Tambunan (Migration)

[2020] AATA 1177

Tambunan (Migration) [2020] AATA 1177 (14 April 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Humala Dewi Novianty Tambunan

CASE NUMBER:  1716766

HOME AFFAIRS REFERENCE(S):          BCC2016/1391229

MEMBER:Peter Emmerton

DATE:14 April 2020

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal remits the application for a Regional Employer Nomination (Permanent) (Class RN) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 187 (Regional Sponsored Migration Scheme) visa:

·cl.187.311 of Schedule 2 to the Regulations

Statement made on 14 April 2020 at 3:46pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – secondary applicant – member of family unit – genuine spousal relationship – financial aspects – joint ownership of property – pooling of financial resources – joint liabilities – nature of household – undertook IVF treatment – social aspects – nature of commitment – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5F, 65
Migration Regulations 1994 (Cth), rr 1.12, 1.15A; Schedule 2, cl 187.311

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 to refuse to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 7 April 2016. At the time of application, Class RN contained one subclass: Subclass 187 (Regional Sponsored Migration Scheme).

3. The criteria for a Subclass 187 visa are set out in Part 187 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. Applicants seeking to satisfy the primary criteria must meet the 'Common criteria', as well as the criteria of one of two alternative visa streams: the Temporary Residence Transition stream, or the Direct Entry stream.

4. In the present case, the applicant is seeking the visa in Direct Entry stream as a secondary applicant as the spouse of the primary applicant Mr Rafay Ullah Butt. Mr Butt applied for the visa on 7 April 2016 and Mrs Tambunan was added to the application on 20 June 2016 after a request was received to add her as an additional applicant after lodgement. Mr Rafay Ullah Butt’s visa was granted on 13 July 2017.

5. The delegate refused to grant the applicant’s visa because the applicant did not meet cl.187.311 of Schedule 2 to the Regulations because they were not satisfied that the applicant continues to be a member of Mr Butt’s, (the primary applicant), family unit.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is whether the couple is in a genuine spousal relationship as defined by section 5F of the Act and can therefore subsequently satisfy Cl.187.311.

8. In determining the applicants’ claims the Tribunal must first make findings of fact on material matters in dispute. This may involve an assessment of credibility and in so doing, the Tribunal is aware of the need and importance of being sensitive to the circumstances and the difficulties applicants often face before the Tribunal in their particular circumstances.

9. The applicants rely on the evidence given before the Tribunal together with written submissions and supporting evidence provided to the Tribunal and previously to the Department.

10. Clause 187.311 requires the following.

    The applicant:

    (a) is a member of the family unit of a person (the primary applicant) who holds a Subclass 187 visa granted on the basis of satisfying the primary criteria, for the grant of the visa, ' and

    (b) made a combined application with the primary applicant.

11. Regulation 1.12 of the Migration Regulations 1994 defines what 'member of the family unit' means.

    Reg 1.12

    (1) For the definition of member of the family unit in subsection 5(1) of the Act, and subject to subregulations (2), (2A), (6) and (7), a person is a member of the family unit of another person (in this subregulation called the family head) If the person is:

    (a) a spouse or de facto partner of the family head; or

    (b) a dependent child of the family head or of a spouse or de facto partner of the family head; or

    (c) a dependent child of a dependent child of the family head or of a spouse or de facto partner of the family head; or

    (e) a relative of the family head or of a spouse or de facto partner of the family head who:

    (i) does not have a spouse or de facto partner; and

    (ii) is usually resident in the family head's household; and

    (iii) is dependent on the family head.

    Regulation 1.12(I)(a) requires the applicant to be a spouse or de facto partner of the family head.

    The meaning of spouse has been given by Section 5F:

    (1) For the purposes of this Act, a person is the spouse of another person it under
    subsection (2), the 2 persons are in a married relationship.

