Tokugawa (Migration)

[2019] AATA 6226

Tokugawa (Migration) [2019] AATA 6226 (28 October 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Saki Tokugawa

CASE NUMBER:  1724635

HOME AFFAIRS REFERENCE(S):          BCC2016/2036986

MEMBER:Peter Smith

DATE:28 October 2019

PLACE OF DECISION:  Sydney

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 28 October 2019 at 3:17pm

CATCHWORDS
MIGRATION – refusal – Partner (Temporary) (Class UK) visa – Subclass 820 – substantial corroborative evidence provided– genuine and continuing relationship– truthful and credible witness– 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. Saki Tokugawa (the applicant) applied for the visa on 10 June 2016 on the basis of her relationship with her sponsoring partner, Wilson Yung. 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(2)(a) and cl.820.221 because there was insufficient evidence to demonstrate that the applicant and his sponsor were in a genuine spouse relationship at the time of visa application and at the time of the delegate’s decision.

4. The applicant appeared before the Tribunal on 23 October 2019 to give oral evidence and present arguments. The Tribunal also received oral evidence from Mr Yung.  At the hearing the applicant was assisted by an interpreter in the Japanese and English languages.

5. The applicant was not represented in relation to the review.

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 applicant is the spouse of her sponsoring partner for the purposes of s.5F(2) of the Act.

   Whether the parties are in a spouse or de facto relationship

8. Clauses 820.211(2)(a) and cl.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 claims to be the spouse of an Australian citizen.  According to the records held with the Department of Immigration and Border Protection (the Department) the sponsor acquired Australian citizenship by conferral on 13 December 1995.

9. ‘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?

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

11. Neither party made any claims of any previous marriages or relationships.

12. The applicant claims that the parties were married to each other in New South Wales on 4 June 2016.  In support of this claim the applicant relies on a Certificate of Marriage dated 4 June 2016 which provides that the parties were married to each other in New South Wales on 4 June 2016.  On this evidence, I am satisfied 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 spouse relationship met?

    Financial aspect of the parties’ relationship

13. The first factor I must consider under reg.1.15A of the Regulations is the financial aspects of the parties' relationship.  In considering this factor, I must have regard to all of the circumstances of the parties' relationship, including whether the parties have any joint ownership of real estate or other major assets, whether the parties have any joint liabilities, the extent of any pooling of financial resources, especially in relation to major financial commitments, whether one party to the relationship owes any legal obligation to the other, and the basis of any sharing of day-to-day household expenses.

14. There does not appear to be any evidence before the Tribunal that the parties have any joint ownership of real estate.  At the hearing the parties told the Tribunal that they plan to purchase a property with the money that they have saved but cannot do so jointly until the applicant’s visa status is determined.  In these circumstances, I give this evidence little weight.  However, I give weight to the evidence that the parties have had meaningful discussions with each other about making a joint purchase of property.

15. There is evidence before the Tribunal that Mr Yung purchased a motor vehicle for the applicant for her use to travel to and from work.  Because of her unresolved visa status the sponsor offered to purchase the motor vehicle on finance.  The loan repayments are debited from his bank account.  In my view this is normal in a genuine and continuing relationship.  The parties were asked separately about the details of this purchase including whether they purchased the car from a private seller or a car dealership and the location of the seller.  The parties gave consistent evidence about the identity of the car dealer and its location.  I accept this evidence and give it some weight.

16. There does not appear to be any evidence before the Tribunal that the parties have any joint liabilities.  In the circumstances of the present case it cannot be expected that the parties would have any joint liabilities.  I give this evidence little weight.

17. There does not appear to be any evidence before the Tribunal that the parties pool their financial resources, especially in relation to major financial commitments.  In the circumstances of the present case, I give this evidence little weight.

18. There does not appear to be any evidence before the Tribunal that one party to the relationship owes any legal obligation to the other.  I give this evidence some weight.

19. The parties were asked questions about the payment of day-to-day household expenses.  The parties provided evidence to the Tribunal that they have a joint bank account with the Commonwealth Bank of Australia (the CBA).  The parties use the joint account to pay for shared household expenses such as rent and bills and groceries.  The parties transfer funds from their own accounts to the joint account to pay their bills and save money for overseas travels, a house and for when they decide to have children.  On this evidence, I am satisfied that the parties share in the payment of day-to-day household expenses.

    The nature of the parties’ household  

20. The second factor I must consider under reg.1.15A of the Regulations is the nature of the parties’ household.  In considering this factor, I must have regard to all of the circumstances of the parties’ relationship, including whether the parties have any joint responsibility for the care and support of children, the living arrangements of the parties, and any sharing of the responsibility for housework.

