Thapa (Migration)

[2020] AATA 1692

Thapa (Migration) [2020] AATA 1692 (26 February 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Shekhar Bahadur Thapa

CASE NUMBER:  1826610

HOME AFFAIRS REFERENCE(S):          BCC2015/1226380

MEMBER:Rachel Westaway

DATE:26 February 2020

PLACE OF DECISION:  Melbourne

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 of Schedule 2 to the Regulations

Statement made on 26 February 2020 at 6:05pm

CATCHWORDS
MIGRATION – refusal – Partner (Temporary) (Class UK) visa – Subclass 820– both provided consistent oral evidence –Australian Certificate of Marriage provided – genuine and continuing relationship – substantial corroborative evidence provided – decision under review remitted

LEGISLATION
Migration Act 1958, ss 5, 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 Immigration and Border Protection 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, Mr Thapa applied for the visa on 27 April 2015 on the basis of his relationship with his sponsor, Ms Maitland. 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 (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.820.211 because there was limited evidence to support the financial aspects of the relationship, the establishment of a joint house hold, your presentation as a married couple to family and friends and the wider community and limited evidence to support a commitment to each other as a married couple.

4. On 10 November 2016 the first tribunal affirmed the Delegate’s decision. The applicant sought judicial review of this decision based on the first tribunal’s failure to consider bank statements from their joint business account which the applicant gave to the tribunal as evidence of daily expenses between the applicant and the sponsor. The court found that the tribunal failed to consider the business account transactions as evidence of daily expenses and a shared household between the couple. It was argued that the transactions in the business account did constitute evidence of shared household expenses. As such the court found that jurisdictional error attends the tribunal’s decision.

5. The second tribunal has considered the evidence put forward by the applicant to the department and also to the first tribunal. It has noted the first tribunal’s consideration of the evidence submitted to support the claim that the applicant is the spouse of the sponsor and they are in a genuine and ongoing relationship.

6. The applicant appeared before the second tribunal on 26 February 2020 to give evidence and present arguments. The Tribunal also received oral evidence Shang Wang, Bikash Thapa and Chozin Maitland, the sponsor. The Tribunal hearing was conducted with the assistance of an interpreter in the Nepali and English languages.

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

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

   Consideration of claims and evidence

9. The issue in the present case is whether the applicant is the spouse of the sponsor at the time of application and if so continues to be the spouse at the time of decision.

   Whether the parties are in a spouse or de facto relationship

10. 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. Based on the certificate of Australian citizenship granted to the sponsor on 5 September 2013, the tribunal is satisfied that the sponsor is an Australian citizen at the time of application. In the present case the applicant claims to be the spouse of the sponsor who is an Australian citizen.

11. ‘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?

12. If the parties are validly married, they may meet the requirements of a spousal relationship, but not a de facto relationship. In this case the parties have provided a marriage certificate with a registration number which records the applicant married Cho Zin Thaw on 31 May 2014. The fist tribunal noted that the original of the certificate does not have a history of changes of name and corrections on the back of the document. The applicant also provided a registered change of name certificate dated 20 September 2013 and registered with the Registry of Births, Deaths and Marriages recording that Cho Zin Thaw changed her name to Chozin Maitland. The applicant did not know why the change of name was not recorded on the certificate of marriage. The applicant was not certain whether the sponsor changed her name before or after the marriage. The first tribunal was satisfied that the change of name was recorded on 20 September 2013, nine months prior to the marriage. It was not clear why the change of name is not recorded on the back of the registered marriage certificate, so after the hearing the tribunal made enquiries in this regard of the Registry.

13. After the first tribunal hearing the review applicant provided the first tribunal with a copy of the marriage certificate that had previously been provided. Enquiries were made by the first tribunal and it was informed that a marriage certificate is a record of the marriage, and would only contain references to a change of name of one of the parties if the documentation recording the change of name was provided to the Registry of Births, Deaths and marriages at the time of the application for the marriage certificate. The first tribunal found that the sponsor did not advise the Registry of Births, Deaths and Marriages of her changed name, and did not provide the Registry with her Change of Name certificate at the time of the application for the marriage certificate. The first tribunal and the second tribunal are satisfied that this does not make the marriage invalid as both documents are registered with the Victorian Registry of Births, Deaths and Marriages. 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).