    (2) For the purposes of subsection (1), persons are in a married relationship if:

    (a) they are married to each other under a marriage that Is valid for the purposes of this Act;
    and

    (b) they have a mutual commitment to a shared life as husband and wife to the exclusion of
    all others; and

    (c) the relationship between them is genuine and continuing; and

    (d) they:

    (i) live together; or

    (ii) do not live separately and apart on a permanent basis.

    (3) The regulations may make provision in relation to the determination of whether one or
    more of the conditions in paragraphs (2) (a), (b), (c) and (d) exist. The regulations may make
    different provision in relation to the determination for different purposes whether one or more of those conditions exist.

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 husband and wife 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).

    Are the parties validly married?

13. If the parties are validly married, they may meet the requirements of a spousal relationship, but not a de facto relationship. The Tribunal accepts a Marriage Registration Certificate as evidence that the couple were legally married on 19 May 2016 in Perth, Western Australia. 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 spousal relationship met?

14. In forming an opinion whether they are in a spousal relationship, consideration must be given to all of the circumstances of the relationship. This includes evidence of the financial and social aspects, the nature of the applicant’s household and their commitment to each other.

15. The applicant applied for the visa on 7 April 2016 as the secondary applicant. Mr Rafay Butt was the primary applicant whose visa was granted on 13 July 2017 and as previously stated they were married in May 2016. At the time of this valid application, Class RN contained one subclass: Subclass 187 (Regional Sponsored Migration Scheme).  

16. The visa applicant is a 31-year old female Indonesian national by birth, who has declared no previous relationships.

17. The Tribunal has considered the documentary evidence provided to the Department and the Tribunal. The Tribunal has had the benefit of a more substantial evidence base than was originally presented to the delegate at the time of their decision. The Tribunal has considered all aspects of the relationship.

18. In relation to the financial aspects of the relationship between the applicant and the primary visa holder, the Tribunal has considered joint asset ownership, joint liabilities, pooling of financial resources, legal obligations and the sharing of daily household expenses. The Tribunal notes that this is one of 2 unsatisfied criteria raised by the delegate. The Tribunal has formed a different opinion.

19. In regards to any joint ownership of real estate or other major assets, the Tribunal has determined that the couple jointly own land upon which they are building a house as evidenced by a jointly signed contract dated 26 October 2019. A jointly signed contract for the construction of a home was also proffered dated 28 January 2020. The total value of these assets approximates $490,000.

20. Regarding the extent of any pooling of financial resources, especially in relation to major financial commitments, the Tribunal notes, bank statement evidence of 2 joint bank accounts. It accepts as evidence that they are jointly responsible for the satisfactory maintenance of a Health Conditions of Approval for a food preparation premises, as demonstrated by a compliance certificate issued by the City of Gosnells. The Tribunal accepts as evidence a joint lease agreement for their rented house. In addition, an electricity agreement with Synergy Energy was furnished demonstrating the joint authorisation of both Mr Butt and Mrs Tambuman in relationship to the account. Evidence of joint liability for the water account at their jointly rented home was also provided.

21. The Tribunal received no evidence that the couple have any joint liabilities other than those outlined in paragraphs 19-20.

22. Whether one person in the relationship owes any legal obligation in respect of the other. The Tribunal has determined that aside from the usual legal obligations associated with a marriage, the couple have not provided any evidence to indicate additional legal obligations.

23. The basis of any sharing of day-to-day household expenses the Tribunal again refers to the evidence outlined in paragraphs 19-20 of this document.

24. The Tribunal places substantial weight on the cumulative evidence in support of the financial aspects of the relationship.

25. In relation to the nature of the household aspects of the relationship between the applicant and the sponsor, the Tribunal has considered the following.

26. Any joint responsibility for the care of children. The Tribunal notes that the couple are young and neither have responsibility for children at this stage of their relationship. However clear evidence in the form of letters provided by their Fertility Specialist in relationship to both individual’s medical examinations and evidence of the first 4 cycles of Invitro Fertility treatment, demonstrate that the couple is heavily invested in the formation of a family. It would appear to be very unlikely in the experience of the Tribunal that such physically and emotionally invasive procedures would have been undertaken if they were not a genuine spousal couple. The Tribunal is also aware of the parameters set by legislation and Fertility Clinics practice guidelines which support this assumption.

