1418387 (Migration)

[2016] AATA 3264

1418387 (Migration) [2016] AATA 3264 (10 February 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Lai Wah Wallis Chiu

CASE NUMBER:  1418387

DIBP REFERENCE(S):  CLF2013/94542

MEMBER:Helena Claringbold

DATE:10 February 2016

PLACE OF DECISION:  Sydney

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 (Temporary)) visa:

·cl.820.211 of Schedule 2 to the Regulations

·cl.820.221 of Schedule 2 to the Regulations

·r.2.03A

Statement made on 10 February 2016 at 7:26am

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision of a delegate of the Minister for Immigration on 23 October 2014 to refuse to grant Ms Lai Wah Wallis Chiu, the applicant, a Partner (Temporary) (Class UK) visa under s.65 of the Migration Act 1958 (the Act).

2. Ms Chiu applied for the visa on 30 April 2013, on the basis of her relationship with Mr Mark Kenny, her sponsor. 

3. The delegate refused to grant the visa on the basis that the applicant did not satisfy cl.820.211 and cl.820.221 because the delegate was not satisfied that Ms Chiu was the de facto partner of Mr Kenny.

4. Ms Chiu requested review of the delegate’s decision and provided the Tribunal with a copy of the delegate’s decision record.  She appeared before the Tribunal on 28 January 2016 to give evidence and present arguments.  The Tribunal received oral evidence from Mr Kenny and Mr Michael Huseyin Sevincek.            

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The Tribunal has taken into consideration all the evidence in the Department’s file CLF 2013/94542, folios numbered 1-199, and the Tribunal file 1418387, folios numbered 1- 119 and the parties oral evidence provided at the Tribunal hearing.

7. The issue in the present case is whether Ms Chiu, is the de facto partner, of Mr Kenny, as defined in s.5CB of the Act.

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

8. Ms Chiu was born on 27 September 1983 in Hong Kong.  She is a national of China (refer: D1 f32-f33).  Her father, Zang Fong Chiu, mother, Yuk Ling Fung, brother Hon Sun Chiu and sister Lai Yu Chiu reside in Hong Kong.

9. Mr Kenny was born on 18 September 1981.  He is an Australian citizen who was born in Fiji (refer: D1 f34).  His father Vimlesh Kenny resides in Australia.

10. On 5 August 2012, the parties met.  On 27 September 2012, they committed to a shared life together as de facto partners.

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

11. The Tribunal is satisfied that Mr Kenny, at the time of visa application and at the time of decision, is an Australian citizen as evidenced at D1 f34.

    Whether the parties are in a spouse or de facto relationship

12. At the time of application, Class UK contained only one subclass: Subclass 820 (Partner (Temporary)). The criteria for the grant of this visa are set out in Part 820 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.

    Are the parties married?

13. At the time of the visa application and at the time of decision no evidence has been provided that the parties had married.

    Are the parties in a de facto relationship?

14. As the visa applicant and the sponsor are not married to each other under a marriage that is valid for the purposes of the Act, they cannot satisfy an essential requirement of a spouse relationship, but they may meet the criteria on the basis of being a de facto partner as 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).

15. In forming an opinion on 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.

16. 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. 

17. The parties have a joint bank account which they use for rental payments, travel expenses and savings (refer: T1 f59-f61, f172-f221 and f224-f225).  They also have personal accounts and utilise these for purchases of groceries and general expenses (refer: T1 f62-f97).  They agree that each of them takes turns to pay for these items.  Additionally Ms Chiu saves into her account and uses these savings to support her family.  They share all other expenses and have no other financial commitments.  Their general understanding is that their finances are combined.  They reside in shared accommodation arrangements with three other persons.  They have a lease arrangement with the owner of the property which includes utilities in their rental payment and also sees them provide small maintenance to the property (refer: T1 f71-f72 and f168-f171).  Household duties are shared; however the applicant does most of the cooking with the sponsor cooking about twice a week.  They share a love of food and in their spare time seek out new and different dining experiences, which they enjoy together and with friends.  They combine and share all aspects of their lives together and provided incidental documentation to substantiate this. Their families and friends consider them as being de facto partners and Mr Sevincek’s evidence and third party statutory declarations support this (refer: T1 f99-f117, f226-f230 and f241-f250). They have travelled together to Tasmania, Vanuatu, Singapore and Hong Kong, where the sponsor met the applicant’s family (refer: T1 f136-f167). Their five year plan is to travel, save to purchase an investment property and realise their dream to own their own home.  Eventually, they intend to marry and begin a family together.  They are committed to and support each other.

