Ragusuloto (Migration)

[2021] AATA 4322

Ragusuloto (Migration) [2021] AATA 4322 (3 September 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Eroni Kurumaia Ragusuloto

CASE NUMBER:  1919540

HOME AFFAIRS REFERENCE(S):          BCC2018/981888

MEMBER:Christine Kannis

DATE:3 September 2021

PLACE OF DECISION:  Perth

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) of Schedule 2 to the Regulations

·cl 820.221 of Schedule 2 to the Regulations

·reg 2.03A

Statement made on 03 September 2021 at 7:22am

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – genuine de facto relationship – financial aspects – nature of the household – social aspects – nature of the commitment – 12-month requirement – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5CB, 5F, 65
Migration Regulations 1994 (Cth), rr 1.09A, 1.15A, 2.03A; Schedule 2, cls 820.211, 820.221

CASES
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 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).

2. The applicant applied for the visa on 28 February 2018 on the basis of his relationship with his sponsor, Ms Danae Brazier. At that time, Class UK contained only one subclass: Subclass 820 (Partner). The criteria for the grant of this visa are set out in Part 820 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). The primary criteria must be satisfied by the applicant.

3. The delegate refused to grant the visa because the delegate was not satisfied that the applicant’s relationship with the sponsor met the definition of a de facto relationship under the Act and therefore he did not satisfy cl.820.211(2)(a).

4. A copy of the Decision Record was submitted to the Tribunal by the applicant for the purposes of the review.

5. No hearing was held in this case as the Tribunal was able to make a favourable decision on the material before it.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issues to be considered are whether the applicant was the de facto partner of the sponsor within the meaning of s.5CB of the Act at the time of application and, whether at the time of decision, he is the spouse of the sponsor as defined in s.5F of the Act.

8. The parties were not married at the time of application. They married on 22 December 2018.

   Whether the parties are in a spouse or de facto relationship

9. 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 the present case the applicant is sponsored by a person who is an Australian citizen.

10. 'De facto partner' is defined in s.5CB of the Act, which provides that a person is in a de facto relationship with another person to whom they are not married if they have a mutual commitment to a shared life to the exclusion of all others, the relationship is genuine and continuing, the couple live together, or do not live separately and apart on a permanent basis, and the couple are not related by family: s.5CB(2). In forming an opinion whether they are in a de facto relationship consideration must be given to all of the circumstances of the relationship. This includes evidence of the financial and social aspects of the relationship, the nature of the household and the persons’ commitment to each other as set out in in r.1.09A(3) which is attached to this decision. Each of the specific matters contained in r.1.09A(3) are effectively questions which must be answered: He v MIBP [2017] FCAFC 206.

11. Section 5F of the Act 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). In forming an opinion as to these matters, regard must be had to all of the circumstances of the relationship which includes the matters as set out in r.1.15A(3. A copy of r.1.15A(3) is attached to this decision.

12. The evidence provided included a copy of a Marriage Certificate issued by the Registrar of Births, Deaths and Marriages WA showing the applicant and the sponsor married on 22 December 2018. On the basis of the written evidence before it the Tribunal concludes that the marriage satisfies the requirements for a valid marriage for the purpose of the Act as required by s.5F (2)(a).

13. Prior to the scheduled hearing, documentary evidence was provided which included but was not limited to written statements made by the applicant and the sponsor,  statutory declarations made by the applicant and the sponsor dated 17 August 2021, statutory declarations made by friends and a family member, evidence of cohabitation and photographs.

    Background

14. The applicant is a Fiji national. The sponsor is an Australian citizen. 

15. In his Application for migration to Australia by a partner the applicant indicated his relationship with the sponsor commenced on 16 October 2016 and that they committed to a shared life together to the exclusion of all others on 1 January 2017.

16. On 28 February 2018 the applicant lodged an application for a Partner visa.

17. The Tribunal considered the evidence against the r.1.09A(3)/r.1.15A(3) matters.

    Financial aspects of the relationship

18. The Tribunal has taken into account the evidence provided as to the financial aspects of the relationship including the extent of pooling of financial resources and any sharing of day-to-day household expenses.

19. In the Application for migration to Australia by a partner the applicant stated that he and the sponsor shared their living expenses including rent, bills, grocery costs and expenses related to the care of their dog.

20. In their respective statutory declarations, the parties each said they had a joint bank account for rent, joint health insurance and savings. The evidence before the Tribunal included Westpac Choice account statements in the parties’ joint names which showed deposits in 2018, 2019, 2020 and 2021 made by the applicant. The transactions were described as rent, private health insurance, bills and holiday savings and wedding preparation.

21. In their respective statutory declarations, the parties each said they share living expenses including utilities costs, vet bills and groceries. They said they had jointly purchased furniture and household items.

