1407527 (Migration)

[2015] AATA 3344

1407527 (Migration) [2015] AATA 3344 (20 August 2015)

DECISION RECORD

APPLICANT:  Mr Mingyang Liu

MRT CASE NUMBER:  1407527

DIBP REFERENCE(S):  CLF2011/61667 CLF2014/57564

TRIBUNAL MEMBER:  Helena Claringbold

DATE:20 August 2015

PLACE OF DECISION:  Sydney

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.801.211 of Schedule 2 to the Regulations; and

·cl.801.221 of Schedule 2 to the Regulations; and

·r.2.03A.

Statement made on 20 August 2015 at 7:36am

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW OF A SUBCLASS 801 VISA REFUSAL

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 16 April 2014 to refuse to grant Mr Mingyang Liu, a Partner (Residence) (Class BS) visa under s.65 of the Migration Act 1958 (the Act).

2. Mr Liu, born on 15 November 1988 is a national of China.   An application for the visa was made on 15 April 2011 on the basis of his relationship with Ms Chun Lee Wu, who is an Australian citizen, born in Vietnam.   

3. The delegate refused to grant the visa on the basis that Mr Liu did not satisfy cl.801.221(2) because the delegate was not satisfied that Mr Liu is the de facto partner of Ms Wu.

   REVIEW

4. Mr Liu requested review of the delegate’s decision and provided the Tribunal with a copy of the delegate’s decision record.  He appeared before the Tribunal on 19 June 2015 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Wu.  The Tribunal hearing was assisted by the services of an interpreter in the Mandarin and English languages.  The applicant was represented in relation to the review by his registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in the present case is whether Mr Liu is the de facto partner of Ms Wu as defined in s.5CB of the Act.

7. The Tribunal has taken into consideration all the evidence in the Departmental case file CLF2014/57564, folio numbered 1-240, and the Tribunal’s case file 1407527, folio numbered 1-271, and the oral evidence given by both parties at the Tribunal’s hearing.

   What is the background of this case based on all the evidence before the Tribunal?

8. Mr Liu is 26 years old.  On 4 February 2009, he arrived into Australia as the holder of a Student visa. He has not declared any previous relationships.  His parents reside in China. 

9. Ms Wu is 58 years old. She previously married Mr Kai Cheng Chan.  The marriage began on 28 September 1981 and ended in 1996.  There are 2 children from this marriage, a daughter, Miss Shu Ting, born on 4 August 1982 and a son, Mr Heng Wei, born on 27 December 1988.  Both children reside in Australia.  Her father is deceased, her mother, Su and brother, Hung reside in Australia. 

10. Mr Liu and Ms Wu’s met in 2009 in Canberra and their de facto relationship began on 11 April 2010 D1 f30. 

    RELEVANT LAW

11. At the time of application, 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. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria. Relevantly to this matter the primary criteria include cl.801.221.

12. ‘De facto partner’ is defined in s.5CB of the Act and provides that a person is in a de facto relationship with another person to whom they are not married if they have a mutual commitment to a shared life to the exclusion of all others, the relationship is genuine and continuing, the couple live together, or do not live separately and apart on a permanent basis, and the couple are not related by family: s.5CB(2).

13. In forming an opinion whether they are in a de facto relationship consideration must be given 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.1.09A(3) which is attached to this decision.

    Is the applicant the spouse or de facto of an eligible citizen?

14. The Tribunal is satisfied the review applicant is, at the time of application and at the time of decision is sponsored by his sponsor who is an Australian citizen (refer: D1 f72).

    Are the parties in a spouse or de facto relationship? Are the validly married?

15. There is no evidence before the Tribunal that the parties have married.

    Are the other requirements for a de facto relationship met?

16. The Tribunal must consider all the circumstances of the relationship (including the matters specified in r.1.09A) in determining whether the parties are in a “married relationship” as defined by s.5CB(2).

