Royal (Migration)

Royal (Migration) [2019] AATA 3708 (25 June 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Mr Royall Royal
VISA APPLICANT:  Mrs Sanam Shreshta
CASE NUMBER:  1824418
DIBP REFERENCE(S):  2018/4448552 2018/4448553 BCC2016/4163968
MEMBER:Steven Griffiths
DATE:25 June 2019
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal remits the application for a Partner (Provisional) (Class UF) visa for reconsideration, with the direction that the 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 25 June 2019 at 4:30pm
CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) – Subclass 309 (Spouse (Provisional)) – genuine spousal relationship – photographic and oral evidence – decision under review remitted

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

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 14 June 2018 to refuse to grant the visa applicant a Partner (Provisional) (Class UF) visa under s.65 of the Migration Act 1958 (the Act).
The visa applicant, Ms. Sanam Shrestha, applied for the visa on 9 December 2016 on the basis of her relationship with her sponsor, Mr. Royall Royal. 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.
The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.309.211 because the delegate was note satisfied that the visa applicant was the spouse, as defined in s.5F of the Act, of the sponsor.
The sponsor appeared before the Tribunal on 17 June 2019 to give evidence and respond to questions. The Tribunal also received oral evidence from the visa applicant by telephone from Nepal and the landlord of the sponsor. The hearing was conducted with the assistance of an interpreter.
The sponsor was represented by his registered migration agent.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The Tribunal has taken into consideration all the evidence in the Department of Immigration file and the Tribunal file, additional information from the Migration Agent and the evidence from the Tribunal hearing.
ISSUE
The issue is whether the visa applicant is the spouse, as defined in s.5F of the Act, of the sponsor.
BACKGROUND ON THE EVIDENCE
Mr. Royal was born in Nepal in 1989. His parents, surname Shani, both born in 1961, live in Nepal. He has a brother, born 1982, and a sister, born 1992, living in Nepal. He arrived in Australia in August 2008 and became an Australian citizen on 3 May 2016. He was married from 3 May 2010, separated from 2014 and divorced 11 March 2016, with no children from the marriage.
Ms. Shrestha was born in Nepal in 1989. Her parents, born 1957 and 1964, are alive and living in Nepal. She has one brother, born 2002, living with his parents.
INFORMATION TO THE TRIBUNAL
Since the Department made a decision the sponsor has provided further information to the Tribunal including:-
Statutory Declaration by sponsor dated 5/12/16
Statement by Bishu Mahat witnessed 6/6/19
Affidavit by Eugenia Petropoulos, landlord of sponsor, dated 5/6/19
Affidavit by Rupa Syangtan Lama, friend visa applicant dated 6/6/19
Affidavit by Radhika Shrestha, mother of visa applicant, dated 6/6/19
Affidavit by Sunita Shrestha, younger sister of visa applicant, dated 6/6/19
Sponsor Australian citizenship 3/5/16
Sponsor divorce order from ex-wife, Sudha Baskota Sharma, dated 10/2/16
Visa applicant father death certificate – Nepal – 18/5/17
Visa applicant short stay tourist visa application dated 11/10/18 & denied 19/11/18
Air flight records 2017 & 2019 for sponsor
Commonwealth Bank joint account statement dated 11/10/18
Money order to visa applicant of $ 1030 on 23/2/16
Reliance Bank , Nepal, joint account statement 22/11/16
Facebook records – 50 pages – 25/5/18 to 11/6/18 as indication of contact
Messenger – November and December 2015
38 Pages of call records and some screen shots of photos
176 photos
Money Transfers – 5/1/18 $3000, 9/4/18 $1490, 22/5/18 $ 241, 31/7/18 $360, 8/10/18 $485, 30/1/19 $252, 28/3/19 $250 – total of $6,078 over 15 months.
Is the sponsor an Australian citizen?
Clause 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. The Tribunal was provided with evidence, which it accepts, of a certificate of Australian citizenship, dated 3 May 2016, for the sponsor and finds the sponsor to be an Australian citizen.
Whether the parties are in a spouse or de facto relationship
‘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?
At the time the visa application was made the visa applicant provided evidence of being married to the sponsor with a Certificate of Marriage from the Government of Nepal as evidence of their marriage on 24 June 2016.
The Tribunal has regard to the document and finds that the parties are married to each other at the time of the visa application and the decision, with the marriage valid for the purposes of the Act as required by s.5F(2)(a).
CLAIMS AND FINDINGS
Financial aspects of the relationship that must be considered include:-
(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
The Tribunal accepts that at the time of the visa application and this decision, no real estate or other major assets are held by the parties.
The Tribunal accepts that at the time of the visa application and this decision, no joint liabilities are held by the parties.
The Tribunal accepts that at the time of the visa application and this decision, none of the parties has a legal obligation with regard to the other.
The Tribunal accepts the evidence of a joint bank account being operated by the parties to pay for household needs when the visa applicant was in Australia for six months during 2017 and determines this represents the pooling of financial resources.
The Tribunal accepts the evidence of money transfers from the sponsor to the visa applicant in 2016, throughout 2018 and early 2019 and determines this represents the pooling of financial resources.