14. Are the other requirements of a spousal relationship met?

    Witness oral evidence at hearing

15. Ms Shang Wang addressed the second tribunal and confirmed that she met the visa applicant through her husband. He was friends with Mr Thapa whom he knew in Nepal and he introduced him to the sponsor, Ms Maitland. She said that they see Mr Thapa and his wife every month and at main events and Nepalese festivals. She provided examples of spending New Year’s Day together and she said they went to Williamstown beach. She said that the other witness, Bikash was also there as they are a close knit circle of friends. She confirmed that Ms Maitland, the sponsor is also there and she confirmed that she has no doubts that they are in a married relationship. She confirmed that Ms Maitland is from Burma and she lives with the visa applicant in a rented three bedroom house in Glenroy. She confirmed that a man called Tila lives there and he is a chef. She was able to describe their house. She said that the visa applicant and sponsor have been living together since 2012 as a couple and share a bedroom. She said that she has two children who call the visa applicant and sponsor Aunty and Uncle.  She has met the sponsor’s parents and younger brother at the house in Glenroy. She confirmed they have been in the same house since 2012. She said that she knows that they share household responsibilities because she heard Ms Maitland speak of the two of them cleaning the house for a real-estate agent’s inspection. She also stated that they give her children gifts when it is their birthday and the gifts are given as a joint gift from the two of them.

16. She also stated that she attended their wedding. She explained why she could not attend the second hearing to provide evidence. She stated that she had just delivered her daughter and because she is Chinese she adheres to the cultural requirement of not leaving the house for a month.

17. Mr Bikash Thapa then gave evidence that he met the visa applicant in 2009 and has known him since they came to Australia but he did not know him in Nepal. He confirmed they are not related. He said that they lived together at different times around 2009-2011 and also in 2015. He said that he moved out in 2017 and confirmed that the house was in Glenroy and is the same house he is currently living in with Ms Maitland. He said that there are three bedrooms in that house. They all moved in together in 2011 however in 2013 or 2014 he said Mr Thapa moved out for a year in order to be closer to work.

18. He confirmed that he met Ms Maitland in 2012/13 and she was Mr Thapa’s girlfriend. He said that in his culture they would not move in together unless it was a serious relationship. He confirmed that he went to their wedding. He said that he knew they were a couple and that Ms Maitland was committed to Mr Thapa as she would express concern if he was away too long. They were always out together. He said that Ms Maitland moved into the same bedroom as Mr Thapa and they shared the bills. He said that he sees them weekly and his partner and Ms Maitland are friends.

    Applicant and Sponsor oral evidence at hearing

19. Mr Thapa explained the development of the relationship and said that he met Ms Maitland through Ms Wang’s husband who introduced them via Facebook. He said they first met in person when they went for dinner at Crown. He said it was Dumplings Plus in the food court at Crown in 2012.

20. He confirmed that they moved in together around 2014 in the house in Glenroy where Bikash was also living with his then girlfriend. He said when Bikash moved out, he took a lot of the furniture and he and Ms Maitland bought whitegoods and a bed together and other items they needed.

21. Mr Thapa was able to provide detailed oral evidence to support his knowledge of Ms Maitlands work history, her supervisors and what her hourly rate of pay is and how often she was paid in her last two jobs. He stated that she is permanent part time and earns around $20-$23 per hour. She is paid fortnightly with AMEX and her last role she was paid weekly. He confirmed that the salary goes directly into their combined CBA account. The Tribunal was provided with evidence of the bank account and noted that that Ms Maitland’s salary has been deposited in that account since 2017 when she commenced work at the airport. Prior to that, she had her own business which is why she presented the first tribunal with a business account.

22. The tribunal noted that the joint account and the business accounts had many transactions for daily household expense.

