Sagris (Migration)

[2021] AATA 3743

Sagris (Migration) [2021] AATA 3743 (9 September 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Nicolaos Sagris

VISA APPLICANT:  Ms Thi Truc Thanh Huynh

CASE NUMBER:  1825978

DIBP REFERENCE(S):  BCC2017/3144315

MEMBER:M. Edgoose

DATE:9 September 2021

PLACE OF DECISION:  Melbourne

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(2) of Schedule 2 to the Regulations; and

·cl.309.221 of Schedule 2 to the Regulations.

Statement made on 09 September 2021 at 1:16pm

CATCHWORDS
MIGRATION –Partner (Provisional) (Class UF) visa - subclass 309 – parties have two children together – copy of Marriage Certificate provided – parties are validly married – applicants are currently in a genuine spousal relationship– decision under review remitted

LEGISLATION
Migration Act 1958, ss 5F, 65, 360
Migration Regulations 1994, r 1.15, Schedule 2, cls 309.211, 309.221

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 29 August 2018 to refuse to grant the visa applicant a Partner (Provisional) (Class UF) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 29 August 2017 on the basis of 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 visa applicant did not satisfy cl.309.211(2) because there was insufficient evidence to demonstrate a spousal relationship.

4. The review applicant was represented in relation to the review. The Tribunal considered all the material before it and determined that no hearing in this matter was required, pursuant to s360(2)(a) of the Act.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in the present case is whether the applicant and sponsor are in genuine and continuing spousal relationship.

   Whether the parties are in a spousal relationship

7. 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. In the present case the visa applicant claims to be the spouse of the review applicant who is an Australian citizen.

8. ‘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?

9. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. The applicant provided the Tribunal a copy of the marriage certificate showing the marriage took place in Abbotsford, Victoria, Australia on 27 June 2018. 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?

   Financial aspects of the relationship

10. The applicant provided the Tribunal with evidence of joint bank statements from 2018-2021, as well as vehicle expenses and joint car insurance, health insurance, tax returns, payslips, superannuation and various other documents evidencing the financial aspects of the relationship. On the whole of the evidence, the Tribunal is satisfied that the parties pool their financial resources, as well as share their day-to-day household expenses.

    Nature of the household

11. The applicant submitted evidence of utility bills including bills in relation to gas, water, electricity and phone bills, indicating a joint residence between the parties. The applicant further submitted evidence of joint car insurance, health insurance, and a statutory declaration. The Tribunal has reviewed this evidence and accepts that the parties live in the sponsor’s father’s house and contribute financially to the running of the household. The Tribunal is satisfied that the parties live together with their children and share responsibility of their children and of the household as would be expected from a genuine couple.

12. The Tribunal is satisfied that the parties share a joint household together.

    Social aspects of the relationship

13. The applicant provided the Tribunal with evidence of the relationship in the form of several statutory declarations from friends and the family of the parties. On this basis, in conjunction with the remainder of the evidence provided, the Tribunal is satisfied that the parties represent themselves to others as being in a genuine and ongoing relationship. The Tribunal is further satisfied that the friends and relatives of the parties see the relationship as genuine and ongoing.

    Nature of persons’ commitment to each other

14. On 6 August 2021, the Tribunal wrote to the applicant requesting that the applicant provide certified copies of the birth certificates of both their children, have been advised by the applicant that the applicant and sponsor had one child and their second child was due to be born in early August 2021.

15. The applicant provided the Tribunal with evidence of the marriage between the parties, as well as photographs of the wedding ceremony. There are also documents and photographs of the baptism of one of the applicant’s children, indicating that the parties share joint responsibility for the care and support of the children, and that the parties draw companionship and emotional support from each other.

16. The Tribunal is satisfied that the parties have two children together and live as a family. The Tribunal notes that the parties have been living together for an extended period of time and is satisfied that the nature of the persons’ commitment to each other is commensurate with that of a genuine and ongoing relationship.

17. On the basis of the above the Tribunal is satisfied that the requirements of s.5F(2) are met at the time the visa application was made and the time of this decision.

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

19. 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

20. 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(2) of Schedule 2 to the Regulations; and

    ·cl.309.221 of Schedule 2 to the Regulations.

    M. Edgoose
    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).