The Tribunal accepts the evidence of an investment account, in joint names, in a bank in Nepal and determines this represents the pooling of financial resources.
The sponsor works as a taxi driver, has a small multi-media business and has previously operated a carpet cleaning business.
The visa applicant is an accountant, currently works managing the finances for a restaurant and previously worked for a finance company.
The Tribunal accepts that the parties live in different countries and they do not share day-to-day household expenses, so gives this little weight.
Nature of the household aspects that must be considered include:-
(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
The Tribunal accepts that the sponsor and visa applicant do not have children so they have no responsibility for the care and support of children, while noting that the parties have spent some time caring for the child of the sister of the visa applicant.
The sponsor lives by himself in a rented home. The owner of the home gave oral evidence to the Tribunal, which the Tribunal accepts, of her observations of the relationship of the parties for the six months the visa applicant was in Australia in 2017.
The visa applicant lives with her mother and younger brother.
The Tribunal accepts the evidence of the parties that the visa applicant in Australia will live at the home of the sponsor.
The Tribunal accepts the oral evidence, confirmed independently by the parties, of the shared household roles during their time together in Adelaide and Nepal.
The Tribunal accepts that the parties since being married in June 2016 have lived together in Nepal for 58 days and in Australia for approximately 180 days, but they live in different countries and do not have a full-time household, so gives this little weight.
Social aspects of the relationship that must be considered include:-
(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
The Tribunal accepts the photographic and oral evidence, confirmed by the parties independently, of during their time together planning and undertaking joint social activities with friends in Nepal and Australia.
The Tribunal accepts the evidence of the parties that they represent themselves to other people as being married to each other.
The Tribunal accepts the written evidence of family and friends that they are supportive of the relationship and marriage.
The Tribunal accepts the evidence, confirmed independently, of the names of the close friends of each of the parties being known to the other.
The Tribunal accepts the evidence of the statements and registers provided confirming contact made by the parties several times daily.
The Tribunal determines, at the time of application and this decision, that within the limits of separation and communication the parties are in daily contact with each other, have a spousal relationship and have a complete knowledge of what the other does every day.
Nature of the commitment to each other areas that must be considered include:-
(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.
The Tribunal accepts, from the evidence, that the parties first met in Nepal in mid-2013, with the sponsor making contact from early 2014, the relationship developing, becoming engaged and marrying in Nepal in June 2016.
The Tribunal accepts, from the evidence provided, that since being married the parties have lived together, in Nepal and Australia, for approximately 238 days.
The parties gave oral evidence independently, which the Tribunal accepts, of plans for their future together in Australia including work opportunities the visa applicant will pursue.
The Tribunal accepts that the parties provide companionship and emotional support to each other. By way of example, the Tribunal noted that the father of the visa applicant died in early 2017 and both parties in oral evidence highlighted the support provided by the sponsor to the visa applicant and her family.
The Tribunal accepts the oral evidence of the parties that they see the relationship as being a long-term one.
The Tribunal determines that the parties, at the time of the visa application and this decision, have had and continue to have an ongoing commitment to each other.
Other circumstances of the relationship
The Tribunal accepts that the parties originally met when the sponsor was married to another person, but was separated from his ex-wife, with the divorced occurring in March 2016.
The Tribunal accepts the oral evidence of the parties, confirmed independently, of the relationship breakdown between the sponsor and his parents due to cultural issues with the family of the visa applicant.
The Tribunal considered all the evidence about the circumstances of the parties and determines that the evidence supports a find that, at the time of application and this decisions, the parties had had and continue to have a mutual commitment to a shared life together as a married couple to the exclusion of all others, with the relationship genuine, continuing and long term.
The Tribunal accepts that the parties have been in a committed relationship since late 2014, engaged and then married in June 2016 and do not live separately and apart on a permanent basis.
On the basis of the above the Tribunal is satisfied that the requirements of s.5F(2) are met at the time of the visa application and this decision.
Therefore the visa applicant meets cl.309.211 and cl.309.221.
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
The Tribunal remits the application for a Partner (Provisional) (Class UF) visa for reconsideration, with the direction that the 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
Steven Griffiths
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).

[2019] AATA 3708

25 June 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Remedies