Rachmayati (Migration)

[2024] AATA 1678

Rachmayati (Migration) [2024] AATA 1678 (6 June 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs  Rachmayati

REPRESENTATIVE:  Mr Eugene Kyselov (MARN: 9803836)

CASE NUMBER:  2005619

HOME AFFAIRS REFERENCE(S):          BCC2016/2460510

MEMBER:Donna Petrovich

DATE:6 June 2024

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 820 visa:

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

Statement made on 06 June 2024 at 11:37am

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – genuine spousal relationship – remained together continuously for 8 years – share expenses and pool finances – built and sold a business together – decision under review remitted

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

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 Home Affairs to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s 65 of the Migration Act 1958 (Cth) (the Act). The applicant applied for the visa on 25 July 2016. The delegate refused to grant the visa on 16 March 2020.

2. The delegate made the decision to refuse the visa to the applicant.  It was the finding of the delegate that the applicant provided limited and inconsistent evidence in relation to the claimed duration of the marriage.  On the evidence, it was found by the delegate that the evidence insufficiently demonstrated that the applicant was the spouse of the sponsor as defined by s 5F of the Act.  The Tribunal agrees with the delegate that as the couple had validly married, the applicant did not satisfy the definition of a de facto partner as per s 5CB of the Act.

3. The issue before the Tribunal is whether the applicant, at the time of application, is the spouse of the sponsor as defined by s 5F of the Act and therefore meets cl 820.211(2)(a) of the Regulations.

   Background

4. The couple met on an Asian dating site called Cupid Asian, where they began talking and started talking on Whatsapp.  The applicant agreed to come to Australia for a holiday to meet the sponsor.  She stayed with him at his home for 10 days between 24 December 2015 and 5 January 2015.  During this time the sponsor asked her to be his partner and to return to Australia to live with him. 

5. The applicant was at that time working as an administrative/personal assistant in a position she had held for 10 years in Jakarta, being her country of residence.  She did not have close relatives in Jakarta.  The applicant arranged to come to Australia after finding a replacement for her position which took 4 months.

6. On her return to Australia, the applicant commenced living with the sponsor at his rental property from 4 May 2016. 

7. On 14 July 2016 the couple were married in a civil ceremony.  They have provided limited photographs.  After the wedding ceremony, the couple celebrated their marriage at a restaurant with their witnesses.  As they were short of money the wedding celebration was small.

8. On 25 July 2016 the applicant applied for Partner visa.   

9. The applicant appeared before the Tribunal on 4 June 2024 to give evidence and present arguments.

10. At the hearing the Tribunal received evidence from the couple that they were unaware of the application process.  Also, as they had limited financial resources the couple claim that they did not go to many places but stayed home to save money.

11. The couple told the Tribunal that they had started a business together where the sponsor drove a tourist bus and the applicant did the administrative work including making the bookings. 

12. Recently they sold the business.  They plan to move to Queensland to start a new tourist tour business and to purchase land for the construction of their own home.

13. The applicant recently gave up her job as a full- time deli manager. 

14. The couple have established a company in the applicant’s name and have provided documents to the Tribunal substantiating this claim.

15. They have lived together as a married couple for the past eight years.  The couple told the Tribunal that they have not spent any time apart during their marriage.  They socialise together with a wide group of friends.  Every Friday night they go out for dinner spending time with friends to socialise.

16. The couple have provided evidence of their relationship and lives together, including the following:

    ·     The couple’s unsigned and undated relationship statement;

    ·     The couple’s unsigned and undated statement relating to the nature of their household which includes photographs of their home;

    ·     Letter signed on 29 October 2015, from the sponsor, Max Mahmut Sukan dated 30 October 2015, supporting the applicant’s tourist visa application;

    ·     Email conversations regarding the sponsorship;

    ·     Joint rental agreement;

    ·     Photograph of 2015 Christmas table decoration at the sponsor’s home in Rockdale;

    ·     Proof of Qantas flights by the applicant from Jakarta to Sydney (return) - 10 days in 2015 - to vist the sponsor in 2015;

    ·     Holiday photographs covering the period 24 December 2015 - 4 January 2016.  The notes on the photographs appear to have the incorrect dates of 24 December 2016 to January 2016;

    ·     GARUDA flights and tickets Jakarta to Sydney in the applicant’s name;

    ·     Letter dated 6 July 2016 from the Registry of Births, Deaths and Marriages addressed to the couple confirming their wedding on 14 July 2016;

    ·     A small collection of wedding photographs of the couple including some with their witnesses;

    ·     The couple’s NSW Marriage Certificate dated 14 July 2022;

    ·     Commercial vehicle purchase in the applicant’s name, including registration and insurance documents;

    ·     St George Bank account statements in joint names covering the periods of 18 March 2023 to 17 September 2023 and 18 September 2023 to 16 March 2024;

    ·     Photographs of the couple together coving the period 1 January 2016 to April 2023;

    ·     Photographs of the couple together and with friends from March 2020 to March 2023;

    ·     Photographs of the couple together and with family members from November 2023 to April 2024;

    ·     Photographs of the couple together and with family members from October 2018 to 2022;

    ·     The sponsor’s statement in support signed and dated 24 May 2023;

    ·     Form 888 – statement in support by Mammadov Elkhan signed 21 May 2022;

    ·     Signed statement in support from Sinem Sukan, the sponsor’s child, dated 15 May 2020;

    ·     Signed statement in support from Suavi Sukan, the sponsor’s son, dated 14 May 2020;

    ·     Letter of support from Mark Small signed and dated 26 May 2024;

    ·     Text Messages between the couple from December 2018 to January 2020;

    ·     Text messages between the couple from 2 August 2020 to November 2020;

    ·     Utility bills;

    ·     ASIC statement for business, MAX TOUR, registered on 8 April 2017 showing the registered holder of the business being Rachmayati Rachmayati, with a renewal date of 8 April 2025;

    ·     A bundle of chat messages between applicant and sponsor;

    ·     Letter from property manager Laura Apoleska, dated 27 May 2024 confirming that the couple have lived at the same address since 12 July 2017.

17. The Tribunal accepts that initially the applicant did not have sufficient evidence supporting the claim that the couple were in a genuine spousal relationship.  This is largely because she moved into the sponsor’s home, and all the bills and accounts were in his name.

18. However, the Tribunal finds that the couple are married, living in an ongoing spousal relationship to the exclusion of all others.  They have remained together continuously for 8 years.  The evidence supports the conclusion that they share expenses and pool finances.  They have built and sold a business together.  The applicant was named on the invoice for the commercial vehicle associated with the business and on the business registration evidence. The applicant has now provided a large parcel of evidence which is accepted by the Tribunal as credible.

19. The Tribunal concludes that s 5F of the Act is satisfied at the time of application as the couple are spouses as defined by that provision.

20. Given the evidence the Tribunal is satisfied that the criteria are met and concludes that the matter should be remitted for reconsideration.

    DECISION

21. The Tribunal remits the application for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 820 visa:

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

    Donna Petrovich
    Member