1415061 (Migration)

[2015] AATA 3011

1415061 (Migration) [2015] AATA 3011 (2 July 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1415061

DIBP REFERENCES:  OSF2014/017177; OSF2014/030258

MEMBER:Rosa Gagliardi

DATE OF ORAL DECISION:  2 July 2015

TIME OF ORAL DECSION:  12:10pm

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Partner (Provisional) (Class UF) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 309 (Partner (Provisional)) visa:

·cl.309.211 of Schedule 2 to the Regulations;

·cl.309.221 of Schedule 2 to the Regulations; and

·r.2.03A.

Statement made on 03 July 2015 at 3:07pm

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

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 [in] August 2014 to refuse to grant the visa applicant a Partner (Provisional) (Class UF) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa [in] May 2014 on the basis of her relationship with her sponsor, the review applicant. At that time, Class UF contained only one subclass: Subclass 309 (Partner (Provisional). The criteria for the grant of this visa are set out in Part 309 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.309.211(2).

3. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.309.211(2) due to insufficient evidence that the parties had been living in a de facto relationship and were not living apart and separately on a permanent basis.

4. The review applicant appeared before the Tribunal on 2 July 2015 to give evidence and present arguments. The Tribunal also received evidence over the phone from the visa applicant in Sri Lanka.  In addition, several of the review applicant’s [work colleagues]

   
   

   gave evidence at hearing to support the applicant’s claims.

5. The review applicant was represented in relation to the review by her registered migration agent. The representative attended the Tribunal hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Whether the parties are in a spouse or de facto relationship

7. Clause 309.211(2) and 309.221 require that at the time the visa application was made, and at the time of this decision the visa applicant is the spouse or de facto partner of an Australian citizen or Australian permanent resident or an eligible New Zealand citizen. In the present case the visa applicant claims to be the de facto partner of the review applicant who is Australian Permanent Resident.

   Are the parties in a de facto relationship?

8. ‘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).

9. 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 visa applicant’s and review applicant’s household and their commitment to each other as set out in r.1.09A(3) which is attached to this decision.

   Inception and development of the relationship

10. The applicant and her sponsor are [age] and [age] years of age respectively and came to know one another in May 2008, having met when the sponsor started voluntary work with the applicant’s employer in Sri Lanka.  At hearing the sponsor gave credible evidence about how initially they came to develop a strong friendship.  They started a physical relationship in April 2009 and the sponsor gave the applicant a ring to mark their commitment to each other [in] May 2009.

11. The parties concealed their relationship from families and friends in Sri Lanka given the lack of acceptance of same sex couples in that country.  The Tribunal has sighted evidence submitted by the migration agent regarding the criminalisation of same sex conduct [see Human Rights Violations Against Lesbian, Gay, Bisexual, and Transgender (LGBT) People in Sri Lanka: A Shadow Report, submitted by Equal Ground, Sri Lanka, Center for International Human Rights of Northwestern University School of Law, Heartland Allicance for Human Needs & Human Rights, Global Initiative for Sexuality and Human Rights December 2013].

12. Both parties were open about having had limited relationships with men in the past but explained that the bond between them is stronger than they have ever experienced and that this relationship is a committed one, which they both saw as long term.

13. The sponsor came to Australia and was granted permanent residency on the basis of her skilled visa. 

14. The sponsor is financially independent and is working as a case officer with [an employer] in Melbourne which is consistent with her work undertaken in Sri Lanka with [children].

15. The parties claim that they have now been in a committed relationship for 6 years and that the separation is having considerable emotional strain on them both.

    Regulation 1.09A

    Financial aspects of the relationship

16. The visa applicant at hearing gave credible evidence that had been corroborated by the sponsor, about the extensive assistance provided to the visa applicant in the past years, particularly when the visa applicant has been hospitalised and has required surgery.  Evidence was submitted of the sponsor having taken out a personal loan of $20,000 to cover medical and other living expenses as the visa applicant’s earnings are limited.

17. In addition, the sponsor has sent the visa applicant her bank account user name and password, reflective of the degree of trust in the relationship.  In Sri Lanka they shared their expenses but did not open a joint bank account as they were concerned that the true nature of their relationship would become public knowledge. 

18. Whilst the Tribunal usually does not place significant weight on the drawing up of wills in parties’ names due to the ease with which these can be drawn up and rescinded, the Tribunal does note that evidence of such wills has been provided which shows each of the parties as the other’s 100% beneficiary.  Similarly, whilst the Tribunal does not place significant weight on superannuation nomination, the Tribunal does place some weight on the fact that the sponsor’s superannuation nomination shows the applicant as the sole beneficiary, in light of other persuasive evidence submitted pointing to the relationship being a genuine and continuing one as required by Regulation 1.09A.

19. The Tribunal has also sighted evidence of the sponsor having sent the visa applicant funds since her arrival in Australia in 2013, to provide some financial support and assist with the applicant’s day-to-day living costs as required.  Invoices have also been submitted showing that the sponsor has purchased the visa applicant a lap top computer and software as well as a ring.

20. The parties advised that the funds remitted to the visa applicant have been used to pay for the applicant’s Diploma course, including for the visa applicant’s intended travel to Australia as a visitor in December 2013; a visa which was refused.

21. The Tribunal does not make any adverse inference from the parties not having purchased significant assets together.  This is particularly so given that the parties have actively sought not to reveal the true nature of their relationship in Sri Lanka.