22. Despite the limited documentary evidence, the Tribunal is satisfied that the evidence in relation to the financial aspects of the relationship is an indicator of a genuine and continuing de facto relationship at the time of application and of a spousal relationship at the time of decision.

    Nature of the household

23. The Tribunal has taken into account the evidence as to the nature of the household including the parties’ living arrangements and any sharing of housework.

24. In the Application for migration to Australia by a partner the applicant stated that he and the sponsor share the housework, cooking and the care of their dog.

25. In his written statement the applicant said he and the sponsor commenced cohabitation in January 2017. He said he obtained work drilling work 400 kilometres west of Laverton and then worked on a FIFO basis. In her written statement the sponsor said she and the applicant commenced cohabitation in January 2017. At that time, she was sharing a house with a friend at Blencowe Street, West Leederville WA 6008. She said the applicant moved in with her and her friend.

26. A Residential Tenancy Agreement for a property at Troy Terrace, Daglish WA 6008 for the period 21 July 2017 to 20 July 2018 was provided. The document showed the sponsor as Tenant 1 and the applicant’s name was handwritten in the details for Tenant 2. The Tribunal noted that only the sponsor and the lessor signed the Agreement. In her written statement the sponsor said the applicant was working away when she signed the lease and a lease variation was done when he arrived home to include him on the lease. A Variation of Security Bond dated 14 August 2017 was provided evidencing this variation.

27. In her written statement the sponsor in 2017 she and the applicant acquired a dog and they needed more space and so they moved to another property in Wembley. She said it had a beautiful garden and a great entertaining area. This property was at Holland Street, Wembley WA  6014. The parties’ Marriage Certificate indicates they were both residing at this address at time of their wedding. In her written statement the sponsor said after they married, they moved to Hyde Park. She said they lived right near the park and every day they walked the dog and also had picnics and coffee in the park. Correspondence dated 19 April 2019 addressed to the parties at Glendower Street, Perth WA 6000 from Mack Hall Real Estate was provided.

28. The parties’ statutory declarations both state their address to be Amore Lane, Mount Lawley WA 6050.  A change of address confirmation dated 14 May 2020 from the Australian Electoral Commission addressed to the sponsor at this address was provided. Correspondence addressed individually to the applicant and the sponsor at this address was provided.

29. In their respective statutory declarations, the parties each said that the applicant is a FIFO worker and when he is home he walks their dog and does the cleaning, laundry, cooking and outdoor and garden maintenance. The sponsor also said she and the applicant enjoy cooking together.

30. The Tribunal finds that the evidence in relation to the nature of the household is an indicator of a genuine and continuing de facto relationship at the time of application and of a spousal relationship at the time of decision.

    Social aspects of the relationship

31. The Tribunal considered the evidence in relation to the social aspects of the relationship including whether parties represent themselves to other people as being in a de facto relationship or a spousal relationship with 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.

32. In his written statement the applicant said he first met the sponsor’s parents, who live in Tasmania, when they visited Perth in June 2017. He said they were very accepting of him and they invited him to spend Christmas in Tasmania with the family. He said he met the sponsor’s friends and her son, Fletcher, during the visit to Tasmania. The applicant said their wedding on 22 December 2018 was attended by close friends because he doesn’t have any family in Perth. He said the sponsor’s son and daughter attended and her daughter was in their wedding party.  In her written statement the sponsor gave consistent evidence regarding Christmas 2017 in Tasmania. She also said the applicant met her brother Scott during this time. She said her children and their partners were able to travel from Tasmania and Melbourne to celebrate the wedding on 22 December 2018. She said they had the ceremony at City Beach and then hosted a celebratory dinner at Hamptons restaurant with 30 friends and family.

33. In her written statement the sponsor said in 2019 she and the applicant visited Tasmania to celebrate her father’s 90^th birthday. She said prior to that they toured the east coast together and caught up with friends and family. She said they visited the Bay of Fires, the Iron Pot Brewery, Wine Glass Bay and completed the 4-hour Hazards Beach walk. She said they explored waterfalls on the way back to Launceston and went to Devonport with her parents.  

34. In his statutory declaration the applicant said he and the sponsor often go out for breakfast and their good friends, Venetia and Peter Scaife often join them. He said they enjoy nights out together and often have drinks and snacks with friends at venues such as Clancy’s at City Beach. The applicant said he and the sponsor previously travelled to Tasmania to visit the sponsor’s mob and spend time with her friends. He said they also travelled to Melbourne to visit the sponsor’s daughter however since the COVID-19 pandemic, they have holidayed at Prevelly and Albany. In her statutory declaration the sponsor provided consistent evidence regarding the social aspects of their relationship.

35. A written statement dated 3 July 2019 from the sponsor’s mother was provided in support of the genuineness of the parties’ relationship.

