Shindome Laffan (Migration)

[2019] AATA 6762

Shindome Laffan (Migration) [2019] AATA 6762 (20 December 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Kana Shindome Laffan

CASE NUMBER:  1725728

HOME AFFAIRS REFERENCE(S):          BCC2016/2380236

MEMBER:Adrienne Millbank

DATE:20 December 2019

PLACE OF DECISION:  Brisbane

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 of Schedule 2 to the Regulations

·cl.820.221 of Schedule 2 to the Regulations

Statement made on 20 December 2019 at 1:51pm

CATCHWORDS

MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – genuine and continuing relationship – de facto relationship for 12 months prior to the application – mutual superannuation, wills and insurance arrangements – purchased property with joint mortgage liability – joint bank and utilities accounts – shared family activities – marriage – decision under review remitted          

LEGISLATION

Migration Act 1958, ss 5, 65
Migration Regulations 1994, Schedule 2, cls 801.211, 801.221; r 1.15

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 Immigration and Border Protection on 6 October 2017 to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant was born in Japan in 1985 and is 34 years old at the time of decision. She first travelled to Australia in 2000 on an Electronic Travel Authority (ETA) Tourist (Subclass 976) visa, and returned in 2005 on another ETA (Subclass 976). She returned again on 24 April 2012 on a Working Holiday (Subclass 471) visa, and was subsequently granted three Student (Subclass 572) visas.

3. The sponsor was born in Brisbane in 1988 and is 31 at the time of decision. The parties claim they first met in November 2014, entered into a committed relationship in December 2014, and entered into a live-in, de facto relationship in March 2015.

4. The applicant applied for the visa on 16 July 2016 on the basis of being in a de facto relationship with her sponsor. As noted below, the parties married on 29 September 2018.

5. At the time of application, 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 (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.

6. The Delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.820.211(2). The Delegate considered the evidence provided insufficient to demonstrate that the parties were in a genuine and continuing relationship, and therefore found that the applicant was not the de facto partner of the sponsor, as defined under s.5CB of the Act. The Delegate further was not satisfied that the parties had been in a de facto relationship for 12 months prior to the date of application, or that there were compelling reasons to waive this requirement.

7. The applicant was represented in relation to the review by her registered migration agent.

8. Information and evidence was provided to the Tribunal that was not available to the Delegate, and in this case the Tribunal has made a decision on the material before it without inviting the parties to a hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in the present case is whether the parties were in a genuine relationship at the time of application and decision.

    Whether the parties are in a spouse or de facto relationship

11. 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 claimed at the time of application to be the de facto partner, and at the time of decision to be the spouse of the sponsor who is an Australian citizen by birth.

12. ‘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 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?

13. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. The parties provided a copy of their Queensland Marriage Certificate, certifying that they married in Newstead, Brisbane on 29 September 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

14. The applicant moved into the sponsor’s house in Manly West in March 2015. In their application forms the parties stated that the sponsor, as the main income earner at this time, paid most of their living costs, including the mortgage and utilities payments, while the applicant contributed a sum of AUD 80 towards ‘the household bills and mortgage’. Statements of transactions from the sponsor’s bank and credit card transactions from February 2015 to April 2016 show regular supermarket and other household shopping, and transfers of AUD 80 from the applicant.

15. Statements of the sponsor’s credit card transactions from March 2016 to October 2016 show regular supermarket and other food shopping. Statements of the applicant’s credit card transactions from March 2015 to December 2015 also show regular supermarket and other food and household shopping. In written statements at the time of application the parties stated that they do the shopping together. The sponsor’s credit card transactions show the purchase of a new dishwasher in November 2015. A statement from a car insurance company showed the applicant listed as a driver of the sponsor’s car in his policy for the year May 2016 to May 2017.

16. The applicant’s Form 80 (Character Assessment) indicates that she worked part-time from December 2012 to November 2015 as a waitress, completed her diploma-level studies in business and marketing in July 2016, and obtained employment in August 2016 as a sales associate with Vodaphone.

17. Copies of the parties wills, signed on 12 October 2017 were provided, showing each is named as the other’s executor, and that each has bequeathed their estate to the other. A statement was provided from the sponsor’s superannuation account, showing that the applicant was listed before the parties’ marriage as his 100 per cent binding beneficiary.

18. A copy of a sales contract was provided to the Tribunal, showing that in February 2019 the parties jointly purchased a property in Kingaroy.

19. The parties have joint ownership of a significant asset, a property; joint liability in the mortgage; and legal obligations owed to the other party arising from their marriage and wills. The Tribunal is satisfied on the evidence provided that the parties have pooled their financial resources and that they share day-to-day household expenses as a couple.

