Tutia (Migration)

[2018] AATA 3132

Tutia (Migration) [2018] AATA 3132 (7 May 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Tutia TUTIA

CASE NUMBER:  1615495

DIBP REFERENCE(S):  BCC2015/544307

MEMBER:Shane Lucas

DATE:7 May 2018

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 (Temporary)) visa:

·cl.820.211(2)(a) of Schedule 2 to the Regulations; and

·cl.820.221 of Schedule 2 to the Regulations.

Statement made on 07 May 2018 at 4:30pm

CATCHWORDS
Migration – Partner (Temporary) (Class UK) visa – Subclass 820 (Spouse) – Genuine spousal relationship – Marriage certificate – Joint tenancy agreement – Major financial commitments – Shared daily care of children – Photographic evidence – Length of couple residing together – Decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 5F, 65
Migration Regulations 1994 (Cth), r 1.15A, Schedule 2 cls 820.211, 820.221

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision of a delegate of the Minister for Immigration on 16 September 2016 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 is a Samoan national born on 16 January 1980. He applied for the visa on 18 February 2015 on the basis of his relationship with his sponsor. At the time the application was made, Class UK contained only one subclass: Subclass 820 (Partner (Temporary)). The criteria for the grant of this visa are set out in Part 820 of Schedule 2 to the Migration Regulations 1994 (the Regulations).

3. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cls.820.211(2)(a), and consequently 820.221, of the Regulations because the delegate was not satisfied the visa applicant was the spouse of the sponsor. The delegate considered that the information and evidence submitted in support of the application was not sufficient to demonstrate that the visa applicant satisfied the definition of spouse under s.5F of the Act.

4. The applicant seeks review of the delegate’s decision.

5. The applicant appeared before the Tribunal on 27 April 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor.

6. The applicant was represented in relation to the review by a registered migration agent.

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

   Relevant law

8. Clauses 820.211(2)(a) and 820.221 require that at the time the visa application was made (and at the time of 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 sponsor. The parties provided certified copies of the sponsor’s Certificate of Status for New Zealand Citizens in Australia (dated 15 July 2014) and New Zealand passport (issued 3 April 2014) confirming that the sponsor (born in Samoa on 1 June 1972) is an eligible New Zealand citizen. Accordingly, the sponsor satisfies the requirements of cls.820.211(2)(a)(i) and 820.221.

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, the nature of the parties’ household, and their commitment to each other as set out in r.1.15A(3).

   Are the parties validly married?

10. If the parties are validly married, they may meet the requirements of a spousal relationship, but not a de facto relationship. The applicant provided the Tribunal with a certified copy of the Certificate of Marriage showing the marriage was made at Epping, Victoria on 14 February 2015. There is nothing to suggest the marriage is not valid. The Tribunal is therefore satisfied on the evidence 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?

11. The applicant provided documentation to the Tribunal that was not available to the delegate. The Tribunal also had the benefit of hearing oral evidence from both parties and found them to be frank and credible.

    Financial aspects of the relationship

12. The applicant provided the Tribunal with oral evidence and documentation attesting to the couple’s financial arrangements. The material included documentation attesting to the couple’s joint savings account with the Bank of Melbourne; car registration in joint and individual names; and bond and tenancy agreements with the Residential Tenancies Bond Authority and Barry Plant Real Estate in Thomastown respectively regarding the parties’ joint tenancy of their home in Thomastown, Victoria. The Tribunal also received oral evidence regarding the approach the couple take to sharing their salaries and acquitting their household expenses.

13. On consideration of the evidence, the Tribunal is satisfied that the couple have pooled their financial resources in relation to the sharing of day-to-day household expenses and major financial commitments (i.e. motor vehicles). The Tribunal is satisfied that the couple have joint liabilities and that each party in the relationship owes a legal obligation in respect of the other with regard to their joint tenancy agreement. The Tribunal found no evidence of any joint ownership of real estate.

14. The Tribunal finds that that the financial aspects of the relationship attest to the genuine and continuing spousal relationship between the parties.

    Nature of the household

15. In written statements and in oral evidence, the parties provided the Tribunal with a consistent and detailed account of the couple’s living arrangements, including their work, family, recreational and community-based routines. The couple are members of the Church of Jesus Christ of Latter-Day Saints in Epping, Victoria and stated that the regular events and faith-based structures of the church play a significant role in the family’s daily life.

16. The Tribunal also received oral evidence attesting to the daily routine of the parties as they pertain to meeting the domestic needs of a family with young children with regard to cooking, housework, and ensuring that the sponsor’s two daughters (aged 14 years and 11 years respectively) meet their various school and sporting commitments.

