Yanti (Migration)
[2019] AATA 2460
•25 April 2019
Yanti (Migration) [2019] AATA 2460 (25 April 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT: Mrs Faradilla Yanti
CASE NUMBER: 1729485
HOME AFFAIRS REFERENCE(S): BCC2015/3125664
MEMBER:Kate Millar
DATE:25 April 2019
PLACE OF DECISION: Adelaide
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 of Schedule 2 to the Regulations; and
·cl.820.221 of Schedule 2 to the Regulations.
STATEMENT MADE ON 26 APRIL 2019 AT 2:54PM
CATCHWORDS
MIGRATION – Partner (Temporary)(Class UK) – Subclass 820 (Spouse) – sponsorship approval limitations – compelling circumstances – previous partner deceased – longstanding relationship – sponsorship approved – decision under review remittedLEGISLATION
Migration Act 1958 (Cth), ss 5, 65
Migration Regulations 1994, Schedule 2, rr 1.15A, 1.20J, cls 820.211, 820.221CASES
Babicci v MIMIA [2004] FCA 1645
He v MIBP [2017] FCAFC 206STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
Mrs Yanti is a citizen of Indonesia. On 26 October 2015 she applied for a Partner (Temporary) (Class UK) visa on the basis of her relationship with Mr Wayne Pellagreen, an Australian citizen.
Her visa application was refused because the delegate found Mr Pellagreen had previously sponsored two partners, and could not be approved as a sponsor for a third partner unless there are compelling circumstances affecting him. As the delegate was not satisfied that there were compelling circumstances affecting Mr Pellagreen the visa application was refused under s.65 of the Migration Act 1958 (the Act).
Mrs Yanti appeared before the Tribunal on 9 January 2014, however it was apparent she required an interpreter, and the hearing was adjourned to 14 January 2019 with the assistance of an interpreter in the Indonesian and English languages. The Tribunal also received oral evidence from Mr Pellagreen and his mother Mrs Daphne Pellagreen. Mrs Yanti was represented in relation to the review by her registered migration agent.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
Mrs Yanti applied for the visa on 26 October 2015 on the basis of her relationship with Mr Pellagreen. 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), and Mrs Yanti must satisfy the primary criteria to be granted the visa.
The delegate refused to grant the visa on the basis that Mrs Yanti did not satisfy cl.820.211 of Schedule 2 to the Regulations which requires her to be sponsored by her spouse Mr Pellagreen.
The issue in the present case is whether Mrs Yanti meets the requirement to be sponsored by Mr Pellagreen; and, if so, whether she meets the other requirements in cl.820.221. This in turn requires consideration of whether she held a substantive visa at the time of her application and is the spouse of Mr Pellagreen as defined in the Act and Regulations.
Is Mrs Yanti sponsored?
Clause 820.211 requires at the time of application, the applicant meets one of several alternative sub criteria. These include 820.211(2)(c) which requires that the applicant was sponsored by her sponsor. At the time of the decision, cl.820.221(4) requires that the sponsorship mentioned in cl.820.211(2)(c) has been approved by the Minister and is still in force.
Approval of sponsorship is subject to limitations contained in r.1.20J of the Regulations. This sets a limit on the number of people that a person can sponsor in a lifetime and a minimum time that must lapse between each sponsorship.
As it applies in this case, r.1.20J states the Minister must not approve the sponsorship of the applicant unless satisfied not more than one other person has been granted a ‘relevant permission’ as the spouse or defacto partner or prospective spouse of the sponsor. This has the effect that a person cannot sponsor more than two people. In this case, a relevant permission means a visa that allows the sponsored person to remain in Australia indefinitely (r.1.20J(1A)).
The Minister may approve the sponsorship despite this provision if satisfied there are compelling circumstances affecting the sponsor (r.1.20J).
Mr Pellagreen has sponsored two previous partners which resulted in the grant of a permanent visa; Ms Mariko Clarkson in 1996, and Ms Laura Williams in 2003.
As a result, the sponsorship must not be approved unless there are compelling circumstances affecting the sponsor.
The expression ‘compelling circumstances’ is not defined in the legislation. The Tribunal must consider whether the circumstances are such that they evoke interest or attention in a powerfully irresistible way: Babicci v MIMIA [2004] FCA 1645 or are ‘so powerful that they lead the [Tribunal] to make a positive finding that the [provision] should be waived’: Babicci v MIMIA [2005] FCAFC 77.
