Potgieter (Migration)

[2018] AATA 3107

Potgieter (Migration) [2018] AATA 3107 (15 May 2018)

DECISION RECORD

DIVISION:Migration and Refugee Division

APPLICANT:  Mrs Erma Potgieter

CASE NUMBER:  1613762

DIBP REFERENCE(S):  BCC2015/1759435

MEMBER:Helen Kroger

DATE:15 May 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for Partner (Temporary) (Class UK) visa, with the direction that the first named visa applicant meets the following criteria for a Subclass 820 (Partner (Temporary)) visa:

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

· cl.820.221 of Schedule 2 to the Regulations.

CATCHWORDS
Migration – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner (Temporary)) – Whether a genuine spousal relationship exists – Degree of joint finances – Joint household responsibilities – Relationship held out to others as continuous and ongoing – Relationship has been ongoing for a significant period – Parties view relationship as continuous and ongoing – Decision remitted with direction

LEGISLATION
Migration Act 1958 (Cth), ss 5F, 65, 338, 347
Migration Regulations 1994 (Cth), Schedule 2, cl 820.211

VISA APPLICATION REVIEW – SUB CLASS 820

1. The visa applicant applied to the Department for the visa on 19 June 2015.

2. The delegate refused to grant the visa on 19 August 2016 on the basis that the visa applicant did not satisfy cl.820.211(2) of Schedule 2 to the Migration Regulations 1994 (Regulations). The criteria for the grant of the visa are set out in Part 820 of Schedule 2 to the Regulations. The primary criteria must be satisfied by at least one applicant.

3. On 29 August 2016 the visa applicant made a valid application (under s.347 of the Migration Act 1958(the Act)) for review of the delegate’s decision (reviewable under s.338(2) of the Act).

4. The Review Applicant (the applicant), Mrs Erma Potgieter, appeared before the Tribunal on 11 April 2018 to give evidence and present arguments. Further documentary evidence was provided to the Tribunal prior to the hearing. The applicant’s sponsor (and husband) Mr Ramanjit Singh attended, along with Mr Amandeep Singh, a witness, both providing oral evidence at the hearing. A registered migration agent was also in attendance.

   BACKGROUND

5. Based on all the documentary and oral evidence before the Tribunal, the Tribunal is satisfied the facts of this case are as follows: The applicant and sponsor first met in 2014 in Dubai when they were both working as flight attendants with Emirates Airlines.  They were both independently based in Dubai and commenced a romantic relationship.  They lived separately according to local law and custom, as it is illegal for unwed couples to live together in the Emirates.  Oral evidence was provided that indicates the parties shared an active social life, including extensive travel outside their work commitments.

6. The sponsor proposed to the applicant in February 2015 in the presence of a number of friends in Dubai and they moved to Western Australia in April 2015. They were married in a private service in May 2015, with some friends attending and acting as witnesses.   Before their marriage, the sponsor met with the applicant’s family, including her mother (foster) and grandmother, both in Dubai and South Africa.  The parties moved to Melbourne in 2016, to be closer to the sponsor’s family, along with wanting to live in a busier and livelier city.  They moved from Perth to Melbourne by car, transporting their dogs with them.  Both parties work full time.

7. The parties have lived together continuously since moving from Dubai and have been married for three years.

   ISSUE

8. The issue is whether the applicant was, at the time of application, and continues to be, the spouse or de facto partner of her sponsor.

Whether the parties are in a spouse or de facto relationship

1. 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. In this case, the Tribunal is satisfied that the sponsor is an Australian Citizen, acquiring his Australian citizenship on 10 March 2011.

Are the parties validly married?

1. ‘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 husband and wife 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).

2. The Tribunal has considered a certified copy of the parties’ Certificate of Marriage, which according to the document, took place on 30 May 2015 at Blackmore Park in Girrawheen, Western Australia. The Tribunal accepts the document as genuine. On the evidence, the Tribunal is satisfied that the parties were single and 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?

1. Regulation 1.15A(3) provides relevant factors for determining whether a spouse relationship exists.  These factors are (a) the financial aspects of the relationship; (b) the nature of the household; (c) the social aspects of the relationship; and (d) the nature of the person’s commitment to each other

2. In assessing these issues, the Tribunal has had regard to all the documents and evidence provided to the Department and the Tribunal.  Further oral evidence was   submitted at the hearing on 12 April 2018.

The financial aspects of the relationship

1. The Tribunal must consider all the financial aspects of the relationship including any joint ownership of real estate or other major assets; any joint liabilities; the extent of any pooling of financial resources (especially in relation to major financial commitments); whether either person in the relationship owes any legal obligation in respect of the other and the basis of any sharing of day to day household expenses.

2. The parties provided copies of three tenancy rental agreements that they have co-signed for three different residencies in Australia, the first being the Western Australian residence they lived in, the second a home in Narre Warren and the third being their current home in Glen Waverley. All agreements were made out in the name of both parties.  The applicant and sponsor do not share any significant liabilities or assets.  Documentation indicates that they hold some joint accounts and the parties indicated during the hearing, that they take joint responsibility for the day to day expenses incurred by the household along with the costs incurred by extensive and local travel.

