Portelli (Migration)

[2023] AATA 926

Portelli (Migration) [2023] AATA 926 (12 April 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Emanuel Portelli

VISA APPLICANTS:  Mrs Jie Wang
Mr Shuai Liu

REPRESENTATIVE:  Ms Queenie Yu (MARN: 0427214)

CASE NUMBER:  2117114

DIBP REFERENCE(S):  BCC2019/3135917

MEMBER:Michael Cooke

DATE:12 April 2023

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the applications for Partner (Provisional) (Class UF) visas for reconsideration, with the direction that the first named visa applicant meets the following criteria for a Subclass 309 (Partner (Provisional)) visa:

·cl.309.211 of Schedule 2 to the Regulations

·cl.309.221 of Schedule 2 to the Regulations

Statement made on 12 April 2023 at 9:46am

CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – genuine and continuing relationship – financial, household and social aspects of relationship and nature of commitment – validly married – geographic, visa, pandemic and sponsor’s health issues – extensive additional information provided – decision made without hearing necessary – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5F, 65
Migration Regulations 1994 (Cth), r 1.15A(3), Schedule 2, cls 309.211(2), 309.221

CASE
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 on 22 October 2021 to refuse to grant the visa applicants Partner (Provisional) (Class UF) visas under s.65 of the Migration Act 1958 (the Act).

2. The first named visa applicant (the visa applicant) applied for the visa on 21 June 2019 based on her relationship with her sponsor, the review applicant. At that time, Class UF contained only one subclass: Subclass 309 (Partner (Provisional). The criteria for the grant of this visa are set out in Part 309 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 first named visa applicant (the applicant) did not satisfy cl.309.211 because she did not meet the definition of spouse in s.5F of the Act.

4. The Tribunal has had the benefit of copious additional information from the parties pursuant to reg.1.15A(3) sufficient to finalize the case ‘on the papers’.

5. The review applicant was represented in relation to the review.

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 parties meet the definition of spouse.

   SPOUSE/DE FACTO (cl.309.211(2), cl.309.221)

   Whether the parties are in a spouse or de facto relationship

8. Clauses 309.211(2) and 309.221 require that at the time the visa application was made, and at the time of this decision, the visa 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 visa applicant claims to be the spouse of the review applicant who is an Australian citizen.

9. ‘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 visa applicant’s and review applicant’s 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?

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

    Findings and reasons about each matter in r.1.15A(3)(a), (b), (c) and (d), and any other circumstances of the relationship under r.1.15A(2):

    ·Financial aspects of the relationship – including joint ownership of assets; joint liabilities; extent of pooling of financial resources; any legal obligations owed to the other party; any sharing of day-to-day household expenses.

11. The parties are restricted by visa and geographic circumstances from having joint ownership of assets and joint liabilities and any legal obligations owed to the other party. Nevertheless, the have provided recent evidence of pooling of financial resources such a joint bank account and sharing of funds for household or personal expenses through banks in China and Australia.

12. The Tribunal is satisfied that the financial aspects of the relationship are spousal in nature.

    ·Nature of the household – including any joint responsibility for care and support of children; parties' living arrangements; and any sharing of housework.

13. The parties committed to a shared life together in April 2019 and married in Australia in May 2019. Departmental records show that the parties departed Australia for China together on 11 June 2019. The parties spent around three weeks together outside Australia in June 2019. They also lived together in Australia for a year and shared housework on the farm.  They have been prevented from reuniting by geographic and visa circumstances and the pandemic and health issues suffered by the sponsor. They parties do not have biological children together, but online correspondence indicates the sponsor’s children regard the applicant as their stepmother and look forward to her return to Australia.

14. The Tribunal is satisfied that (when together) the parties maintained a spousal household.

    ·Social aspects of the relationship – including whether parties represent themselves to other people as being married to each other; the opinion of friends and acquaintances about the nature of the relationship; and any basis on which the persons plan and undertake joint social activities.

15. The parties have provided additional evidence of their social relationship. The parties have evidenced that they represent themselves to other people as being married to each other and are accepted as same. The opinion of friends and acquaintances about the nature of the relationship is that it is genuine and continuing. They are restricted by geographic considerations from undertaking joint social activities but did so when the sponsor visited China in 2019 and when home together on the farm in Australia.

16. The Tribunal is satisfied that the social aspects of the relationship are spousal in nature.

    ·Nature of persons' commitment to each other – including duration of the relationship; the length of time they have lived together; degree of companionship and emotional support they draw from each other; and whether they see the relationship as long-term.

17. The parties have been in a de facto and married relationship since 2018.  They have lived together in Australia for around 12 months and for a short time together in China. The pandemic and the sponsor’s ill health have prevented the parties from sharing their lives together. However, despite these travails the parties have provided significant companionship and emotional support via the internet and telephonic communication. They see the relationship as long-term.

18. The Tribunal is satisfied that the nature of their commitment to each other is spousal.

    ·Any other circumstances of the relationship.

19. The applicant has some serious medical issues and lives by himself in rural NSW. His doctors advise that his health would be improved by the care and companionship of his wife.

20. The Tribunal has considered ‘the full circumstances of the relationship’ and makes the following findings on these matters against s.5F(2)(b)-(d) of the Act. The parties have a mutual commitment to shared life to the exclusion of others; a genuine and continuing relationship; and they live together and not separately and apart on a permanent basis.

21. Based on 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.

22. Therefore, the visa applicant meets cl.309.211 and cl.309.221.

23. Ensure you make findings and reasons in respect of any secondary applicants and modify the concluding paragraphs as necessary.

24. 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 309 visa.

    DECISION

25. The Tribunal remits the applications for Partner (Provisional) (Class UF) visas for reconsideration, with the direction that the first named visa applicant meets the following criteria for a Subclass 309 (Partner (Provisional)) visa:

    ·cl.309.211 of Schedule 2 to the Regulations

    ·cl.309.221 of Schedule 2 to the Regulations

    Michael Cooke
    Senior Member

    
    

    Attachment  - Extract from Migration Regulations 1994

    1.15ASpouse

    (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).