Shah (Migration)

[2022] AATA 4508

Shah (Migration) [2022] AATA 4508 (23 November 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Shailja Hareshbhai Shah

REPRESENTATIVE:  Mr Ganesh Krishnan (MARN: 1678495)

CASE NUMBER:  1918336

HOME AFFAIRS REFERENCE(S):          BCC2018/2091226

MEMBER:Kira Raif

DATE:23 November 2022

PLACE OF DECISION:  Sydney

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)(a) of Schedule 2 to the Regulations

·cl 820.221(1)(a) of Schedule 2 to the Regulations

Statement made on 23 November 2022 at 11:18am         

CATCHWORDS
MIGRATION –Partner (Temporary) (Class UK) visa – Subclass 820 –parties validly married – applicant  and sponsor have joint ownership of assets and joint liabilities – mutual commitment to a shared life together – parties’ strong desire to conceive their own child –credible and honest witness –– decision under review remitted

LEGISLATION
Migration Act 1958, ss, 5F, 65
Migration Regulations 1994, r 1.15, 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 is a national of India, born in October 1982. She applied for the visa on 14 May 2018 on the basis of her relationship with her sponsor. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl 820.211 because the delegate was not satisfied the applicant was the spouse of het sponsor. The applicant seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal on 23 November 2022 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor. The applicant was represented in relation to the review. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   Relevant law

4. At the time the application was made, 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).

5. 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 claims to be the spouse of the sponsor who is an Australian citizen.

6. ‘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 parties’ household and their commitment to each other as set out in reg 1.15A(3), which is extracted in the attachment to this decision. Each of the specific matters contained in reg 1.15A(3) are effectively questions which must be answered: He v MIBP [2017] FCAFC 206.

   Are the parties validly married?

7. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. The applicant provided with her application a copy of the marriage certificate indicating she and the sponsor married in March 2018. There is nothing to suggest the marriage is not valid. The Tribunal is satisfied that 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?

8. The applicant provided a number of documents addressing various aspects of the relationship to the delegate and there is considerably more evidence before the Tribunal. The Tribunal has also had the benefit of the parties’ oral evidence and found them to be truthful and credible witnesses.

9. The applicant  and sponsor claim to have met around 2017 and state that their families were known to each other as they live in the same community and have similar background. They had regular contact for over a year prior to deciding to get married in March 2018. About 200 guests attended their wedding.

10. With respect to the financial aspects of the relationship, evidence before the Tribunal is that the applicant  and sponsor operate a joint account where both salaries are deposited and which is used for all their expenses. Evidence of this is before the Tribunal. They also own multiple properties, which were purchased together and are in joint names and they have joint responsibilities for the repayment of the mortgage.

11. The Tribunal is satisfied that the applicant  and sponsor have joint ownership of assets and joint liabilities. The Tribunal is satisfied they pool their financial resources and share day to day household expenses.

12. The applicant  and sponsor gave consistent evidence about their household. The Tribunal is satisfied they have established a joint household and share the housework. The Tribunal also accepts their evidence that they are trying to conceive a child. The Tribunal accepts that they hope to maintain joint responsibilities for care and sport of children in the future.

13. There are statements from third parties that attest to the relationship being genuine. The applicant and sponsor spoke about spending time with friends and attending and arranging social occasions. The Tribunal is satisfied they represent themselves to others as being married to each other. The Tribunal also accepts their evidence that they maintain a close relationship and regular contact with each other’s family members. The applicant  gave an example of the family travelling together when the sponsor’s sister visited Australia in the past. The Tribunal accepts that the relationship is recognised and supported by family members. The Tribunal is satisfied the applicant  and sponsor plan and undertake joint social activities.

14. The marriage has been in existence for over four and a half years. The Tribunal is satisfied that in that time the applicant and sponsor provided companionship and support for each other. Both spoke about the instrumental role the applicant had played in caring and supporting the sponsor’s mother during her recent ill-health and the ongoing support she provides to her. The Tribunal is satisfied the applicant  and sponsor view the relationship as a long term one and are both committed to it.

15. Having regard to all the circumstances of this relationship, the Tribunal is satisfied the applicant  and sponsor have a mutual commitment to shared life to the exclusion of others. The Tribunal is satisfied their relationship is genuine and continuing. The Tribunal is satisfied they live together. 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. Therefore the applicant meets cl 820.211(2)(a) and cl 820.221(1)(a).

    Conclusion

16. 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

17. 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)(a) of Schedule 2 to the Regulations

    ·cl 820.221(1)(a) of Schedule 2 to the Regulations

    Kira Raif
    Senior Member