27. In regards to the living arrangements of the couple, the fore mentioned home rental Agreement, Bond Certificate, Water Account liability and Electricity Account liability substantiate the claim that they have lived together for several years since their marriage.

28. Any sharing of responsibility for housework. This was not tested by the Tribunal but it was not provided with any evidence to suggest anything other than a normal sharing of such responsibility.

29. The Tribunal places substantial weight on the cumulative evidence presented in relation to the nature of the household.

30. In regards to the social aspects of the relationship, the Tribunal has also noted that this was the other factor of the relationship that the delegate was not satisfied had been satisfactorily demonstrated and was subsequently part of the reason the application was rejected. In relation to the social aspects of the relationship between the applicant and the sponsor, the Tribunal has considered the following.

31. Whether the persons represent themselves to other people and family as being married to each other. A wide range of photographic evidence was presented to the Tribunal demonstrating important events in the couple’s mutual lives These included the Baptism of Mr Butt with their religious advisers, Wedding and Wedding celebrations, family outings and celebrations which included parents and siblings.

32. Any basis on which the persons plan and undertake joint social activities. Evidence was proffered to demonstrate a range of social activities other than with close family. It is noted that a Marriage celebration in front of family members and friends, serves as a very public and social display of the relationship.

33. The Tribunal acknowledges the statements made by both parties in regards to their mutual commitment to each other and their genuine relationship.

34. The Tribunal notes the evidence provided substantiating a joint interstate plane journey undertaken by the couple.

35. The Tribunal places moderate weight upon the cumulative evidence provided in support of the social aspects of their relationship.

36. In relation to the nature of the persons’ commitment to each other, the Tribunal has considered the following.

37. The duration of the relationship. The Tribunal was presented with a range of testimony and evidence showing that the relationship evolved over a substantial period of time and culminated in a Marriage.

38. The length of time they have lived together. As previously stated, evidence of cohabitation and Marriage dated 19 May 2016 is accepted as fact by the Tribunal.

39. The degree of companionship and emotional support that the persons draw from each other. The Tribunal was convinced by the written testimony of the couple. The additional evidence substantiating the IVF program which they are currently jointly undertaking, would in the experience of the Tribunal, by necessity require a substantial level of mutual emotional and intimate physical support.

40. The Tribunal also acknowledges that the entering into contracts for residential land and subsequent building construction is a substantial financial, legal and socially visible commitment to each other.

41. The Tribunal determined that the evidence provided to demonstrate ongoing communication between the couple further strengthens the body of evidence supporting the genuineness of this relationship.

42. The Tribunal places substantial weight upon the cumulative evidence provided in support of the couple’s commitment to each other.

43. 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.

44. As Mrs Humala Dewi Novianty is a spouse of Mr Rafay Ullah Butt under Section 5F, she meets the requirements of Regulation 1.12(1)(a).

45. As Regulation 1.12(1)(a) is met the Tribunal is satisfied that Mrs Tambunan continues to be a member of Mr Butt’s family unit, therefore she meets the requirements of Regulation 1.12 in its’ entirety.

46. As the Tribunal is satisfied that Mrs Tambunan continues to be a member of Mr Butt’s family unit, she meets Regulation 187.311(a).

47. Therefore because Mrs Tambunan meets Regulation 187.311(a) she meets Regulation 187.311 in its’ entirety.

48. 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 187 visa.      

    DECISION

49. The Tribunal remits the application for a Regional Employer Nomination (Permanent) (Class RN) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 187 (Regional Sponsored Migration Scheme) visa:

    ·cl.187.311. of Schedule 2 to the Regulations

    Peter Emmerton

    
    

    Member