Yamabe (Migration)

[2018] AATA 3002

Yamabe (Migration) [2018] AATA 3002 (21 June 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Yukiko Yamabe

CASE NUMBER:  1700631

DIBP REFERENCE(S):  BCC2015/2252615

MEMBER:James Lambie

DATE AND TIME OF

ORAL DECISION AND REASONS:          21 June 2018 at 10:06 am (QLD time)

DATE OF WRITTEN RECORD:                4 July 2018

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal sets aside the decision under review and substitutes a decision that the visa be granted.

Statement made on 04 July 2018 at 8:35am

CATCHWORDS
Migration – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – Whether the parties are in a genuine relationship – Young child of the relationship – Various aspects of relationship suggest the relationship is genuine and ongoing – Decision set aside and substituted

LEGISLATION
Migration Act 1958 (Cth), ss 5CB, 5F, 65
Migration Regulations 1994 (Cth), rr 1.09A, 1.15A

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 22 December 2016 to refuse to grant the visa applicant a Partner (Temporary) (Class UK) Subclass 820 visa under the Migration Act 1958 (the Act).

2. At the hearing on 21 June 2018 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

   STATEMENT OF DECISION AND REASONS

3. The applicant, Ms Yamabe, is a citizen of Japan who arrived in Australia on 3 November 2012 on a Working Holiday (subclass 417) visa.  She lodged a partner (subclass 820 and subclass 801) visa application on 6 April 2015 which was refused by the delegate of the Minister on 22 December 2016.

4. The application to the Tribunal for review of this decision was initially dismissed on 9 March 2018 when the applicant and sponsor failed to attend the scheduled hearing. The review was reinstated on Ms Yamabe’s application and the matter was finally heard on 21 June 2018.  I received oral evidence from Ms Yamabe and her sponsor, Mr Kyle Dawes.  Ms Yamabe and Mr Dawes also provided a quantity of documentary material, including bank records, statutory declarations, address records, photographs and a birth certificate.

5. The parties gave evidence that they commenced their relationship in November 2013 and moved in together in November 2014.  They became engaged to be married on 12 February 2015.  Their daughter, Yuana, was born on 7 August 2016.  The family shares rented accommodation in Maroochydore, Queensland.

   Financial aspects of the relationship

6. Mr Dawes is a qualified floor and wall tiler.  Ms Yamabe has worked in Australia as a fruit picker, in retail and as a waitress and, since the birth of their daughter, has been a stay-at-home mother.  Mr Dawes is the family breadwinner and is responsible for the household expenses through his own bank account.  He transfers money to, or withdraws cash for, Ms Yamabe as and when she needs it.  They gave evidence that, under this arrangement, they have no need for a joint account.  They say that their lifestyle is simple and they do not wish to complicate it.  On the evidence before me, I am satisfied that they share the household income and expenses in a traditional way.

   Nature of the household

7. The evidence of the parties is that Ms Yamabe does the ‘inside’ housework such as the cooking and cleaning and that Mr Dawes takes care of the ‘outside’ tasks.  Their household arrangements otherwise revolve around the care of their daughter.  This is, naturally, their highest priority.  It appears not to have been in evidence before the delegate, perhaps because the baby was born between the lodgement of their last round of documents and the date of the decision.  Their joint responsibility for the care and support of their daughter is the most important component of their household arrangements and I accord it significant weight.

   Social aspects

8. The parties supplied copies of text messages, family correspondence and photographs that indicate that that each is accepted by the other’s family as being in a genuine and committed relationship.  Mr Dawes has visited Ms Yamabe’s family in Japan and her family has visited Australia to stay with the couple and meet Mr Dawes’ family.  All the evidence indicates that the couple is held in genuine affection by their extended families. 

9. On the material before me, I am satisfied that couple has been in a committed de facto relationship since November 2014, from which both parties derive companionship and emotional support and which they consider to be long term. Accordingly, I am satisfied that, having regard to the matters prescribed under regulations 1.15A and 1.09A that Ms Yamabe is the spouse or de facto partner of Mr Dawes as defined by sections 5F and 5CB of the Migration Act 1958.

   DECISION

10. The Tribunal sets aside the decision under review and substitutes a decision that the visa be granted.

    James Lambie
    Senior Member