3. The Tribunal finds that whilst the parties do not share any significant assets or liabilities, it has regard for the transparent way in which they manage their financial affairs. The Tribunal gives some weight to the circumstances of their financial arrangements and the manner in which they are managed.

The nature of the household

1. In assessing the nature of the household, the Tribunal gives weight to evidence of joint responsibility or shared responsibility for housework and chores, for the care and support of any children (where relevant), and the living arrangements of the parties.

2. Evidence presented to the Tribunal suggests that both parties work full time, the sponsor employed with Medibank and the applicant works with TravelCall.  The applicant is the primary carer for the two dogs and assumes responsibility for day to day management of the house.  The parties do their own personal laundry and share shopping and cooking between them.  Garden maintenance is shared between the two as well. 

3. The Tribunal has considered the circumstances of their household and finds that they share responsibilities as required.

   The social aspects of the relationship

4. In assessing the social aspects of a relationship, the Tribunal must have regard to all the social circumstances of the relationship including whether the parties represent themselves as a couple to other people as being married to each other; the opinion of the parties’ friends and acquaintances about the nature of the relationship and any basis on which the parties plan and undertake joint social activities.

5. The parties married in a civil ceremony on 30 May 2015.  It was attended by family and friends, and held in Blackmore Park, Girrawheen, Western Australia.  Circumstantial evidence indicates that the parties are socially active, enjoying the company of their family and friends.  They have travelled widely together since they met, and in particular, since their marriage and have attended special events, such as weddings and birthdays, as a married couple.  The sponsor has met with the family (foster) of the applicant in Cape Town and Belgium and members of the sponsor’s family have travelled to Australia to stay with and spend time with the parties.  The sponsor has extended family residing in Victoria, an Uncle and his family, who they spend time with. They enjoy a very active social life and this is evidenced by the diversity and quantum of photos taken at different times in numerous places with friends and family.  They describe themselves as “pretty relaxed” on weekends, spending time with their dogs or watching TV.

6. The Tribunal has regard to the way in which the parties represent themselves as a married couple and all who interact with them, believe them to be married. 

   The nature of the person’s commitment to each other

7. In assessing commitment to each other, the Tribunal must have regard to the duration of the relationship, the length of time during which the persons have lived together, the degree of companionship and emotional support that the parties draw from each other and whether the persons see the relationship as a long term one.

8. The Tribunal has had regard to the duration of the claimed relationship, the circumstances around their initial de facto relationship, the legal requirements to live apart whilst in Dubai and their joint living arrangements upon their arrival in Australia where they have lived together continuously since their relocation here  The Tribunal gave significant weight to the evidence provided by both parties and the life they share together in Australia. The parties demonstrated a deep connection and understanding during the hearing.

9. After having regard to the circumstances of the parties relationship, the way in which the relationship evolved, the significant emotional support that provide to each other and the support they offer each other on a daily, the Tribunal is satisfied that the parties demonstrate a shared commitment to having a future together as a married couple, to the exclusion of all others, and that the relationship is genuine and continuing.

FINDINGS

1. The Tribunal finds from all the evidence the parties are married to each other under a marriage which is valid for the purposes of the Act, and therefore at the time of application and time of decision the parties meet s.5F(2)(a).

2. The Tribunal is satisfied that at the time of application and the time of decision the applicant and the sponsoring partner have a mutual commitment to a shared life as husband and wife to the exclusion of all others. The Tribunal is satisfied that the relationship is genuine and continuing. They therefore meet the requirements of s.5F(2)(b) and s.5F(2)(c) for a married relationship.

3. Additionally, the Tribunal is satisfied that at the time of application and time of decision the applicant and the sponsoring partner live together. Accordingly, they meet the requirements of s.5F(2)(d) for a married relationship.

4. For these reasons, the Tribunal finds that at the time of application and time of decision the applicant and the sponsoring partner are in a married relationship within the meaning of s.5F(2) and therefore satisfy the definition of ‘spouse’ contained in s.5f.

5. The Tribunal is satisfied that at the time of application, and time of decision, the applicant was the spouse of the person who is an Australian permanent resident and that the applicant was sponsored by that person. The Tribunal finds that there is no evidence before it which indicates that the sponsor was prohibited from being a sponsoring partner under cl.820.211(2B).

6. Accordingly the applicant meets the requirements of cl.820.211(2)(a) and (c).

7. Given these findings, the Tribunal is satisfied that at the time the visa application was made and at the time of this decision the parties were in a spousal relationship. Therefore the applicant meets cl.820.211(2) and cl.820.221.

8. 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

1. The Tribunal remits the applications for Partner (Temporary) (Class UK) visa, with the direction that the first named applicant meets the following criteria for a Subclass 820 (Partner (Temporary)) visa:

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

   ·cl.820.221 of Schedule 2 to the Regulations.

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).