17. The sponsor provided oral evidence regarding the difficulties she experienced while in a long-term de facto relationship with her former partner, being the natural father of her five children. Her previous relationship ended in July 2013 and her former partner is subject to an intervention order granted by the Seymour Magistrates’ Court on 14 November 2013.

18. In oral evidence, the sponsor stated that she believes her former partner’s alcohol and drug-related behaviours are in part responsible for the problems experienced in more recent times by her older children. The sponsor’s oldest son is presently on remand at the Metropolitan Remand Centre in Ravenhall, Victoria; her second son (aged 17 years) is presently incarcerated at the Melbourne Youth Justice Centre in Parkville, Victoria; and her third son (aged 16 years) is not living with the family. In oral evidence, the visa applicant spoke credibly and frankly about his commitment to ensuring that his step-daughters are able to complete their education; be protected within a secure, faith-based family unit; and avoid the personal difficulties that have beset their brothers.

19. On consideration of the evidence, the Tribunal is satisfied that the couple live together and share responsibility for the housework, cooking and other domestic duties. The Tribunal is satisfied that the parties have established a joint household. The Tribunal is satisfied that the couple have joint responsibility for the care and support of children.

20. The Tribunal finds that the nature of the parties’ household attests to the genuine and continuing spousal relationship between the parties.

    Social aspects of the relationship

21. The parties provided statutory declarations and written statements from several third parties concerning their relationship. Photographic evidence was also provided regarding the couple’s social life with a network of friends, family members and members of the church community. The photographic evidence provided showed the applicant, the sponsor and the sponsor’s daughters together and/or with others in a range of settings. The majority of these photographs appear spontaneous and casual, and show a family engaging in social and recreational activities. The applicant also provided formal and informal photographs of the couple’s wedding ceremony in February 2015, and gave oral evidence regarding the sponsor’s family’s acceptance of - and support for - their relationship and the regular activities he engages in with regard to the sponsor’s daughters’ schools and sporting clubs. 

22. On the basis of the evidence before it, the Tribunal is satisfied that the persons represent themselves to others as being married to each other, and that the couple plan and undertake joint social activities. The Tribunal is also satisfied that the relationship is viewed as genuine and continuing in the opinion of the couple’s friends, family and members of their congregation.

23. The Tribunal finds that the social aspects of the relationship attest to the genuine and continuing spousal relationship between the parties.

    Nature of the person’s commitment to each other

24. The couple met in April 2014 in Samoa, having been introduced by the applicant’s sister-in-law. The couple have lived together for over three-and-a-half years, and been married since February 2015. In a written statement provided to the Tribunal, the applicant stated:

    “As our relationship grow and so as our love and commitment as husband and wife to each other and for our family, we as parents try to do what’s best for the kids and involve them in community sports and do stuff together as a family. We are still in working progress but as a father I will always make sure that their needs are met and that they are safe and in a happy environment. At home we hold family prayer together and we do go to church every Sundays as a family and Tuesdays for kids youth night. I do care for my family and will continue to support and provide for them with all the strength I have to fulfil my responsibility as a husband and a father to my family.”

25. In oral evidence, the parties provided a portrait of the extant nature of their relationship; their shared daily care for the sponsor’s daughters; their current circumstances, especially as regards their shared concerns for the sponsor’s sons; and their future aspirations. The applicant gave frank and credible evidence regarding the development of the couple’s relationship over time, the companionship and emotional support they provide each other, and their mutual reliance. The sponsor also spoke of the emotional support the applicant has provided her – and continues to provide - as she grapples with the challenges presented by her sons’ difficult behaviours and ongoing legal issues.

26. In oral evidence, the sponsor stated that she had sought medical [advice]. In response to the Tribunal’s request, documentation was provided to the Tribunal on 2 May 2018 from the applicant’s general [practitioner].

27. On consideration of the evidence, the Tribunal is satisfied regarding the duration of the relationship and the length of time the couple have lived together. The Tribunal is also satisfied that the persons draw on each other for a significant degree of companionship and emotional support, and that they view their relationship as long term.

28. The Tribunal finds that the nature of the persons’ commitment to each other attests to the genuine and continuing spousal relationship between the parties.

29. Having regard to all the circumstances of the relationship, the Tribunal is satisfied that when the application was made and at the time of this decision, the applicant and sponsor had a mutual commitment to a shared life to the exclusion of others. The Tribunal is satisfied their relationship is genuine and continuing. The Tribunal is satisfied the applicant and the sponsor live together. 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. Therefore the applicant meets cls.820.211(2)(a) and 820.221.

    Conclusion

30. 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

31. 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 (Temporary)) visa:

    ·cl.820.211(2)(a) of Schedule 2 to the Regulations; and

    ·cl.820.221 of Schedule 2 to the Regulations.

    Shane Lucas
    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).