    Nature of the household

20. At the time of application the applicant provided a printout of her public transport record in 2016 and 2017, showing regular trips from and to Manly West.

21. Documents were provided dated from 2015 to 2019 identifying both of the parties as living at the same residential address, including the bank statements referred to above, utilities bills, letters from government agencies and the property sales contract.

22. In their application forms the parties stated that they divided the housework; that the applicant did more when the sponsor worked overtime; that the applicant did most of the cooking but that they liked to cook together; and that they also liked to shop together.

23. In statutory declarations signed in 2016 and 2017, family members and friends of the parties declare that they know the parties have lived together as a couple, in Manly West, since March 2015.

24. The parties do not have children.

25. The Tribunal is satisfied on the evidence provided that the parties have lived as a couple in the sponsor’s house since March 2015, and that they have shared the responsibilities of a joint household together. 

    Social aspects of the relationship

26. In their application forms the parties stated that the applicant spent the Christmas of 2014 with the sponsor’s family; the sponsor and the sponsor’s family members met the applicant’s father and sister when they visited Australia in July 2015; and the sponsor met the applicant’s family and friends in Japan when the parties travelled there in December 2015.

27. Photos were provided of the parties together in Australia and Japan, with family members and friends.

28. Statutory declarations signed in June 2016 were provided by friends of the applicant and her family, testifying that they met the sponsor in 2014 or 2015; knew that the parties had lived together since March 2014; and observed that they participated in social and family functions as a couple.

29. A lengthy and detailed statutory declaration signed on 1 July 2016 was provided by the sponsor’s mother, in which she described her meetings with the applicant’s father and sister, the parties’ lives and household routines as a couple, and the commitment she observed the parties have for each other and the relationship. She described how the applicant has been welcomed into the sponsor’s family, and how she herself was studying Japanese ‘to converse a little [in Japanese]’ with the applicant’s family. The Tribunal found the sponsor’s mother’s statement heartfelt and sincere, and gives it significant weight.

30. Printouts of Facebook entries from 2015 to 2017 show the parties presenting themselves as in a relationship, and as a couple. A copy of an invitation to the parties’ wedding ceremony in Newstead and reception in Woolloongabba was provided. Also provided were photos of the parties’ wedding, showing them together with family and friends.

31. The Tribunal is satisfied on the evidence provided that the parties have represented themselves to other people as being married to each other; that the  opinion of friends and acquaintances is that they are a married couple; and that they have planned and undertaken joint social activities as a couple.

    Nature of persons' commitment to each other

32. The parties claim as noted that they have been in a committed relationship since December 2014 and entered into a live-in de facto relationship in March 2015. They married on 29 September 2018. Their international movement records and receipts of travel bookings provided to the Tribunal show they have travelled together to and within Japan, and holidayed together as a couple within Australia including at the Sebel Pelican Resort in Pelican Waters.

33. In the application form the sponsor stated ‘[the applicant] and I developed a strong connection and soon I realised that I had fallen in love with her’. The applicant stated that she and the sponsor ‘have good chemistry’, and:  

    I might not be perfect for him, but I will never ever find anyone that loves me more than he does. I would like to stay with him for the rest of my life. I love him and he makes me very happy.

34. In photos provided to the Tribunal the parties appear happy and comfortable in each other’s company. Several of the declarants, friends of the applicant and her family in Japan who provided statutory declarations in 2016, describe the applicant as a serious, responsible and family-oriented person.

35. As noted, at the time of decision the parties have wills in place, and have married.

36. The Tribunal is satisfied on the material before it and the evidence provided that the parties have been in a genuine relationship since the applicant moved in with the sponsor in March 2015, that is, for nearly five years. The Tribunal is satisfied that the parties have provided and drawn companionship and emotional support from each other, and that they see the relationship as long-term.

37. The Tribunal finds that the parties have a mutual commitment to shared life to the exclusion of others; that they are in a genuine and continuing relationship; and that they live together or not separately and apart on a permanent basis.

38. 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.

39. Therefore the applicant meets cl.820.211(2)(a) and cl.820.221(1)(a).

40. The parties are both over 18, and the applicant is the spouse or de facto partner of the sponsor. Therefore the applicant meets cl.820.211(2)(c). The applicant was the holder of a substantive visa at the time of application, therefore she meets cl.820.211(2)(d). There is no information before the Tribunal to indicate that the sponsorship has not been approved by the Minister and is not still in force. Therefore the applicant meets cl.820.221(4).

41. Therefore the applicant meets cl.820.211 and cl.820.221.

42. 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

43. 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 of Schedule 2 to the Regulations

    ·cl.820.221 of Schedule 2 to the Regulations

    Adrienne Millbank
    Member

    
    

    ATTACHMENT - Extract from Migration Regulations 1994

    1.15A     Spouse

    (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).