Departmental policy contained in the procedures advice manual states in regard to compelling circumstances:
7.2 Compelling circumstances affecting the interests of the sponsor
Under policy, compelling circumstances affecting the interests of the sponsor include instances where:
·the applicant and their sponsor have a dependent child who is dependent on each of them or
·the death of the previous partner or
·the previous spouse abandoning the sponsor and there are children dependent on the sponsor requiring care and support or
·the new relationship is longstanding.
These examples are not exhaustive. The purpose of the sponsorship limitation is to prevent abuse of the partner/fiancé migration provisions and this should be kept in mind when deciding whether to exercise the waiver.
Every aspect of the sponsor's circumstances is relevant to the existence of compelling circumstances. Although no definitive list can be given, some general aspects that may be particularly important are:
·the nature of the hardship/detriment that would be suffered (by the sponsor) if the sponsorship were not approved.
·the extent and importance of the ties the sponsor has to Australia, and the consequent hardship/detriment that would be suffered if the sponsorship were not approved and the sponsor were to feel compelled to leave Australia to maintain their relationship with the applicant.
Mr Pellagreen and Mrs Yanti met on 5 May 2013 in Bali, and married in Australia on 15 May 2015. They rely on the relationship being a long term relationship, as they have been married for three years and eight months, their commitment to each other, Mr Pellagreen’s ties to Australia as an indigenous Australian and their attempts at IVF treatment.
The Tribunal contacted Mr Pellagreen’s mother Mrs Daphne Pellagreen. She said she speaks to Mrs Yanti regularly and supports the relationship. She attended the wedding. Mrs Pellagreen was not expecting the Tribunal to call and her evidence about the genuine nature of the relationship was persuasive, as she does not have any interest in supporting a relationship that is not in her son’s best interests.
Mr Pellagreen is currently living in Hobart and Mrs Yanti is in Darwin, which was of some concern as the couple are currently living apart. Mr Pellagreen is a travel agent and said that during the wet season there is little work in Darwin. He said he has family in Tasmania and had a place to live and work within three days of arriving. He said he is of indigenous heritage and wants to spend time connecting with his heritage. On being asked about time they have spent apart, Mrs Yanti said she has travelled outside Australia without Mr Pellagreen since they married as Mr Pellagreen does not like the food in Indonesia. Mr Pellagreen said he did not go because he had to look after the property as there was student in the property and the dogs required care.
While the Tribunal had some concerns about the periods the parties had spent apart, and that they were currently living apart, ultimately on the information before it, the Tribunal was satisfied that the parties are living separately on a temporary basis.
Mrs Yanti works 40 – 45 hours per week in the dry season and 15 – 20 hours per week in the wet season which provides an income. Mr Pellagreen owns two properties, and said he was taken advantage of by a property developer and has a large mortgage for both properties, one of which is a bad investment and he would make a loss if he sold this property. He said that with two incomes it is easier to meet mortgage repayments. The Tribunal finds that Mr Pellagreen is to some degree reliant on income earned by Mrs Yanti.
On being asked the effect on the parties if the visa is refused, Mrs Yanti said they are married and do not want to be separate, as they met in 2013 and have been together for six years. She said they have tried IVF twice but failed and they plan to try once more. Both parties said each attempt cost $20,000 and were asked to provide some evidence of their attempts at IVF after the hearing. The parties provided a number of bank account statements where transfers are annotated “IVF” in a handwritten note, but with no direct connection to payments for IVF other than is one payment to Repromed, a payment to a medical practitioner and a payment for day surgery.
While the evidence in support of the IVF treatment is somewhat equivocal, the Tribunal accepts the oral evidence of the parties that they have attempted IVF twice at considerable cost, and that Mrs Yanti intends to attempt IVF again. This effort would be not be possible financially and by reason of physical separation if Mrs Yanti is not in Australia.
On being asked the circumstances he considered compelling that affected him, Mr Pellagreen said one of his previous partners is deceased. He said if Mrs Yanti has to leave he would be devastated, and that his wife should be able to stay as he is an indigenous Australian.
Mr Pellagreen has significant ties to Australia as an indigenous Australian and has significant ties to Australia with his family members including his mother and his sister living in Australia.
While this is a finely balanced case, on balance I accept the longstanding nature of the relationship, the financial support Mrs Yanti provides in assisting with the mortgage and the parties’ attempts at IVF and the nature of Mr Pellagreen’s ties to Australia amount to compelling circumstances affecting Mr Pellagreen.
As a result, the sponsorship is approved, and cl.820.221(4) is met.
Does Mrs Yanti meet the other requirements in cl.820.221?