    Nature of the household

22. The parties have not set up a household together as such and have not lived together as de facto partners, but the Tribunal is satisfied that this is only due to the parties’ family beliefs and societal disapproval of same sex relationship in Sri Lanka.  At the time of application the parties pleaded that the Department waive the 12 month de facto requirement on the basis of compelling and compassionate reasons.  Regulation 2.03A(3)(a) – PAM 3 Div2.1/reg 2.03A, section 7, “Compelling and compassionate circumstances”, does, however, state the following:

    In all cases, the applicant should be given an opportunity to present a case as to why the decision maker should not apply this standard 12 month minimum relationship period.

23. The Tribunal concludes that given societal attitudes and the laws criminalising same sex unions in Sri Lanka, the de facto requirement ought to be waived at the time of application in this case, particularly as the Tribunal has found that the evidence overwhelmingly demonstrates that the parties are in a genuine and committed de facto partnership of some 6 years’ duration.  In addition, the applicant’s inability to live together is something that has been outside the parties’ control and a source of distress to them. 

24. In any event, since the application was lodged, the Full Federal Court of Australia in its decision SZOXP v Minister for Immigration and Border Protection FCAFC 69 (11 June 2015) held that:

    …there is no requirement that the couple previously live together in the definition of a “de facto relationship” or in the requirement that the couple “do not live separately and apart on a permanent basis”. This conclusion is based upon the plain words of s5CB of the Migration Act. It is reinforced by the legislative history of the section and the long history of the meaning of the phrase “live separately and apart” in ecclesiastical law and matrimonial law. The conclusion is also consistent with the purpose of the provision…

25. Further, in the decision it was also held that there is no reason why people cannot be in a marriage-like relationship without having previously lived together, given that section 5F of the Migration Act defines persons to be in a married relationship without any express requirement of having previously lived together, “Rather, that definition, in very similar terms to s5CB(2), provides that they must have a valid marriage and fulfil the same requirements as contained in s5CB: a mutual commitment to a shared life to the exclusion of all others; the relationship between them is genuine and continuing; and they live together; or do not live separately and apart on a permanent basis”. 

26. The parties have provided evidence of having travelled together and stayed in hotels where possible, without arousing suspicions from their families about the fact they were attempting to cohabitate and give expression to their relationship as a couple.  The sponsor has travelled to Sri Lanka on several occasions to be with the visa applicant as reflected by movement records.

27. The parties also gave realistic evidence about the way that they were able to conduct what appeared to their respective families a strong friendship given their families were already known to one another and the parties could visit each other as friends without drawing attention to their de facto partnership.  Both parties did, however, give similar accounts of the visa applicant having been beaten by [a relative] when it became evident that the relationship seemed to be outside what would be considered a simple friendship between two women.

28. The Tribunal is satisfied that the parties have made every effort to live together and that they would have done so already if they had been in a position to do so.  The Tribunal also accepts that the visa applicant’s strong motivation to live in Australia with the applicant, is underlined by the aspiration to be open about her relationship with the sponsor without fear.

29. The Tribunal is therefore satisfied that the parties have not been living separately and apart on a permanent basis.

    Social aspects of the relationship

30. Given the parties families’ would find it difficult to come to terms with the parties openly living in a same sex de facto partnership, the Tribunal does not find it surprising that they do not have statements of support from families or friends in Sri Lanka.  The parties both gave persuasive evidence about how the visa applicant is isolated in Sri Lanka and was not able to confide in anyone about her relationship to the sponsor.  She has concealed from her family the reason she is coming to Australia, stating instead that she is coming to Australia to study and work.  At hearing with the Tribunal the visa applicant went to the expense of providing her evidence from a hotel room which the sponsor paid for, to ensure that she could speak without fear.

31. The Tribunal also found the written and verbal evidence provided by two of the sponsor’s [colleagues] to be convincing and detailed.  Both colleagues discussed the isolation and distress experienced by the sponsor in the work place when she felt she had to keep her sexuality and the relationship hidden.  Both witnesses recounted that with time the sponsor was able to reveal her difficulties in being separated from the visa applicant and that she was in a same sex relationship.  The visa applicant also had had contact with [the two colleagues] and this gave the witnesses a good deal of insight into the relationship.

    Nature of persons’ commitment to each other

32. The Tribunal accepts that this is a long-standing relationship.  Both parties gave spontaneous evidence that whilst they would not be able to adopt or have children of their own, they both had experience in working with children and hoped to foster children.  They both envisaged having children in their lives as part of their voluntary work to which both appeared committed.

33. The Tribunal has also sighted frequent and consistent evidence of communication between the parties during the sponsor’s absence from Sri Lanka showing the parties providing emotional support to one another.  Photos have also been submitted showing the parties together and with others, including family members in which they would have posed socially as friends. 

34. On the basis of the above the Tribunal is satisfied that the requirements of s.5CB(2) are met at the time of application and decision and the visa applicant meets cl.309.211 and cl.309.221.

    Additional criteria for a de facto relationship met

35. 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).

36. The Tribunal is satisfied that the parties were in a de facto relationship for at least 12 months prior to the date of application.  The application was made [in] May 2014 and that parties commenced a de facto partnership in 2009.

37. The Tribunal is also satisfied that at the time of application the parties’ were both over 18 years of age as evidenced by their identity documents.

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

39. 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 309 visa.

    DECISION

40. The Tribunal remits the application for a Partner (Provisional) (Class UF) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 309 (Partner (Provisional)) visa:

    ·cl.309.211 of Schedule 2 to the Regulations;

    ·cl.309.221 of Schedule 2 to the Regulations; and

    ·r.2.03A

    Rosa Gagliardi
    Member

    
    

    ATTACHMENT  -  Extract from Migration Regulations 1994

    1.09ADe 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).