Silvia (Migration)

[2021] AATA 1429

Silvia (Migration) [2021] AATA 1429 (14 May 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss  Silvia

CASE NUMBER:  1902059

HOME AFFAIRS REFERENCE(S):          BCC2018/854002

MEMBER:Steven Griffiths

DATE:14 May 2021

PLACE OF DECISION:  Adelaide

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; and

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

Statement made on 14 May 2021 at 12:18pm

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – de facto relationship for 12 months before application made – now validly married and applicant pregnant – financial and social aspects of relationship – household responsibilities change with sponsor’s fly-in/fly-out work roster – nature of commitment – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5CB(2), 5F(2)(a), 65
Migration Regulations 1994 (Cth), r 1.15A, Schedule 2, cls 820.211(2), 820.211(1)

CASE
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, Ms. Silvia, applied for the visa on 22 February 2018 on the basis of her relationship with her sponsor, Mr. Adam Peter Jacques. 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 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 820.221(2) because the parties had not been in a de facto relationship for 12 months prior to the lodgement of the visa application.

4. The parties were assisted by their registered migration agent, Ms. Kristiana Ducaj, of Aus Migration Consultancy.

5. The applicant was invited to appear before the Tribunal on 13 May 2021, but following a detailed review of the submission and associated information received from the parties 10 May 2021, the Tribunal determined that a decision could be made on the information provided without the requirement to hold a hearing.  

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The Tribunal has taken into consideration all the evidence in the Department of Home Affairs file and the Tribunal file including information provided by the applicants prior to what had been an intended hearing.  

   ISSUE

8. The issue in the present case is whether the applicant is the de facto partner, as defined in s.5CB of the Act, of the sponsor at the time of the visa application and subsequently as a result of their marriage on 10/10/20 if the applicant is, at the time of the decision, the spouse, as defined in s.5F of the Act, of the sponsor.  

   BACKGOUND OF THE EVIDENCE

9. Ms. Silvia was born in Indonesia in 1989. Her parents, born 1958 & 1960, and her 2 brothers and a sister, born 1991, 1992 & 2000, all live in Indonesia. She was in Australia on a Graduate 485 Visa, granted 3/3/16 and to cease 3/3/18, when she met the sponsor and has been a series of bridging visas from 23/2/18. 

10. Mr. Jacques was born in Australia in 1982. His parents, born 1956 & 1957, and he has 2 brothers, born in 1979 & 1981, all living in Australia.

    INFORMATION TO THE TRIBUNAL

11. Since the Department made a decision, the parties have provided further information to the Tribunal including:-

    Parties proof of address items - Medibank Health Insurance 22/3/19 & 19/12/19, Virgin Wines 15/7/19, BUPA Health membership, 5/7/19, Flybuys 12/2018 & 06/2019 & 08/2019, Hello Fresh membership, Estee Lauder purchases 03/2019 & 11/2019

    Parties Relationship Registration, SA Consumer and Business Services, 14/2/19

    Parties evidence of joint travel – 07/2019 & 10/2019

    Pullman Hotel, Adelaide, undated – documents relating to intention of parties to hold wedding reception 9 October 2020.

    Photos of parties – sponsor 37^th birthday, at beach, Xmas 2019 present, OzAsia Lantern Festival, with brother and family of sponsor, parents of sponsor, sponsor grandmother birthday, gifts from sponsor to applicant, trip to Indonesia including sightseeing, wedding of friend of applicant and with friends and family, trip to Western Australia, ballooning in Barossa, McLaren Vale 2019 and with engagement ring.

    Applicant Medicare Card

    Applicant South Australian driver’s license

    Migration Agent submission, 30/4/21

    Bank details for 2020 with wedding costs highlighted

    Parties proof of address documents

    Parties accommodation bookings for trip to Indonesia September and October 2019

    Women’s and Children’s Hospital, confirmation of applicant pregnancy, birth expectation 28/9/21

    Large number of photos of preparation for parties wedding, in the garden of sponsor parents, on 10 October 2020 and the wedding and reception dinner

    Photos of the parties in suburban Adelaide and regional South Australia and the parties dining out and socialising with family and friends

    Is the sponsor an Australia citizen, and Australian permanent resident or an eligible New Zealand citizen?

12. Clause 820.211(2)(a) requires that at the time the visa application was made the applicant is the spouse or de facto partner of an Australian citizen or Australian Permanent Resident or an eligible New Zealand citizen. The Tribunal accepts the sponsor being an Australian Citizen by birth.        

    Whether the parties are in a spouse or de facto relationship

13. 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).

14. '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).

15. In forming an opinion whether they are in a spouse or de facto relationship consideration must be given 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.1.09A(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.

    Are the parties validly married?

16. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship.

17. The Tribunal notes the visa application was lodged on the basis of the parties being in a de facto relationship, with the Delegate making the assessment that the parting had not been in a relationship for the required minimum 12-month period prior to the lodgement of the application.

18. The Tribunal notes the email of the registered migration agent on 4/2/20 that the parties had become engaged on 19/11/19 and intended to marry on 9/10/20.

