1419626 (Migration)

[2016] AATA 3474

1419626 (Migration) [2016] AATA 3474 (25 February 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Yuko Wakabayashi
Mr Fuaizan Wakabayashi

CASE NUMBER:  1419626

DIBP REFERENCE(S):  BCC 2013/2070801

MEMBER:Mary Urquhart

DATE:25 February 2016

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Partner (Temporary) (Class UK) visa for reconsideration, with the direction that the applicants meet the following criteria for a Subclass 820 (Partner) visa:

·cl.820.211 of Schedule 2 to the Regulations

·cl.820.221(1) of Schedule 2 to the Regulations

·r.2.03A(2) of the Regulations; and

·r.2.03A (3) of the Regulations.

Statement made on 25 February 2016 at 4:07pm

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 17 November 2014 to refuse to grant the applicants Partner (Temporary) (Class UK) visas under s.65 of the Migration Act 1958 (the Act).

2. The first named applicant Ms Yuko Wakabayashi (the applicant) applied for the visa on 12 December 2013 on the basis of her relationship with her sponsor, Mr Kyle Daniel Doody. At that time, 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.

3. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.820.211because the delegate considered there was insufficient evidence to demonstrate a genuine and continuing de facto relationship.

4. The applicant appeared before the Tribunal on 25 February 2016 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Kyle Doody, and Ms Lucianne Midiri.  

5. The applicants were represented in relation to the review by their registered migration agent.

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 the present case is whether the applicant, Ms Wakabayashi is the de facto partner of Mr Doody at the time of the visa application and time of decision; and if so whether 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 (12 December 2013); and if not whether she can establish compelling and compassionate circumstances for the grant of the visa.

8. For the reasons that follow the tribunal finds that Ms Wakabayashi and Mr Doody are in a de facto relationship and have been so since at least 12 months before the visa application.

   RELEVANT LAW

9. There is a two stage process for partner visas. The visa applicant must hold a provisional visa, a Partner (Temporary) (Class UK) visa, in order to be granted a permanent visa, a Partner (Residence) (Class BS) visa. The grant of the provisional visa enables a visa applicant to remain in Australia on a temporary basis. The temporary visa can be replaced by the grant of a permanent visa in a range of circumstances, normally once at least two years has passed since the application was made, and the decision-maker is satisfied that the relationship is continuing.

10. The Partner (Temporary) (Class UK) visa class contains one visa subclass, Subclass 820 (Partner). The criteria for a Subclass 820 visa are set out in Part 820 of Schedule 2 to the Regulations. The primary criteria to be satisfied at the time of application are that the applicant is not the holder of a Subclass 771 (Transit) visa and that he or she meets one of the alternative requirements set out in cl.820.211(2), (3), (4), (5), (6), (7), (8), or (9): cl.820.211(1) of Schedule 2 to the Regulations.

11. In the present case, only cl.820.211 (2) is relevant to the applicant's claimed circumstances. Clause 820.211(2) requires that at the time of application the visa applicant be the spouse or de facto partner of an Australian citizen, Australian permanent resident or eligible New Zealand citizen who is not prohibited by cl.820.211 (2B) from being a sponsoring partner. The visa applicant must be sponsored by the spouse or de facto partner, or where the spouse has not turned 18, by a relevant parent or guardian.

12. The primary criteria to be satisfied at the time of decision are that the visa applicant continues to meet the requirements of cl.820.211(2), (3), (4), (5), (6), (7), (8) or (9) except where the sponsoring partner has died, or the relationship has ceased and either relevant family violence has occurred or where the visa applicant and sponsor have legal obligations to a child: cl.820.221(1) of Schedule 2 to the Regulations.

13. The principal issue in the present case is whether the applicant is the de facto partner of the sponsor at the relevant time.

