Sinnett (Migration)

[2021] AATA 5064

Sinnett (Migration) [2021] AATA 5064 (22 December 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Garry Wayne Sinnett

VISA APPLICANTS:  Ms Lin Yu
Mr Qingyang Liu

REPRESENTATIVE:  Mr Ted Chen (MARN: 0851770)

CASE NUMBER:  1927579

DIBP REFERENCE(S):  BCC2018/3878928

MEMBER:Antoinette Younes

DATE:22 December 2021

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the applications for Partner (Provisional) (Class UF) visas for reconsideration, with the direction that the first named 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 22 December 2021 at 11:25 AM

CATCHWORDS

MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – genuine and continuing relationship – validly married – pooling of financial resources – joint social activities – emotional support through medical condition – member of the family unit – full-time studies – decision under review remitted          

LEGISLATION

Migration Act 1958, ss 5, 65
Migration Regulations 1994, Schedule 2, cls 309.211, 309.221; rr 1.03, 1.05, 1.12, 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 Home Affairs on 23 September 2019 to refuse to grant the visa applicants Partner (Provisional) (Class UF) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The first named visa applicant (the applicant) applied for the visa on 22 June 2018 on the basis of her relationship with the 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 (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 applicant did not satisfy cl 309.211(2).

4. The review applicant appeared before the Tribunal on 20 December 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant, the secondary applicant and two witnesses.  The review applicant was represented in relation to the review.

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 cl 309.211 is met.

   Whether the parties are in a spouse or de facto 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 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 review applicant who is 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 those 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 applicant’s and review applicant’s 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.

   Relationship background

9. The applicant first arrived in Australia on 9 February 2014 as the holder of a visitor visa, Subclass 600. She lodged a Subclass 835 (remaining relative) visa, sponsored by her mother. This application included the secondary applicant who is the applicant’s son, as a dependant. The Subclass 835 visa application is still pending.

10. The couple has provided evidence in support of their claim that they are married and registered their marriage on 19 February 2018. The review applicant is an Australian citizen who was previously married and divorced on 4 July 2011. The review applicant has two adult children.

11. The couple claimed that they met via a matchmaking agency, called Metro Personal Consultants. The applicant indicated that she became a member of the matchmaking agency in September 2016 and that the review applicant was introduced to her by the agency on 9 November 2016. The couple first met personally on 12 November 2016 and indicated that they confirmed their relationship two days later, namely on 14 November 2016. The applicant left Australia on 31 January 2017 and returned on 20 April 2017.  During that time, the couple maintained contact via We-chat.

12. In support of the visa and review applications, the couple provided documents including Form 888 witness statements, photographs of the couple together and with others, bank account statements, review applicant’s superannuation details, texts message records, joint loan documents, title search document, Opal activity statements, utility bills, chat records, hospital letter concerning the review applicant, and submissions.

    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 couple has provided a copy of their Marriage Certificate referring to the date of marriage of 19 February 2018.  On the evidence, the Tribunal finds 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 spousal relationship met?

    Financial aspects of the relationship – including joint ownership of assets; joint liabilities; extent of pooling of financial resources; any legal obligations owed to the other party; any sharing of day-to-day household expenses

14. The couple gave evidence and provided supporting documents that from June 2017 to February 2019 they lived at an address in Greenwich and from the end of February 2019 until now, they have lived at different addresses with the applicant’s parents and son. The couple has a joint investment property and joint ANZ and Commonwealth Bank accounts.  The review applicant has nominated the applicant as a beneficiary in his superannuation fund.

15. They both gave evidence that their respective salaries are paid into the joint account from which utility bills and other expenses are paid.

16. On the evidence, the Tribunal is satisfied that the financial aspects of the relationship are consistent with the couple being in a genuine spousal relationship.

    Nature of the household – including any joint responsibility for care and support of children; parties’ living arrangements; and any sharing of housework

17. The evidence before the Tribunal, including documentary evidence such as bills and Opal transactions show that the couple has been living together at various addresses from June 2017. Currently, they live with the applicant’s parents and son who is the secondary applicant.

18. They have provided evidence such as photographs depicting their daily life together including cooking and other activities.

19. The Tribunal is satisfied that the nature of the household including their living arrangements are consistent with being in a genuine spousal relationship.

    Social aspects of the relationship – including whether parties represent themselves to other people as being married to each other; the opinion of friends and acquaintances about the nature of the relationship; and any basis on which the persons plan and undertake joint social activities

20. There is supporting evidence before the Tribunal such as Form 888 statements, as well as the oral evidence of two witnesses supporting the couple’s claim that they represent themselves to other people as being married to each other. There are multiple photographs showing the couple with friends and acquaintances.

21. The review applicant gave evidence confirming that the applicant has met his two adult children and his parents.

22. The Tribunal is satisfied that the social aspects of the relationship are consistent with being in a genuine spousal relationship.

    Nature of persons’ commitment to each other – including duration of the relationship; the length of time they have lived together; degree of companionship and emotional support they draw from each other; and whether they see the relationship as long-term

23. On the evidence the Tribunal is satisfied that the couple has been together for a number of years and that they married in 2018. They continue to be in a spousal relationship.