36. Statutory declarations made by friends, Ms Venetia Scaife (on 27 February 2018 and 15 August 2021) and Ms Lisa-Marie Manners (on 27 December 2018) were provided attesting to the genuineness of the parties’ relationship. Ms Manners also said she previously shared a house with the sponsor and in that time the applicant stayed most nights at the house from January 2017 to July 2017. The Tribunal notes that the declarants had spent time with the parties as a couple and provided detailed reasons for their beliefs that the relationship is genuine and continuing.

37. A statutory declaration made by Mr Matthew Chong Sue (on 2 December 2019) was provided. At the time of making the declaration Mr Chong Sue had known the applicant for 30 years and the sponsor for three years. He said the applicant was living with him when he met the sponsor and said the applicant moved out of the property they shared to live with the sponsor in January 2017. He said he socialised with the couple a few times a month. His reasons for his belief that the parties’ relationship is genuine include that their long-term plans include bringing the applicant’s children from Fiji to Australia.

38. A written statement dated 29 June 2019 from Ms Sally Snell was provided. Ms Snell said she had known the sponsor for 14 years. She first met the applicant in December 2016 when she visited Perth. She said she spent time with the couple and also spent time with them when they visited Tasmania at Christmas 2017.

39. A written statement dated 29 June 2019 from Ms Donna Mitchell was provided. Ms Mitchell said she had known the sponsor for more than 30 years. She first met the applicant when he visited Tasmania at Christmas 2017. She said she and her husband spent time with the couple during this trip.

40. A statutory declaration made by Ms Claire Eade (on 5 July 2019) was provided. Ms Eade first met the applicant when he visited Tasmania at Christmas 2017. She said she spent time with the couple during this trip.

41. A statutory declaration made by the sponsor’s cousin, Ms Shani Kaitani (on 16 August 2021), was provided. At the time of making the declaration Ms Kaitani had known the applicant for five years and the sponsor for 51 years. Ms Kaitani and her family attended the parties’ wedding and socialise with them on a regular basis. Ms Kaitani provided detailed reasons for her belief that the relationship is genuine and continuing.  

42. Photos of the parties together in April 2017 at Kalbarri and in December 2017 in Tasmania were provided. Photos of the parties with the sponsor’s parents in 2017 and 2019 were provided.

43. Evidence that the parties travelled together to Melbourne and Launceston in December 2017 was provided.  

44. The evidence before the Tribunal included an Employment Verification Letter dated 10 August 2021 from the applicant’s employer which states that the sponsor is listed as the applicant’s next of kin.

45. Based on the evidence which included statutory declarations and written statements from family members and friends of the applicant and the sponsor, the Tribunal is satisfied that the parties represented themselves to other people as being in a de facto relationship with each other at the time of application and as being in a spousal relationship with each other at the time of decision.

    The nature of the persons’ commitment to each other

46. The Tribunal has considered the evidence provided in relation to the nature of the persons’ commitment to one another including the duration of the relationship, the length of time they have lived together, the degree of companionship and emotional support they draw from each other and whether they see the relationship as long term.

47. The evidence was that the applicant and the sponsor have now been in a relationship for nearly five years and that they have not lived separately and apart on a permanent basis since January 2017.  The applicant and the sponsor married on 22 December 2018.

48. In his written statement the applicant referred to the sponsor having wrist surgery in 2017 and said sometime after the surgery he took the sponsor to Kalbarri for a break because she needed it. He said she was only able to use one hand and he had to cut her meat for her and help her dress. In her written statement the sponsor gave consistent evidence regarding her wrist surgery and the Kalbarri trip. She also said the applicant helped her shower and dress, washed and dried her hair and cut up her food.

49. In her written statement the sponsor said she had further wrist surgery in August 2017 and said the applicant changed his work schedule so he could be there for her. She said he took her to Bethesda Hospital and he waited all day with her until her operation and was waiting when she came out of recovery. She said she was not able to drive for six weeks and so the applicant drove her to occupational therapy and surgeon appointments and did everything for her until it was time for him to go back to work. She said she found she could not cope on her own and after she contacted the applicant to let him know that she needed his help, he came home straightaway and looked after her.

50. In her written statement the sponsor said:

    Our relationship has gone from strength to strength during the almost 5 years we have been together. We work well together and have lots of fun. We both enjoy the beach and walking our dog. We've had some great holidays and short breaks away, eg a trip to Albany whale watching. I was visiting my parents last Christmas (2020) for 3 weeks while Eroni was working, and on my return he surprised me. He was to have gone back to work but as we hadn't seen each other for 3 weeks, he delayed his return and had arranged for us to spend the night at the new Hilton in Elizabeth Quay.