17. The Tribunal has had regard to the parties’ financial relationship; the nature of their household; the social aspects of the relationship; and the nature of their commitment to each other. On these aspects the Tribunal has considered all the evidence before it and is satisfied the facts of this case are as follows: The parties share several bank accounts as well as a personal loan (refer: D1 f120-141).  They have shared utility accounts and other general expenses D1 f103-122).  Additionally the sponsor has accounts dealing with loan and investments (refer: D1 f80-102).  The parties have limited social interaction with others.  They are reticent about disclosing their relationship.  It began as a secretive affair, primarily as a result of their own perception as how others would view their relationship.  There is limited evidence from, friends and colleagues about their relationship.  Recently the parties travelled together and the sponsor met the applicant’s family.   They have resided at different addresses and at one stage lived apart for a time but resumed cohabitation.  They share household duties and a bohemian existence.  They intend to purchase a property and develop the applicant’s music career to a point where the sponsor will not need to work.  They have been in a de facto relationship since April 2010 and continue to live together as de facto partners.

18. The Tribunal has considered the evidence separately and as a whole.  The Tribunal is satisfied by the parties’ oral evidence at hearing that they demonstrate a knowledge of each other’s lives which is commensurate with a couple in a genuine and ongoing de facto relationship. In respect of whether there is a mutual commitment to a share life as de facto partners to the exclusion of all others and that their relationship is genuine and continuing and that they live together on a permanent basis the Tribunal accepts the parties’ oral evidence as presented at hearing.

19. On the basis of the above the Tribunal is satisfied that the requirements of s.5CB(2) are met at the time of decision. Therefore, the applicant meets cl.801.221(2)(c).

    Are the additional criteria for a de facto relationship met?

20. Persons claiming to be in a de facto relationship for a partner visa must also meet the additional criteria in r.2.03A. These are: that the couple are both at least 18 years of age; and with limited exceptions, that the visa applicant has been in the de facto relationship for at least the period of 12 months ending immediately before the date of the application, unless he or she can establish compelling and compassionate circumstances for the grant of the visa. The requirement that the relationship existed for 12 months prior to the application does not apply in certain circumstances where the sponsor is or was a humanitarian visa holder, or for applications made on or after 9 November 2009, where the de facto relationship has been registered under a relevant State or Territory law: r.2.03(4), (5).

21. The parties’ evidence is that they commenced living together as de facto partners on 11 April 2010 and the visa application was made on 15 April 2011.  Therefore, on the evidence, the relationship existed for more than 12 months prior to the application.  At the time the visa application was made, Mr Liu was 22 years old and Ms Wu was 54 years old; therefore, the parties were at least 18 years old.  Therefore, the applicant meets the criteria of r.2.03A.

22. For these reasons the Tribunal is satisfied that the applicant meets the additional criteria prescribed in r.2.03A.

23. 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.

24. For the reasons above, the applicant does not satisfy the criteria for the grant of the visa.

    DECISION

25. 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.801.211 of Schedule 2 to the Regulations; and

    ·cl.801.221 of Schedule 2 to the Regulations; and

    ·r.2.03A.

    Helena Claringbold
    Member

    ATTACHMENT - Extract from Migration Regulations 1994

    1.09A     De facto partner and de facto relationship

    (1)For subsection 5CB (3) of the Act, this regulation sets out arrangements for the purpose of determining whether 1 or more of the conditions in paragraphs 5CB (2) (a), (b), (c) and (d) of the Act exist.

    Note 1   See regulation 2.03A for the prescribed criteria applicable to de facto partners.

    Note 2   The effect of subsection 5CB (1) of the Act is that a person is the de facto partner of another person (whether of the same sex or a different sex) if the person is in a de facto relationship with the other person.

    Subsection 5CB (2) sets out conditions about whether a de facto relationship exists, and subsection 5CB (3) permits the regulations to make arrangements in relation to the determination of whether 1 or more of those conditions 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 in a de facto relationship with 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).