23. The Tribunal then took oral evidence from Ms Maitland. She provided consistent evidence about how the couple met and when they started to live together.

24. The Tribunal asked both the visa applicant and sponsor about their long term plans to start a family and the health related issues brought up in the first tribunal’s decision.

25. They both provided consistent oral evidence. They plan to start a family but Ms Maitland has 6 months remaining of her bachelor degree and she would like to complete this first. They also confirmed separately that Ms Maitland had health related issues pertaining to the regularity of her period and they were concerned about her ability to conceive. They both explained that they had not pursued this with a doctor because they did not want to start a family until Ms Maitland had completed her studies and they would address the issue then.

26. Mr Thapa confirmed that they still want a family but she has had irregular menstrual cycles and sometimes may not have a period for 6 months. He asked her to stop the medication she was on because he felt it was not assisting her. He explained that he wants her to finish her bachelor degree in accounting and she has 6 months remaining. He said he never had a chance to finish his studies and he wants her to become educated.

27. He confirmed that they see the sponsor’s parents every day as they live close by and they have assisted them in the purchase of their car.  He stated that her parents are not aware that they formally married because they want a large wedding and they could not afford it however they recognise them as a couple. He explained that Ms Maitland has a step-father.  He said that her father died of a heart attack. The step father is called John Maitland.

28. He also said that Mr Maitland’s sister in law and brother have visited Nepal and stayed for a week with his parents. The wife is Burmese and the husband is Australian and they went to Nepal and stayed at the applicant’s family’s house. They live in Brunswick.  He said he calls the wife Aunty Amy and the man Uncle. They have a factory in Dandenong. Their grown up children are called Shaun and Anita. Anita is a community worker.

29. The applicant was asked to explain the business account which was presented to the first tribunal. He said that his wife owned a painting business which is why they had a business account. He explained that since the business closed, he they have a joint account which the sponsor’s salary goes into and they use as their everyday account. The applicant provided copies of the statements for the joint account dating back to 2017. The Tribunal cross checked the applicant and sponsors oral evidence pertaining to salary and regularity of payments and found them to be consistent in their answers and knowledge.

    Financial Aspects of the Relationship

30. Based on the evidence before it the tribunal is satisfied that the sponsor and the applicant have two shared accounts, one business account and one personal account and that the personal account has, from 2017 when the sponsor’s company closed down, been the primary account for shared use, pooling for finances and household expenses.

31. The Tribunal has viewed the business account which was under the sponsor’s name and note that it had personal expenses listed. The Tribunal is satisfied that these expenses were household expenses and coupled with the oral evidence provided by witnesses who also lived in the house and attest to the fact that the couple did live together as husband and wife, the Tribunal accepts that these funds were used to pay for household items from 2014-2017 when the shared personal account became the primary account.

32. The Tribunal was satisfied that the oral evidence provided by the applicant indicated he knew a significant amount of detail about the sponsor’s employment, salary, hourly rate, regularity of pay over the years and her supervisor. The level of detail satisfied the tribunal that the couple have pooled their financial resources.

33. The Tribunal has considered that the first tribunal did not accept that the applicant was involved in the sponsor’s business and consequently did not have access to the business account. However the second tribunal has had the benefit of significantly more oral evidence from witnesses and further information on the day to day routine of the couple and how they structured living as well as oral evidence from witnesses and copies of a personal account with many transactions over the years which both the applicant and the sponsor were able to clearly identify and explain. Cumulatively, the evidence satisfies the tribunal that the couple have pooled their finances from the date of application.   

    Nature of the Household

34. The tribunal accepts that the parties have resided in the same shared accommodation in Glenroy based on consistent evidence from all witnesses who have lived with the couple from the time of their application and who attested to their shared household responsibilities. The tribunal notes that the witnesses spoke consistently about being entertained at the house by the couple and others who lived there now. The Tribunal accepts that the home in which they have lived has been a shared home; however the evidence before the tribunal consistently presented the couple as living together as husband and wife and sharing a bedroom, household responsibilities and commitments. The tribunal is satisfied that the applicant and sponsor have lived together sharing household responsibilities as a couple.