18. In view of all the above, the Tribunal is satisfied that there is broad-based public recognition of the parties’ relationship. The Tribunal is satisfied by the parties’ evidence provided to the Tribunal, that they demonstrate a sound 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 shared life as de facto partners to the exclusion of all others the Tribunal accepts the parties’ evidence presented to the Tribunal.

    FINDINGS

19. The Tribunal has no evidence that the parties are related by family.

20. The Tribunal is satisfied that at the time of application and at the time of decision the sponsor and the applicant had a mutual commitment to a shared life as de facto partners to the exclusion of all others; that their relationship is genuine and continuing and that they do not live separately and apart on a permanent basis.  The applicant therefore meets the requirements of s.5CB(2)(a)-(c).

21. For these reasons, the Tribunal is satisfied that at the time the visa application was made the parties were in a ‘de facto relationship’ within the meaning of s.5CB(2) of the Act. The Tribunal further finds that at the time of decision, they continue to be in a de facto relationship.

22. The Tribunal therefore finds that at the time of the visa application the applicant is the de facto partner of the sponsor, within the meaning of s.5CB of the Act, who is an Australian citizen, and meets the requirements of cl.820.211(2) of Schedule 2 to the Regulations. Therefore, the applicant meets cl.820.211.

23. Further the Tribunal finds that at the time of the Tribunal’s decision the applicant continues to be the de facto partner of the sponsor, and so continues to meet cl.820.211, and therefore meets the requirements of cl.820.221 of Schedule 2 to the Regulations.

    Are the additional criteria for a de-facto relationship met?

24. 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 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).

    Were the parties at least 18 years old at time of application?

25. The Tribunal is satisfied that at time of application the parties were at least 18 years old.

    Are the additional criteria prescribed in r.2.03A met?

26. The requirement in r.2.03A(3), that the applicant has been in the de-facto relationship for at least the period of 12 months ending immediately before the date of application, unless compelling or compassionate circumstances exist for the grant of the visa does not apply if:

    ·the applicant applies on the basis of being in a de-facto relationship with a person who has held a permanent humanitarian visa, and who was in a de-facto relationship with the applicant and informed Immigration of the existence of the relationship before that visa was granted: r.2.03A(4)(a); or

    ·the applicant is a in a de-facto relationship with a person who is an applicant for a permanent humanitarian visa: r.2.03A(4)(b); or

    ·if the visa application was made on or after 9 November 2009, the de-facto relationship is a relationship that is registered under a law prescribed in the Acts Interpretation (Registered Relationships) Regulations 2008 as a kind of relationship prescribed in those Regulations.

27. In the present case the visa application was made on 30 April 2013, which is after 9 November 2009 and the Tribunal has been provided evidence that the de-facto partner relationship between Ms Chiu and Mr Kenny has been registered in December 2014 on the New South Wales Relationships Registry (refer: T1 f55).  Therefore, Ms Chiu is exempted from the requirement of having been in the de-facto relationship for at least 12 months ending immediately before the date of application.

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

29. 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.

30. Therefore, the applicant meets cl.820.211and cl.820.221.

31. 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

32. 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 (Temporary) visa:

    ·cl.820.211 of Schedule 2 to the Regulations; and

    ·cl.820.221 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).