24. In the course of the hearing both the applicant and the review applicant referred to the emotional support and mutual care. The review applicant gave evidence that due to a car accident in 2006, he suffered significant brain injury and he referred to the support provided by the applicant. They both expressed their love and compassion for one another.

25. The Tribunal is satisfied that the nature of the couple’s commitment to one another is consistent with being in a genuine spousal relationship.

    Any other circumstances of the relationship

26. The Tribunal observes that the delegate had a number of concerns about this relationship. The Tribunal is satisfied that since the refusal decision, the couple has continued to live together in a genuine and continuing relationship. The Tribunal questioned the couple extensively about the potential motive of the applicant, including to obtain an Australian visa and they both expressed strong views that this is a genuine relationship, not entered into for migration purposes. The Tribunal asked the applicant about the status of the application for the remaining relative visa and she stated that it is pending. She gave evidence that she has not told the review applicant about that application and explained that the issue never came up. The Tribunal has some concerns about the fact that the review applicant did not know of that pending application, but this concern is not sufficient to reach different conclusions on the above matters.

27. Having considered the above matters, the Tribunal finds that the parties have a mutual commitment to a 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. The review applicant is an Australian citizen.  The longevity of the relationship, and the cumulative evidence, support a finding the relationship meets the s 5F definition.   The Tribunal therefore finds that the requirements of cl 309.211(2) and cl 309.221 are met.

28. 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.

    The secondary applicant

    Is Mr Qingyang Liu a dependant as defined?

29. As a secondary applicant, Mr Liu is required to meet the definition of ‘member of the family unit’ which is defined in s 5(1) of the Act that refers to the Regulations. 

30. Regulation 1.12(2) provides that a person is a member of the family unit of another person (the family head) if the person is:

    ·the spouse or de facto partner of the family head;

    ·a dependent child of the family head or of their spouse or de facto partner;

    ·a dependent child of a dependent child of the family head or of their spouse or de facto partner (grandchild); or

    a relative of the family head or their spouse or de facto partner who does not have a partner, is usually resident in the family head’s household and is dependent on the family head.

31. ‘Dependent child’ is defined in reg 1.03 of the Regulations, which requires that the child or step-child must not be engaged, married or in a de facto relationship, and have not turned 18 or if they have turned 18 the child must be ‘dependent’ within the meaning of reg 1.05A, or be incapacitated for work due to loss of bodily or mental functions.

32. ‘Dependent’ has the meaning in reg 1.05A, namely:

    (1) Subject to subregulation (2), a person (the first person) is dependent on another person if: 

    (a) at the time when it is necessary to establish whether the first person is dependent on the other person: 

    (i) the first person is, and has been for a substantial period immediately before that time, wholly or substantially reliant on the other person for financial support to meet the first person’s basic needs for food, clothing and shelter; and

    (ii) the first person’s reliance on the other person is greater than any reliance by the first person on any other person, or source of support, for financial support to meet the first person’s basic needs for food, clothing and shelter; or

    (b) the first person is wholly or substantially reliant on the other person for financial support because the first person is incapacitated for work due to the total or partial loss of the first person’s bodily or mental functions.

33. The Tribunal explained to the review applicant that there could be an issue as to whether Mr Liu (date of birth 2 July 2000) is a dependant.

34. The review applicant, the applicant as well as the secondary applicant gave evidence that the secondary applicant has just completed a Bachelor of Architecture at the University of Sydney and that he has received a conditional offer to undertake a Master in Architecture, at the University of Sydney. They all gave consistent evidence that the applicant has been paying the university fees and giving the secondary applicant about $150 a week of pocket money. They all gave evidence that the secondary applicant has lived with the couple at the grandparents’ home and he has a girlfriend at whose house he stays at times during the week.

35. Subsequent to the hearing, the Tribunal received supporting documents including the secondary applicant’s academic transcript dated 1 December 2021, a Conditional[1] Offer from the University of Sydney in the Master of Architecture course, money transfers from the applicant to the secondary applicant, the applicant’s ANZ and Westpac transactions covering periods in 2018–2021, and the secondary applicant’s current Provisional Driver Licence showing the same address as the applicant.

    [1] The secondary applicant gave evidence that the offer is conditional pending his final grades in 2021, due on 22 December. 

36. On balance of the evidence, the Tribunal is satisfied that the secondary applicant is dependent on the applicant.  In essence and in consideration of the evidence, the Tribunal is satisfied that the secondary applicant is and has been for a substantial period, wholly or substantially reliant on the applicant for financial support to meet his basic needs for food, clothing, and shelter.  The Tribunal is therefore satisfied on the evidence that the secondary applicant is a ‘dependent child’ as defined in reg 1.03 of the Regulations. 

37. In relation to the secondary applicant, the appropriate action is also to remit his application for reconsideration in light of the finding that the applicant now satisfies cl 309.211(2) and cl 309.221 of Schedule 2 to the Regulations.

    DECISION

38. The Tribunal remits the applications for Partner (Provisional) (Class UF) visas for reconsideration, with the direction that the first named 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.

    Antoinette Younes
    Senior 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).