21. There does not appear to be any evidence before the Tribunal that the parties have any joint responsibility for the care and support of children.  The parties told the Tribunal that they have discussed having children in the future.  I give this evidence some weight.

22. The parties claim to have shared a household together in Hurstville and since September 2018 the parties have lived at Wolli Creek.   This claim is supported by documentary evidence such as correspondence addressed to the parties at both addresses and also copies of their NSW driver’s licences. 

23. The parties told the Tribunal that they currently live in a two bedroom apartment.  The parties told the Tribunal that the sponsor’s mother also lives with the parties and did so at the Hurstville apartment.  The parties told the Tribunal that both parties provide support to her including financial.  In my view this is normal in a genuine and continuing relationship. 

24. At the hearing the applicant was asked by the Tribunal what she ate for dinner on 19 October 2019.  She said that she had cooked dinner on 19 October.  She said that she made a stir fry with chicken, bacon, onion, eggplant and broccoli.  She was asked about her sponsor’s favourite meal.  Later the sponsor was asked what he ate for dinner on 19 October 2019.  He gave consistent evidence about the ingredients in the stir fry and was able to tell the Tribunal his favourite meal which was consistent with the evidence given by the applicant.

25. The parties gave consistent evidence about the sharing of the responsibility for housework.  The parties told the Tribunal that the applicant cooks and the cleaning and washing is shared between the parties.  Sometimes the sponsor’s mother helps the applicant prepare meals.  I accept this evidence and give it some weight.

    The social aspects of the parties’ relationship

26. The third factor I must consider under reg.1.15A of the Regulations is the social aspects of the parties’ relationship.  In considering this factor, I must have regard to all of the circumstances of the parties’ relationship, including whether the parties represent themselves to other people as being married to each other, the opinion of the parties' friends and acquaintances about the nature of the relationship, and the basis on which the parties plan and undertake joint social activities.

27. The parties told the Tribunal that the parties represent themselves to other people as being married to each other.  Notwithstanding there is no evidence before the Tribunal from the parties’ friends and acquaintances about the nature of the parties’ relationship I found the parties evidence about the social aspects of their relationship plausible.  On this evidence, I am satisfied that the parties represent themselves to other people as being married to each other.  I give this evidence some weight.

28. There is evidence before the Tribunal that the applicant has met the sponsor’s friends and that the parties have socialized together as a couple with those friends. I accept this evidence and give it some weight. 

29. There is evidence before the Tribunal that the sponsor has met the applicant’s parents and that they support the parties’ relationship.  I accept this evidence and give it some weight.

30. The parties told the Tribunal that they socialize together and with friends.  They said that they eat out for dinner together and with friends.  There is photographic evidence on the file of the parties eating out together.  I accept this evidence and give it some weight.

    The nature of the parties’ commitment to each other

31. The fourth factor I must consider under reg.1.15A of the Regulations is the nature of the parties’ commitment to each other. In considering this factor, I must have regard to all of the circumstances of the parties’ relationship, including the duration of the relationship, the length of time during which the parties have lived together, the degree of companionship and emotional support that the parties draw from each other, and whether the parties’ see the relationship as a long-term one.

32. The parties claim to have met each other in October 2012 when the applicant was living and working in Australia.  I am prepared to accept this evidence as the applicant’s Movement Records show that the applicant arrived in Australia in June 2012 and did not depart until June 2013.  The parties claim to have commenced a relationship with each other in June 2013.  I accept the evidence before the Tribunal that the parties were validly married to each other for the purposes of s.5F(2)(a) of the Act on 4 June 2016.  Having regard to this evidence and the evidence given by the parties at the hearing which I accept as plausible, I am satisfied that the parties have been in a relationship with each other since June 2013.  I give this evidence significant weight as it represents a long-term relationship.

33. I am satisfied that the parties have lived together since April 2016 when the applicant returned back to Australia from Japan.  There is evidence on the file to support the parties’ claim that the parties lived with each other in Hurstville and since September 2018 at Wolli Creek.  I give this evidence some weight.

34. In relation to the degree of companionship and emotional support that the parties draw from each other, there is evidence before the Tribunal that the parties the parties provide care and support to each other and give each other advice.   I accept this evidence and give it some weight.

35. On the question of whether the parties see their relationship with each other as a long-term one, the parties appear to share common goals and appear to be working together to achieve those common goals.   

    CONCLUSION

36. Overall, I found the parties to be reliable and truthful witnesses.  I had the benefit of observing the parties at the hearing and was satisfied with the way in which they interacted with each other that they were in a genuine and continuing relationship.

37. On the basis of the above the Tribunal is satisfied that the requirements of s.5F(2) are met at the time of visa application and at the time of this decision.

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

39. 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

40. 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

    Peter Smith
    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).