance policy payments and other general expenses. He is also responsible for mortgage payments against a house he is purchasing in the United Kingdom. The Tribunal accepts that the parties share day to day household expenses.

15. Regarding the nature of the parties’ household, the parties are jointly responsible for the care and support of their children. The parties lived together in the United Kingdom for many years. During this time the parties lived in a property purchased by the sponsor. The sponsor was employed as a professional rugby player and the applicant worked in media. They have also lived in Australia for many years.  While their home was under construction the parties lived with the sponsor’s father.  They currently live in their completed residence. The applicant and the sponsor both work and share the responsibilities of their household, including the care of their children. The parties work together and describe their household as a happy one. The Tribunal accepts that the parties share the responsibility of housework.

16. Regarding the social aspects of the parties’ relationship, the parties enjoy family life and are active socially and attend family functions and events with friends. Third party statutory declarants attest to the genuine nature of the parties’ relationship. They provide evidence of the parties presenting and being recognised as spousal partners. Photographic evidence depicts the parties at their wedding.  They also show the parties together, with their children and with others at different locations. The Tribunal is satisfied that the parties plan and undertake joint social activities together.

17. Regarding the nature of the parties’ commitment to their relationship, the parties met in 2010 in the United Kingdom. The sponsor returned to Australia in October 2010.  In November 2011, the applicant entered Australia for a second time and lived with the sponsor in his mother’s house. In February 2012, the applicant gave birth to the parties’ first son in Caringbah, New South Wales.  In February 2012, they returned to the United Kingdom so that the sponsor could take advantage of a rugby contract. In August 2013, the parties’ married in the United Kingdom. The applicant gave birth to the parties’ second son in March 2015. The parties continued to live in the United Kingdom.  At the end of 2015 the parties returned to Australia and have lived in Australia since that time.  They have nurtured their family, settled their children into school, developed friends and completed the construction of their home where they live with their children.  The applicant is currently pregnant with the parties’ third child. The Tribunal accepts that the parties lived together as de facto partners for approximately two years and have lived as spousal partners for almost six years. The parties see themselves rearing their children and enjoying their lives together. The Tribunal accepts that the parties provide each other with substantial companionship and emotional support and that they see their relationship as long term.

18. The Tribunal considered the evidence individually and as a whole. The parties provided consistent evidence to the Tribunal about all aspects of their relationship. The Tribunal is satisfied of the following: that the parties pool financial resources and share the responsibility of caring for their children and the housework. The parties plan and undertake social activities together and represent themselves to other people as being married to each other and are recognised as a married couple. The parties provide each other with companionship and support and see their relationship as long term. They demonstrated a sound knowledge of each other’s lives which is commensurate with a couple in a genuine and ongoing spousal relationship. The Tribunal accepts that the parties have a mutual commitment to a shared life as spousal partners to the exclusion of all others and that their relationship is genuine and continuing and that they do not live separately and apart on a permanent basis. 

19. 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.

20. Therefore the applicant meets cl.820.211(2)(a) and cl.820.221(1)(a) of Schedule 2 to the Regulations.

21. 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

22. 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; and

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

    Helena Claringbold
    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).

1. The matters for subregulation (2) are:

(a)      the financial aspects of the relationship, including:

1. any joint ownership of real estate or other major assets; and

2. any joint liabilities; and

3. the extent of any pooling of financial resources, especially in relation to major financial commitments; and

4. whether one person in the relationship owes any legal obligation in respect of the other; and

5. the basis of any sharing of day to day household expenses; and

(b)      the nature of the household, including:

1. any joint responsibility for the care and support of children; and

2. the living arrangements of the persons; and

3. any sharing of the responsibility for housework; and

(c)      the social aspects of the relationship, including:

1. whether the persons represent themselves to other people as being married to each other; and

2. the opinion of the persons’ friends and acquaintances about the nature of the relationship; and

3. any basis on which the persons plan and undertake joint social activities; and

(d)      the nature of the persons’ commitment to each other, including:

1. the duration of the relationship; and

2. the length of time during which the persons have lived together; and

3. the degree of companionship and emotional support that the persons draw from each other; and

4. whether the persons see the relationship as a long term one.

1. 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).