To meet cl.820.221, as it applies to her situation, Mrs Yanti must also continue to meet cl.820.211(2). In addition to the sponsorship requirement, she must also continue to be the spouse of an Australian citizen and to have held a substantive visa at the time of her application, unless other considerations apply. Mrs Yanti held a substantive subclass 600 (tourist visa) at the time of her application and meet cl.820.211(2)(d).
The remaining issue is whether at the time of the visa application and the time of this decision she was and is the spouse of Mr Pellagreen.
Is Mrs Yanti the spouse of Mr Pellagreen?
‘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;
· Have 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?
Mrs Yanti and Mr Pellagreen married in Australia on 15 May 2015. There is nothing to indicate this is not a marriage that is valid for the purposes of the Act.
On the basis of the marriage certificate, 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?
In looking at whether the parties have a mutual commitment to a shared life to the exclusion of all others, the relationship is genuine and continuing and the couple live together or do not live separately and apart on a permanent basis, regard must be had to the factors in r.1.15A, and the Tribunal examined each of these in turn.
Financial aspects of the relationship
The financial aspects of the relationship include the joint ownership of assets, joint liabilities, extent of pooling of financial resources, any legal obligations owed to the other party and any sharing of day-to-day household expenses.
The parties hold car insurance in joint names, and I infer they jointly own a motor vehicle. In regard to legal aspects of the relationship, Mr Pellagreen provided a will that is stated to be made in contemplation of his marriage to Mrs Yanti and naming her as a beneficiary of his state. Mr Pellagreen names Mrs Yanti as his spouse in his 2016 tax return. There is car insurance in both names.
The parties have a joint account and Mr Pellagreen has accounts in his sole name. Mrs Yanti’s wage goes into the joint account for living expenses and Mr Pellagreen’s wage goes to his account to pay the mortgage. There is a credit card in Mr Pellagreen’s name.
I am satisfied on the basis of these accounts that they pool resources and share day to day household expenses.
Nature of the household
The nature of the household includes any joint responsibility for care and support of children; parties' living arrangements; and any sharing of housework.
There are no children of the relationship. While at the time of the hearing Mr Pellagreen was not living in the same household as Mrs Yanti, for the reasons outlined above I am satisfied this is a temporary arrangement and accept this was so that he could obtain work and then return to the Northern Territory. I am satisfied that when they are present in the same household they share household tasks, with Mrs Yanti doing the cleaning, washing and cooking and Mr Pellagreen performing outside tasks.
Social aspects of the relationship
The social aspects of the relationship include whether parties represent themselves to other people as being married to each other, the opinion of friends and acquaintances about the nature of the relationship, and any basis on which the persons plan and undertake joint social activities.
Mrs Yanti and Mr Pellagreen provided statements in support of the relationship from Mr Pellagreen’s mother and sister, and the Tribunal also took oral evidence from his mother, who supports the relationship. They provided a statement form Mrs Yanti’s sister and a friend who state he leased a house with Mr Pellagreen and Mrs Yanti for two years in Bali. The friend states Mr Pellagreen would give cash to him to give to Mrs Yanti for everyday expenses until his arrival in Bali.
Another friend, Ms Denise Ballie also provides a statement in support of the relationship. Ms Ballie also employs Mrs Yanti in her business.
I am satisfied the parties represent themselves to others as married, and that their family views them as a married couple. They have travelled together out of Australia at times and as such have had joint social activities.
Nature of the commitment to each other
The nature of the persons' commitment to each other includes the duration of the relationship, the length of time they have lived together, the degree of companionship and emotional support they draw from each other, and whether they see the relationship as long-term.
The parties have been in a relationship since 2013 and married from 2015. They were in a scooter accident in May 2015, and provide statutory declarations made about the accident that shows support of each other at this time. I am satisfied they provide each other with companionship and emotional support and see the relationship as long term.
Having considered the factors in r.1.15A, I am satisfied the parties have a mutual commitment to a shared life to the exclusion of all others, the relationship is genuine and continuing and they do not live separately and apart on a permanent basis. It follows that the requirements of s.5F(2) are met at the time of the application and continue to be met at the time of this decision.
Therefore the applicant meets cl.820.211(2)(a). Having found the applicant meets cl.820.211(2)(a)(c) and (d), she meets cl.820.211. As she continues to meet cl.820.211(2), and as the sponsorship has been approved an is in force, she also meets cl.820.221.
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
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 of Schedule 2 to the Regulations; and
·cl.820.221 of Schedule 2 to the Regulations.
Kate Millar
Member
Key Legal Topics
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Immigration
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Administrative Law
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Statutory Interpretation
Legal Concepts
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Judicial Review
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