14. Section 5CB of the Act provides that a person is a de facto partner and is in a de facto relationship with another person (whether of the same sex or different sex) where those two people are not in a married relationship but 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 whether two persons are in a de facto relationship, in relation to an application for a Partner (Temporary) (Class UK) visa, the Tribunal must have regard to all the circumstances of the relationship, including in particular the considerations set out in r.1.15A(3) for spousal relationships and r.1.09A(3) for de facto relationships. These considerations relate to the financial aspects of the relationship, the nature of the household, the social aspects of the relationship and the nature of the persons' commitment to each other.

16. In addition to the criteria set out in Schedule 2 to the Regulations, if a person claims to be in a de facto relationship for the purposes of a visa application the tribunal must be satisfied that the applicant and the person with whom the applicant claims to be in a de facto relationship are both at least 18 years of age: r.2.03A (2). Subject to some exceptions specified in r.2.03A (4) and (5), the Tribunal must also be satisfied for visas of this kind 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 the applicant can establish compelling and compassionate circumstances for the grant of the visa: r.2.03A (3).

    CLAIMS AND EVIDENCE

17. Prior to the hearing the Tribunal received additional information including documentary evidence in correspondence to the Tribunal from Ms Lorraine Czernieicz (old landlord) and Mr Sergei Eichman (former neighbour) that the applicant and sponsor had commenced their relationship in 2012. As well further financial documentation, photographs and telephone records were provided and a supplementary Form 888 from Mr John Milne Keddie.  

18. In her evidence Ms Wakabayashi told the Tribunal she was born in japan and had travelled to Australia a number of times on a variety of visas. Her first visit being to Sydney with a school girl group for 5 days. She came most recently in 2008. She said she had never been married nor partnered in any other de facto relationship. She explained that her son, the secondary applicant Fuaizan Wakabayishi was born on 10 June 2006 from a casual relationship she engaged in. She said his biological father lives in Japan, acknowledges Fuaizan as his son but does not provide for him.

19. The applicant met the sponsor in September 2010 at her place of work. She was a chef and he an executive chef who was opening a new business with the owner of the restaurant she worked at. They met again during the planning stages and went to work at the new restaurant with Mr Doody. She gave detailed evidence of the development of the relationship, from a friendship to a serious relationship.

20. During the period from October 2012 when they had commenced a spousal relationship they maintained separate addresses. The applicant and sponsor gave credible reasons for this which focused on Fuaizan’s child care and school needs, the hours they kept and the privacy they cherished particularly as they wished to keep their private life out of their work life for professional reasons. However the applicant indicated that she spent much time with Mr Doody including frequent overnight stays.  Eventually they moved in together at Mr Dowdy’s inner city apartment where they shared the same bedroom, and made a bedroom for Fuaizan. They had commenced to share financial arrangements before moving in together. 

21. Mr Doody gave evidence. His account corresponded credibly with the applicant’s evidence.

22. Ms Midiri gave evidence regarding her observations of the family in the period of time they lived at West Melbourne in 2013-2014.

23. The parties both gave evidence of moving back to Caulfield South where they currently reside. They gave evidence that they share a bedroom, share financial arrangements, take breaks together, go camping, enjoy outdoor activities and are involved in community life. Mr Doody is the assistant cricket coach for Fuaizan’s cricket team.\

    FINDINGS AND REASONS

24. As noted above, the issue in the present case is whether the applicant is the spouse or de facto partner of the sponsor within the meaning of s.5F and s.5CB of the Act.

25. On the evidence before it the Tribunal is satisfied that at the time of the visa application and time of decision, the parties satisfy the requirements of s.5CB (2) (d) and r.2.03A (2) for a de facto relationship which requires that Ms Wakabayashi and Mr Doody, are not married to each other under a marriage that is recognised as valid for the purposes of the Act, are not related by family, and were of full age at the time of the visa application.

