1410085 (Migration)

[2015] AATA 3049

1410085 (Migration) [2015] AATA 3049 (9 July 2015)

DECISION RECORD

DIVISION:  Migration & Refugee Division

APPLICANT:  Mr Hardik Kandarpkumar Thakor

MRT CASE NUMBER:  1410085

DIBP REFERENCE(S):  BCC2013/628606

TRIBUNAL MEMBER:  Mary-Ann Cooper

DATE:9 July 2015

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Temporary Business Entry (Class UC) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 457 visa:

·cl.457.321 of Schedule 2 to the Regulations.

Statement made on 09 July 2015 at 4:21pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 2 June 2014 to refuse to grant the visa applicant a Temporary Business Entry (Class UC) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 30 April 2013. At the time the application was lodged, Class UC contained Subclass 457. The criteria for a Subclass 457 visa are set out in Part 457 of Schedule 2 to the Migration Regulations 1994 (the Regulations).

3. The delegate refused to grant the visa on the basis that cl.457.321 was not met because the delegate was not satisfied that the applicant was in a de facto relationship with the primary subclass 457 visa applicant, and accordingly found the applicant was not a member of the primary applicant’s family unit under r.1.12(1)(a).

4. The applicant appeared before the Tribunal on 14 May 2015 to give evidence and present arguments. The Tribunal also received oral evidence from Ms. Bhatt, the primary visa holder and two friends of the applicant.

5. The applicant was represented in relation to the review by his registered migration agent who also attended the hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in this case is whether the applicant is a member of the family unit of the primary visa holder, Ms. Bhatt. Relevantly, this requires consideration as to whether the applicant is in a defacto relationship with her as claimed in his Form 1066 lodged subsequent to her visa grant.

8. “Member of the family unit” is defined in r.1.12 and includes a person who is “a spouse or defacto partner of the family head.”

9. ‘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).

10. In forming an opinion whether they are in a de facto relationship, consideration must be given to all of the circumstances of the relationship. As part of that consideration the Tribunal may consider the matters set out in r.1.09A(3), which includes the financial and social aspects of the relationship, the nature of the household and the persons’ commitment to each other. The reason the Tribunal may, rather than must, consider these aspects of the relationship is that the Subclass 457 visa is a not a class of visa of the type specified in the regulation which requires mandatory consideration of the r.1.09A (3) factors.

11. The categories described in r.1.09A(3) are not exhaustive and that they are not a separate set of requirements in themselves, but may be taken into account in deciding whether the applicant is in a defacto relationship with the primary visa holder, Ms. Bhatt.

12. Persons claiming to be in a de facto relationship for the purpose of certain visas 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 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. However the Temporary Business Entry (Class UC) Subclass 457 visa is not one of the visas listed in subclause (3) of Reg. 2.03A. Consequently there is no requirement that the applicant has been in the de facto relationship for at least the period of 12 months ending immediately before the date of the application.

13. Documents on the relevant Department files demonstrate that Ms. Bhatt, the primary visa holder, applied for a subclass 457 visa on 5 May 2012. Records also indicates that the sponsorship and nomination were approved in June 2012 and she was granted the visa on 26 June 2012. No secondary applicants were included in her visa application which indicated her relationship status as ‘separated.’ Health insurance documents provided to the Department on 14 May 2012 show health cover in her own name only.

14. On 24 April 2013 the applicant lodged an application form 1066 for a subclass 457 visa claiming to be a member of the primary visa holder’s family unit. On 4 June 2013 the Department wrote to the applicant seeking that he provide evidence of his relationship with her. In response several documents appear to have been provided (according to the representative’s covering letter),  however some of them are not on the Department’s file. They included the following documents which are on the file:

    ·     Advice of rent increase from real estate agency to both names.

    ·     Correspondence from the primary visa holder’s employer agreeing to add the applicant as a secondary family member to her nomination.

    ·     A receipt for purchase of a bracelet.

    ·     Health insurance card in both names, and correspondence from the health insurer changing their details to that of a ‘couple’.

    ·     Applicant’s bank statement showing same address as primary visa applicant.

    ·     Affidavit from applicant dated 4 December 2013 in which the applicant states that he and the primary visa holder have known each other for three and a half years and been living together as a couple for two and a half years, that they share expenses and household duties, that others are aware of their genuine and ongoing relationship, that they demonstrate their love for each other and are planning to marry in early 2015.

    ·     Affidavit from the primary visa holder stating that she and the applicant have been living together since they first met and have been in a sexual relationship for 2 and a half years, renting a house together since November 2011, that they share expenses and household duties and support each other financially.

    ·     Form 888 from a friend of the primary visa holder stating that their relationship is genuine and they plan to get married.

15. Prior to the hearing additional documents were also provided as follows:

    ·     Current residential tenancy agreement.

