Tonga (Migration)

[2018] AATA 3764

Tonga (Migration) [2018] AATA 3764 (3 September 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Lolesio Feiloaki Tonga

CASE NUMBER:  1622048

DIBP REFERENCE(S):  CLF2012/210338

MEMBER:P. Maishman

DATE:3 September 2018

PLACE OF DECISION:  Perth

DECISION:The Tribunal remits the application for a Partner (Residence) (Class BS) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 801 (Partner) visa:

·cl.801.221(2)(c) of Schedule 2 to the Regulations

Statement made on 03 September 2018 at 5:19pm

CATCHWORDS

Migration – Partner (Residence) (Class BS) – Subclass 801 (Spouse) – Genuine relationship – Consistent oral evidence about each other’s background and family – Sponsor shares income with applicant – Joint responsibility for care of children – Statutory declarations provided confirming relationship between the applicant and sponsor – Decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 5F, 65, 375A

Migration Act Regulations 1994 (Cth), r 1.15A Schedule 2 cl 801.221

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 on 22 November 2016 to refuse to grant the applicant a Partner (Residence) (Class BS) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 18 October 2012 on the basis of his relationship with his sponsor. At that time, Class BS contained only one subclass: Subclass 801 (Partner). The criteria for the grant of this visa are set out in Part 801 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The primary criteria must be satisfied by at least one applicant. Relevantly to this matter the primary criteria include cl.801.221(2)(c).

3. The delegate refused to grant the visa on the basis that the applicant did not satisfy cl.801.221 because the delegate was not satisfied there was sufficient documentary evidence to be satisfied that the applicant and sponsor are in a genuine spousal relationship.

4. The applicant provided the Tribunal a copy of the delegate’s decision with his application for a review.

5. The applicant appeared before the Tribunal by telephone on 3 September 2018 to give evidence and present arguments. The Tribunal also received oral evidence by telephone from the sponsor, Mrs Tracey Tonga.

6. The applicant was represented in relation to the review by his registered migration agent who attended the hearing in person.

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

   CERTIFICATE ISSUED UNDER S375A OF THE ACT

8. The Department’s file contained a certificate issued under section 375A of the Act. This certificate prevents the Tribunal disclosing any document, matter or information referred to in the certificate as it would be contrary to the public interest. The certificate specified four folios in the file. The Tribunal considered the information that is the subject of the certificate and is of the view that as the information relates to departmental procedure it is not relevant to this review and the Tribunal places no weight on the information referred to in the certificate.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The applicant is a 41-year-old male citizen of Tonga. He claims not to have been in any previous relationship and has a daughter with the sponsor.

10. The sponsor is a 46-year-old female Australian citizen. She has children from a previous relationship that finished in 2007 and a daughter from a relationship with the applicant.

11. The parties claim to have met in January 2011 and committed to a long-term relationship in May 2011. They married on 5 November 2011. The parties provided the Department a birth certificate for their daughter born 12 July 2012.

12. The Department’s file shows that on 7 July 2014 the Department granted the applicant a Partner (Temporary) (class UK) Partner (subclass 820) visa.

13. On 22 November 2016 the Department made its decision on the basis that there was no documentary evidence in support of the financial aspects of the relationship, the nature of the household, or the nature of the commitment of the parties since the grant of the temporary visa. The department was also concerned that the social aspects of the parties’ relationship were only attested to by the sponsor’s family and so not recognised or accepted in the wider community. The Department’s decision record outlines that the Department did not receive responses to requests dated 28 August 2014, 22 March 2016, or 24 August 2016 for further information in respect of their assessment for the Residence visa. On 22 September 2016 the applicant provided an incomplete online application for the Residence visa.

14. The applicant provided the Tribunal some additional evidence in the form of wedding photographs, photographs of the applicant and his daughter, a tax invoice for fees for the gymnastics club for the applicant and sponsors daughter, a rent assessment form from a government authority and a statutory declaration provided by Patricia Blain.

15. The applicant and sponsor gave evidence separately at the hearing. The Tribunal questioned them about their relationship history, development of their current relationship, knowledge of each other’s backgrounds and family relationships, the financial, social and household aspects of their relationship and the nature of their commitment to each other. Their responses were generally consistent, differing enough to indicate they were providing authentic responses from their own perspectives and knowledge. The Tribunal found the applicant and sponsor to be credible and honest witnesses and accepts their oral evidence on that basis.