19. The Tribunal accepts the documented and photographic evidence of the parties marrying on 10/10/20, with an Australian Certificate of Marriage provided. There is nothing to suggest that the marriage is not valid. 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?

20. The Tribunal has considered the evidence relevant to the matters in r.1.15A. The Tribunal took into account the available documentary evidence contained on the Department’s file and the evidence provided to the Tribunal.

    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 expense

21. The Tribunal accepts the documented evidence that the home of the parties was purchased by the sponsor early in their committed relationship while the visa status of the sponsor was unsure, and determines at the time of the visa application and this decision they do not have joint ownership of real estate or other major assets.

22. The Tribunal notes the documented evidence of the future intention of the parties to purchase an investment property.

23. The Tribunal determines from the documented evidence of the parties that at the time of the visa application and this decision, the parties do not have any joint liabilities.

24. The Tribunal accepts the documented  evidence that the sponsor works as a fly in / fly out worker on a 2 week on / 1 week off roster system.    

25. The Tribunal accepts the documented evidence that the applicant works for a major hotel in South Australia.

26. The Tribunal accepts the documented evidence of the bank accounts operated by the parties, being sole name accounts and a long term joint name account, with the home repayment costs being met by the sponsor and for which he uses interest offset accounts, all his name only, with transfers in to assist with these costs by the applicant, and the account used for the payment of costs associated with their wedding in October 2020, and that both are contributing to the living costs of the parties, and determines at the time of the visa applicant and this decision the parties pool finances for major commitments and the sharing of day-to-day household expenses.

27. The Tribunal determines from the documented evidence that at the time of the visa application and this decision, none of the parties has a legal obligation to the other.

    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

28. The Tribunal accepts the documented evidence of the parties that they do not yet have a child, but indeed having children has been part of their plans for some time and while they themselves did not believe being married was important to the live long commitment they have made to each other, the religious beliefs of the mother of the applicant was a prompt for them to get married to ensure that children were born in a lawfully married relationship.

29. The Tribunal accept the documented evidence that the applicant is pregnant with an expected delivery date of 24/9/21.

30. The Tribunal accepts the documented evidence that in the early period of their relationship they lived in different homes while spending much of their time together, and then moved into a joint home purchased by the sponsor, and have been living together since early 2017.

31. The Tribunal accepts the documented evidence that with the work roster of the sponsor being a 2 week on, 1 week off that this creates two systems of housework, one in which the applicant is by herself and one in which the sponsor and applicant share responsibilities.

32. The Tribunal accepts the documented evidence that with the pregnancy of the applicant, this has created some housework responsibility challenges for her on the 2 weeks that the sponsor is away, with the other family members of the sponsor providing assistance during these periods.

33. The Tribunal determines that the at the time of application and this decision the parties share the responsibility for housework.

    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

34. The Tribunal accepts the documented evidence of the contact the parties have with  family and friends as an initially de facto relationship and determines, at the time of application, the parties represented themselves to other people as being de facto partners.   

35. The Tribunal accepts the documented and photographic evidence of the wedding of the parties on 10 October 2020 and determines, at the time of this decision, the parties represent themselves to other people as being married.

36. The Tribunal accepts the documented and photographic evidence that the parties families and their individual and collective friends, at the time of the visa application and this decision, are supportive of the de facto relationship and now marriage. 

37. The Tribunal accepts the documented and photographic evidence of the trip made by the parties in 2018 to visit the family and friends of the sponsor in 2018.

38. The Tribunal accepts the documented and photographic evidence that the parties have planned and undertaken a large number joint social activities since the relationship began in November 2016 and determines, at the time of the visa application and this decision, the parties plan and undertake joint social activities.

    Nature of the commitment to each other 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.

39. The Tribunal accepts the documented and photographic evidence of the parties first making contact in November 2016, being in a committed defacto relationship since February 2017 and marrying on 10 October 2020.

40. The Tribunal accepts the documented evidence that the parties have lived together since early 2017, and while work requirements of the sponsor create 2 week periods of him being away, determines at the time of the visa application and this decision the parties have lived together in excess of 4 years.

41. The Tribunal accepts the documented evidence of the parties of the support the parties have provided to each other and determines, at the time of application and this decision, a high level of companionship and emotional support is provided by each of the parties to the other.

42. The Tribunal accepts the documented evidence of the relationship and determines, at the time of application and this decision, the parties have an ongoing commitment to each other, the relationship, their marriage and family.  

43. The Tribunal considered all the evidence on the circumstances of the parties and determines the evidence supports a finding that at the time of the application and this decision, the parties have had and continue to have a mutual commitment to a shared life together as a couple to the exclusion of all others, with the relationship genuine and continuing and they have and continue to live together.

44. On the basis of the above the Tribunal is satisfied that the requirements of s.5CB(2) was met at the time of the visa application and s.5F(2) is met at the time of this decision. The Tribunal is further satisfied the sponsor is not prohibited by subclause (2B) from being a sponsoring partner.

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

46. 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

47. 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; and

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

    Steven Griffiths
    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).