    Nature of the Commitment to Each Other

35. The parties spoke of their plan to restart their painting business and of starting a family. Whilst the first tribunal expressed concerns about the limited medical evidence to support the sponsor’s medical conditions, the oral evidence and detail provided by both parties was sufficient for the second tribunal to be satisfied as to what the issues were and why the couple were waiting before they started investigations into pregnancy concerns.  The evidence was of a personal nature and the detail which the applicant was able to satisfy the tribunal that the couple had discussed personal issues and made decisions about their future together. The applicant discussed the fact that he did not have work rights and as such cannot restart the painting business originally set up by the sponsor however once he does, he explained it was his intention to do so. He explained that he was a painter before and his wife previously owned a painting business but he did not work in it as a painter but assisted from time to time with administration.

36. The second tribunal discussed the concerns raised by the first tribunal around evidence of regular contact with the sponsor’s family and their regular interaction. Consistent and detailed oral evidence was provided that John Maitland is the father in law of the applicant and step father of the sponsor. They spoke of his sister and her family visiting Nepal and staying with the applicant’s family for one week. The detail provided and the consistency in responses demonstrated that the couple and their families are known to each other, their relationship is recognised and supported and that the applicant’s family in Nepal are happy to host and accommodate the sponsor’s family from Australia when they came to visit. The tribunal is satisfied that the sponsor and applicant are committed to each other.

    Social Aspects of the Relationship

37. The first tribunal was provided with ten statutory declarations but no written evidence provided from the sponsor’s family, or from the applicant’s family to support their relationship. However the second tribunal heard detailed and convincing evidence from witnesses who have known the couple since the inception of their relationship and attest to the fact that they are married and are a genuine couple.

1. Facebook posts were also provided to both the first and second tribunal presenting the applicant and sponsor as a couple. The applicant provided updated Facebook posts which reinforced and gave greater credibility to earlier ones presented to the first tribunal.

2. The couple provided reasons why the applicant’s mother was not aware of the actual formal marriage stating she wanted a large wedding and the couple could not afford it. Not with standing this, they are accepted the couple and provided detailed accounts of the family makeup and daily activities they engage in as a couple. The tribunal is satisfied based on the detailed and credible evidence of the witnesses that the couple undertake social activities together and represent themselves to others as a married couple.

   Findings

3. The tribunal has considered the evidence before it and is satisfied the parties resided in the same house, at the time of application and at the time of decision. The tribunal is satisfied that the parties are married and that the applicant is the spouse of the sponsor.

4. The applicants have provided consistent evidence of joint assets namely furniture and a car and were able to speak with consistency about their purchases. They have provided explanations and evidence of their pooled income and daily regular use of their shared bank account since 2017.

5. The tribunal is satisfied that the parties live together in the same household and share responsibilities for cooking and cleaning and entertainment as husband and wife.

6. The tribunal is satisfied based on the oral evidence of sponsors, Facebook posts and pictures that the couple present themselves as a married couple to family, friends and the broader community.

7. The tribunal has considered the detailed and consistent evidence from the applicant pertaining to the sponsor’s medical condition. He confirmed their mutual desire to start a family and the timing of that and reasons why they have postponed it. The tribunal is satisfied that they have a mutual commitment to each other as husband and wife.

   Conclusions

8. The tribunal has considered the evidence before it and notes that with the passage of time, the cumulative evidence before it supports the tribunal’s findings that the applicant is the spouse of the sponsor, that they have a mutual commitment to shared life to the exclusion of others; it is a genuine and continuing relationship; and they live together and not separately and apart on a permanent basis.

9. 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 at the time of this decision.

10. The tribunal is satisfied based on the evidence before it, that the applicant is the spouse of the sponsor.

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

12. 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

13. 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.820.221of Schedule 2 to the Regulations

    Rachel Westaway
    Senior 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).