16. The Tribunal acknowledges the Department’s concern about the lack of documentary support available in making its decision. The Tribunal has considered the parties oral evidence together with the additional documentary evidence submitted to the Tribunal to reach the findings below.

17. The issue in the present case is whether the applicant is a in a genuine spousal relationship with the sponsor.

    Whether the parties are in a spouse or de facto relationship

18. Relevantly to this matter, cl.801.221(2)(c) requires that at the time of this decision, the applicant is the spouse of the ‘sponsoring partner’, who must be an Australian citizen or Australian permanent resident or an eligible New Zealand citizen who was specified in the related Subclass 820 visa application as the spouse or de facto partner of the applicant. In the present case the applicant claims to be the spouse of the sponsor who is an Australian citizen and was identified in the Subclass 820 visa application. On the evidence before it, the Tribunal is satisfied that the sponsor is the ‘sponsoring partner’ of the applicant.

19. ‘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 visa applicant’s and sponsor’s household and their commitment to each other as set out in r.1.15A(3), which is extracted in the attachment to this decision.

    Are the parties validly married?

20. If the parties are validly married, they may meet the requirements of a spousal relationship, but not a de facto relationship. The Department’s file contains a certified true copy of a marriage certificate issued by the Western Australian Registrar of Births, Deaths and Marriages evidencing the parties were married on 5 November 2011. 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?

21. The Tribunal considered the financial aspects of the relationship. The Tribunal acknowledges the Department’s concerns that there is no current documentary information provided about the parties’ financial relationship. The parties were consistent in their evidence that they do not have joint assets or any legal liabilities. The applicant gave evidence that he was not working at the moment but was staying home and looking after the children. The applicant has a car registered in his name which is used by his stepson. The sponsor owns a car that is shared with the applicant. The sponsor confirmed that her main source of income was Centrelink income support payments. The applicant said that he had no income and no money and relied entirely on his wife’s financial support. The Tribunal was concerned at the parties’ evidence that the applicant had no work rights and referred them to discuss that matter with their representative. The sponsor’s income is used to pay rent, buy food and pay any other bills.

22. The Tribunal finds that the sponsor shares all of her income with the visa applicant and their financial circumstances are indicative of an ongoing marriage relationship.

23. The Tribunal considered the nature of the parties’ household. The parties continue to share a house and have done at least since they were married. The Tribunal notes that correspondence from the government authority through which Mr and Mrs Tonga rent is directed to both of them as tenants. The parties share a bedroom in the house. The parties are jointly responsible for the housework, shopping and looking after their daughter.

24. The Tribunal finds that the nature of the parties’ household is indicative of an ongoing marriage relationship.

25. The Tribunal considered the social aspects of the relationship. A number of statutory declarations confirm the relationship between the applicant and the sponsor. The Tribunal accepts the parties’ evidence that they socialise often with family and friends. The applicant has considered the grandfather to the children of his stepchildren.

26. The Tribunal finds that the nature of the social aspects of the applicant and sponsors relationship is indicative of a marriage relationship.

27. The Tribunal considered the nature of the applicant and sponsors commitment to each other. The Tribunal accepts on the evidence that the parties have known each other since 2010, been married to each other since 2011, and have not separated at any time since. The sponsor gave evidence that their daughter would be devastated should the applicant be forced to leave Australia. The sponsor did not see moving to Tonga as a realistic alternative because her extended family is in Australia and the quality of education that would be available to their child is likely to be better in Australia. Work prospects in Tonga are also limited and she would be unlikely to be able to support herself. The parties plan to go to Tonga at some stage in the future because it’s important for their daughter’s cultural awareness.

28. The Tribunal finds that the nature of the parties’ commitment to each other is indicative of a marriage relationship.

29. Having regard to the totality of the evidence and the findings above, the Tribunal is satisfied that the applicant and sponsor have a mutual commitment to a shared life as a married couple to the exclusion of all others. The Tribunal is satisfied the relationship between them is genuine and continuing and that they live together.

30. Given these findings the Tribunal is satisfied that the requirements of s.5F(2) are met at the time of this decision. Therefore the applicant meets cl.801.221(2)(c).

31. 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 801 visa.

    DECISION

32. The Tribunal remits the application for a Partner (Residence) (Class BS) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 801 (Partner) visa:

    ·cl.801.221(2)(c) of Schedule 2 to the Regulations

    P. Maishman
    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).