26. In forming an opinion whether the parties have a mutual commitment to a shared life to the exclusion of all others, whether their relationship is genuine and continuing, whether they are not related by family, and whether they live together or do not live separately and apart on a permanent basis, the Tribunal has had regard to all of the circumstances of the relationship. This includes evidence of the financial and social aspects of the relationship, the nature of the household and the parties’ commitment to each other.

    General comments

27. As noted above there are essentially three points of time to consider when assessing a de facto relationship: (1) the date of decision, which in this case is now the date of the tribunal's decision25 February 2016; (2) the date of the visa application, in this case 12 December 2013; and (3) the 12 month period preceding the visa application, in this case December 2012 to December 2013. 

28. By way of general observation, the Tribunal records that it found both parties to be highly credible and accepts their evidence about their relationship at face value. 

29. Accordingly, the Tribunal has no doubts whatsoever that Ms Wakabayashi and Mr Doody are at the time of decision in a de facto relationship.  They live together in Caulfield South, , they share the same bedroom, their financial affairs are pooled, they socialise together, their friends and family see them as a couple, and most importantly they palpably have a strong emotional commitment to each other and both see the relationship as being long term.  Furthermore the relationship is mutually exclusive and they do not live separately and apart.

30. However, the Tribunal has as required, also carefully considered the situation at the time of the visa application and the 12 months preceding the application, given that they maintained separate addresses until October 2012.

    Financial aspects of the relationship

31. The delegate  was not satisfied that the applicant and sponsor provided any evidence regarding the financial aspects of their relationship, including evidence of any previous or ongoing pooling of financial resources or sharing of day-to-day household expenses. However, on the basis of oral and documentary evidence now before it the Tribunal is satisfied that the parties have been pooling their financial resources and savings for many years.

32. The evidence is that this commenced before cohabitation due to the sponsor asserting responsibility for the financial needs of the applicant and her son. The financial integration started slowly but developed to a high degree with the sponsor taking on expenses for the applicant’s school needs and recreation needs. The parties name each other as superannuation beneficiaries.

33. The parties jointly purchased a boat and each have a marine licence to drive it. Together they are paying a car loan.

34. The Tribunal is satisfied that the financial arrangements between the applicant and sponsor indicate they have in the past integrated their finances and currently share ongoing financial responsibilities.

    The nature of the household

35. As set out in the evidence above, the parties maintained separate addresses until October 2012.  The Tribunal accepts that the reason for this in part was to accommodate the needs of the applicant’s young son. On the basis of the evidence the Tribunal accepts that prior to this the sponsor would stay over at the applicant’s and vice versa with Fuaizan. In mid-2013 the applicant moved in with the sponsor at his apartment in West Melbourne where the evidence is they worked together to maintain the household and share daily household duties including the care of Fuaizan.

36. The Tribunal notes that cohabitation is not necessarily a requirement for a de facto relationship.  For example it is certainly possible for a couple, for all sorts of reasons, to live in separate cities or countries but at the same time maintain a genuine relationship.  When both parties live and work in the same city it would be more unusual for two people to be considered a de facto partners if they don't live together.  However, notwithstanding this, the Tribunal accepts that in the circumstances of this application for all intents and purposes Ms Wakabayashi and Mr Doody spent most nights together, be it at her home for 3-4 nights and his home for 3-4 nights depending on what was happening in Fuaizan’s life and in their work commitments.  Thus regardless of have separate addresses, the Tribunal  accepts that  in realty the applicant and sponsor spent most of their time together from at mid-2012.  In so finding the Tribunal relies on the oral evidence of the parties, the correspondence of Ms Lorraine Czernieicz, Mr Sergei Eichman and the Form 888 of John Keddie.

37. The parties now live in family style premises in Caulfield. They made this move in 2015. The Tribunal accepts that the applicant’s son is an important part of the household. The Tribunal accepts the evidence that both the applicant and sponsor play important roles in his life and have organised their living and lives to assist him to have a stable life surrounded by friends he can grow up with and where they can best give him encouragement to achieve in areas such as cricket, tennis and fishing sports.