    ·     Bank refusal of finance in both names.

    ·     Utility bill in both names.

    ·     Vodafone application in applicant’s name and accounts in his name for two telephones.

    ·     Several Vodafone accounts with numbers highlighted demonstrating frequency of calls between applicant and the primary visa holder.

    ·     Contract for sale of land in both names (subject to finance) dated 31/3/14.

    ·     Applicant’s tax return for 2013 showing that he claimed the primary visa holder as his spouse/de facto.

    ·     Bank MasterCard showing both names.

    ·     Affidavit from the primary visa holder’s father in India concerning delays with her divorce application from her former husband.

    ·     “Certificate” from her advocate in that matter confirming details in her father’s affidavit.

    ·     Five Form 888s attesting to genuineness of relationship between the applicant and the primary visa holder.

    ·     Photographs of the couple at various locations.

    ·     Receipts for jewellery purchases.

    ·     Cinema tickets.

16. The delegate was not satisfied, on the basis of the limited information  provided, that the relationship was genuine and refused the application. The Tribunal has had the advantage of significantly more information and evidence than was available to the delegate and has formed the view that the applicant has at all relevant times been in a genuine de facto relationship with the primary visa holder.

17. At the hearing that the Tribunal first took evidence from the applicant in which he outlined the commencement and development of their relationship, his eventual marriage proposal to the primary visa applicant and their plans for the future. His evidence of the history of their relationship was consistent with the documentation provided.

18. The oral evidence of the primary visa holder was, with some small exceptions, in all material respects, consistent with the evidence of the applicant.

19. The consistent evidence provided included the features of their shared addresses, their detailed knowledge of each other’s families, a chronology of significant events in the evolution of the relationship, social activities they had attended together, their shared household responsibilities, and their plans for their future together. The evidence given concerning the primary visa holder’s former husband and the reasons for the breakdown of that relationship was also detailed and consistent. In this regard, the Tribunal notes that in the primary visa holder’s subclass 457 visa application she had listed her marital status as ‘separated.’ Several photographs provided demonstrated that the applicant and the primary visa holder shared a close and relaxed relationship with each other, which had been also evident at the hearing, and they had provided each other with much valued companionship over the previous years. Overall the Tribunal found the applicant’s evidence frank, spontaneous and credible.

20. When asked why the applicant had not been included in the primary visa holder’s original subclass 457 visa application, they gave the consistent response that the applicant had hoped to qualify independently for a permanent skilled visa, holding  a subclass 485 visa at the time she had applied for her 457 visa. As he was unable to achieve the required IELTS score, they had decided that he should seek to be joined the primary visa holder’s application as they wanted to remain together. The Tribunal accepts this explanation as plausible and also accepts that the decision to join the applicant to the primary visa holder’s subclass 457 application was made over time and following a natural evolution of the relationship and the level of commitment between them.

21. Two friends of the applicant, with whom he and the primary visa holder had resided, then gave evidence of their knowledge of the relationship. Their evidence was consistent and their knowledge of the couple’s relationship history quite detailed. The Tribunal notes that the primary visa holder’s employer also provided a statutory declaration in which she confirms that she has known the primary visa holder for 5 years and the applicant for over 3 years. She further confirms that they are partners and that she sees the applicant every day when he collects the primary visa holder from work. She maintains that their relationship is genuine and they are happy together and will marry in the future.

22. The Tribunal has considered the evidence summarised above with reference to the relevant regulatory provisions. The Tribunal must be satisfied that the applicant was a ‘member of the family unit’ of the primary visa holder at the time of visa application and now. The applicant claims to be a de facto partner of Ms Bhatt, that is, a member of her family unit.  In the case of subclass 457 visas, the relationship does not have to have been in existence for 12 months prior to the time of visa application, unlike the requirements for certain other visa classes.

23. Having carefully considered all the evidence provided, the Tribunal is satisfied that the applicant and primary visa holder are in a genuine de facto relationship, and have been since November 2011. The Tribunal finds that the applicant and Ms Bhatt provided credible and consistent evidence concerning their relationship and their commitment to one another. Specifically, the Tribunal is satisfied that they have a mutual commitment to a shared life to the exclusion of all others, the relationship between them is genuine and continuing, that they live together now and did so at the time of visa application, and that they are not related by family.

24. Accordingly, the Tribunal finds that the applicant is the de facto partner of the primary visa holder for the purposes of s.5CB(2), and is accordingly a member of her family unit pursuant to r.1.12(1)(a).

25. It follows that the applicant  meets cl.457.321.

    CONCLUSIONS

26. 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 457 visa.

    DECISION

27. The Tribunal remits the application for a Temporary Business Entry (Class UC) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 457 visa:

    ·cl.457.321 of Schedule 2 to the Regulations.

    Mary-Ann Cooper
    Member