    Our marriage is grounded in love and based on trust and appreciation of one another. We work together to achieve goals and to live a life of harmony and purpose. Due to Covid-1.9 and waiting for the resolution to this appeal, we have riot been able to visit Fiji yet. We look forward to being able to do this together in the future as I would dearly love to meet Eroni's mother, and his children. We will celebrate our marriage in a traditional ceremony during this time also, We are also looking forward to beginning the planning to purchase our own home, and to travel.

51. In his statutory declaration the applicant said he prays for the sponsor every morning and when he is away at work he sends her a message and photos of sunrise in the Pilbara. He said he and the sponsor really enjoy being together and said they have lots of good times and lots of laughs.  He said he and the sponsor talk to each other about work and said he helps her put things into perspective. The applicant said he gives the sponsor emotional support by phone when he is working away. He said he likes to surprise the sponsor by returning from work early. In her statutory declaration the sponsor provided consistent evidence regarding the nature of the parties’ commitment to each other. She also said that when the applicant is working away they speak most evenings by phone.

1. On the basis of the evidence before it the Tribunal finds that at the time of application the parties were living together and that they saw their future as a long term one. In reaching this determination the Tribunal placed significant weight on the evidence of the social aspects of the relationship and the nature of the parties’ commitment to each other.

2. Regarding whether the requirements of s.5CB(2) were met at the time of application, the Tribunal decided:

   ·the parties were not married;

   ·the parties lived together or did not live apart on a permanent basis;

   ·they were not related by family;

   ·they had a mutual commitment to a shared life together to the exclusion of others; and

   ·the relationship was genuine and continuing.

3. Therefore, the applicant meets cl.820.211(2)(a). There is no evidence indicating that the applicant does not satisfy the sub-criteria in cl.820.211(2)(c) or (d). 

   Are the additional criteria for a de facto relationship met?

4. Persons claiming to be in a de facto relationship for a partner visa must also meet the additional criteria in r.2.03A. These are: that the couple are both at least 18 years of age; and with limited exceptions, that the de facto relationship must have existed for at least the period of 12 months ending immediately before the date of the application, unless the applicant can establish compelling and compassionate circumstances for the grant of the visa. The requirement that the relationship existed for 12 months prior to the application does not apply in certain circumstances where the sponsor is or was a humanitarian visa holder, or for applications made on or after 9 November 2009, where the de facto relationship has been registered under a relevant State or Territory law: r.2.03(4), (5). These exceptions do not apply in the present case.

5. The Tribunal accepts on the evidence before it that the applicant and the sponsor were over the age of 18 at the time of application. Therefore, the applicant satisfies r.2.03A(2).

6. The Tribunal then considered r.2.03A(3). In his Application for migration to Australia by a partner the applicant indicated he and the sponsor committed to a shared life together to the exclusion of all others on 1 January 2017. The evidence from the parties’ respective housemates (Ms Manners and Mr Chong Sue) is consistent with this evidence. The application was made on 28 February 2018 which was more than 17 months after the parties first met and more than 14 months after they commenced a de facto relationship. 

7. Accordingly, the Tribunal is satisfied that the de facto relationship existed for at least the 12-month period ending immediately before the date of the application.

8. For these reasons the Tribunal is satisfied that the applicant meets the additional criteria prescribed in r.2.03A.

9. The Tribunal is also satisfied that the parties continue to have a mutual commitment to a shared life together to the exclusion of others and that the relationship is genuine and continuing.

10. Regarding whether the requirements of s.5F are met at the time of decision, the Tribunal decided:

    • the parties are married to each other under a marriage that is valid for the purposes of the Act;
    • they are living together or not living separately and apart on a permanent basis;
    • they have a mutual commitment to a shared life as husband and wife to the exclusion of others; and
    •  that the relationship is genuine and continuing.

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

12. As such 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

13. 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) of Schedule 2 to the Regulations

    ·cl 820.221 of Schedule 2 to the Regulations

    ·reg 2.03A

    Christine Kannis
    Member

    
    

    ATTACHMENT - Extract from Migration Regulations 1994

    1.09A     De facto partner and de facto relationship

    (1)For subsection 5CB (3) of the Act, this regulation sets out arrangements for the purpose of determining whether 1 or more of the conditions in paragraphs 5CB (2) (a), (b), (c) and (d) of the Act exist.

    Note 1     See regulation 2.03A for the prescribed criteria applicable to de facto partners.
    Note 2     The effect of subsection 5CB (1) of the Act is that a person is the de facto partner of another person (whether of the same sex or a different sex) if the person is in a de facto relationship with the other person.
    Subsection 5CB (2) sets out conditions about whether a de facto relationship exists, and subsection 5CB (3) permits the regulations to make arrangements in relation to the determination of whether 1 or more of those conditions 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 in a de facto relationship with 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).

    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).