38. The applicant’s mother is deceased and she is from a small family; her two siblings reside in Japan and her evidence is that they are in frequent telephone contact. The sponsor’s parents separated and he is for this reason he is not close to them; he was raised by his grandmother who is a significant person in the lives of the applicant and sponsor. Though she resides in New Zealand and is elderly the Tribunal accepts that she has taken on the role of grandmother to Kuaizan. The Tribunal accepts the families of applicant and sponsor are aware of their relationship and consider it to be long term. The Tribunal notes the delegate considered social interactions, the way the parties represented he relationship to others, and the level of recognition of the relationship by friends and family as a reasonable test of the genuineness of a relationship.

39. The Tribunal takes into account Form 888 Statutory Declarations from Brett Nathan Louis, Matthew Wood, Melanie Rockman, Paula Woolcock and John Keddie.

40. The Tribunal is satisfied that there is social recognition of the parties’ de facto relationship.

    The nature of the persons' commitment to each other

41. The Tribunal accepts the history of the relationship as set out by the parties.  They met in September 2010. They worked together as Chef and Executive Chef at a successful city restaurant from January 2011 to December 2011. By mid-2012 they both considered the relationship to be serious and were sleeping over at each other’s homes.  The Tribunal finds that certainly from 2012 the parties provided each other with a high level of companionship and emotional support.  The Tribunal accepts that from 2012 both parties saw the relationship is being long term.

42. On the basis of the evidence before it, the Tribunal is satisfied that at the time of application and time of decision the applicant and sponsor had a mutual commitment to a shared life to the exclusion of all others, and that the relationship is genuine and continuing. They therefore meet the requirements of s.5CB (2) (a) and (b) for a de facto relationship. 

43. The Tribunal is also satisfied that the applicant and sponsor live together or not separately and apart on a permanent basis and are not related by family. Accordingly, they meet the requirements of s.5CB (2) (c), (d) for a de facto relationship.

44. The Tribunal finds on the evidence before it that the applicant was sponsored at the time of application by the person identified as their de facto partner, and that the applicant was the de facto partner of that person.

45. The Tribunal is satisfied on the evidence before it that the sponsor is an Australian citizen. 

46. There is no evidence before the Tribunal to suggest that the sponsor is prohibited under cl.820.211 (2B) from sponsoring the applicant. Accordingly the Tribunal is satisfied that the applicant meets criteria 820.211(2) (a) and (c).

47. As the applicant was the holder of a substantive visa at the time of application, cl.820.211 (2) (d) has no application. The Tribunal finds therefore that the applicant satisfied cl.820.211 (2).

48. Having met the criteria in cl.820.211 (2), and as the applicant was not the holder of a Subclass 771 (Transit) visa at the time of application, the tribunal finds that she meets cl.820.211(1).

49. The Tribunal finds that at the time of the Tribunal’s decision the applicant continues to be her sponsor’s de facto partner, thus satisfying cl.820.221(1).

50. Furthermore, for the reasons set out above the Tribunal finds that the relationship existed for at least 12 months prior to the date of the visa application.

51. As the applicant satisfies the relevant criteria for a Partner (Temporary) (Class UK) visa the Tribunal finds that the secondary applicant also meets the criteria for the grant of the  visa.

52. 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

53. The Tribunal remits the application for a Partner (Temporary) (Class UK) visa for reconsideration, with the direction that the applicants meets the following criteria for a Subclass 820 (Partner) visa:

    · cl.820.211 of Schedule 2 to the Regulations

    · cl.820.221(1) of Schedule 2 to the Regulations

    ·     r.2.03A(2) of the Regulations; and

    ·     r.2.03A (3) of the Regulations.

    Mary Urquhart
    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 sub regulation (3).

    (3)The matters for sub regulation (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 sub regulation (2), the Minister may consider any of the circumstances mentioned in sub regulation (3).