What Constitutes Member of a family Unit?

Carle (Migration) [2023] AATA 879 (4 April 2023)

Tribunal: Member R Matheson

Original Government decision 
A representative of the Minister of Immigration (the representative) declined to approve the provisional Partner visas for the visa applicants.

AAT decision
The Tribunal referred the applications for provisional Partner visas back to the Department of Home Affairs with an instruction that the visa applicants fulfilled the relevant criteria.

Details
The main visa applicant (the applicant) is a Vietnamese woman who applied for a provisional partner visa based on her marital relationship with the sponsor, an Australian citizen.

The representative rejected the provisional partner visa, expressing doubt about the applicant’s status as the sponsor’s spouse.

As the primary applicant’s visa was refused by the representative, the visa for her dependent child (secondary visa applicant) was also denied.

Issue
The Tribunal needed to determine if the applicant met the definition of a spouse of the sponsor as outlined in s5F of the Migration Act 1958 (the Migration Act).

Relevant law 
Section 5F(2)(a) of the Migration Act defines ‘spouse’ for migration purposes. It states that a person is considered a spouse of another if they are in a married relationship, mutually committed to sharing life together, living together or not living apart permanently, and have a genuine and ongoing relationship.

Regulation 1.15A of the Migration Regulations 1994 specifies factors for decision-makers to consider when determining whether the visa applicant is the spouse of the sponsor under the Migration Act. These factors include financial aspects of the relationship, nature of the household, social aspects of the relationship, commitment between the individuals, and any other pertinent factors.

Schedule 2, clauses 309.211, 309.212, 309.213, 309.221, and 309.311 of the Migration Regulations outline the criteria for granting a Partner (Provisional) visa (Class UF).

Summary of reasons for decision
The Tribunal assessed whether the applicant and sponsor met the criteria for a spousal relationship under the Migration Act, considering:

Financial aspects: The Tribunal determined that the sponsor provided adequate financial support to the applicant and her daughter. They also demonstrated knowledge of each other’s employment history, income, and living situations.
Nature of the household: Evidence such as a joint lease and details of living arrangements, household responsibilities, and support for the applicant’s daughter indicated that they shared a household. The Tribunal was convinced of their shared living arrangements.
Social aspects: The Tribunal examined how the couple presented themselves to others, opinions of acquaintances, and their joint social activities. It concluded that they represented themselves as married, with supportive recognition from family and friends.
Commitment: The Tribunal evaluated the duration of the relationship, emotional support, and future plans of the parties. It found that they viewed their relationship as stable, genuine, and long-term, with a commitment to caring for the applicant’s daughter.
Based on these findings, the Tribunal confirmed that the requirements for a Partner (Provisional) (Class UF) visa were met both at the time of application and at the time of decision. It also affirmed that the secondary applicant was the applicant’s dependent child, wholly supported by her. Consequently, the Tribunal referred the applications for reconsideration by the Minister.

Full decision 
The complete decision can be accessed on AustLII.

Glossary
Remit: Sending the decision back means returning the matter to the department for a fresh decision in line with our instructions or recommendations.

Written by Ross Ahmadzai

8 Apr, 2024

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