1419953 (Migration)

[2016] AATA 3000

1419953 (Migration) [2016] AATA 3000 (4 January 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Rhiann Williams
Miss Ffion Harris

CASE NUMBER:  1419953

DIBP REFERENCE(S):  CLF2012/102537

MEMBER:John Cipolla

DATE:4 January 2016

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the applications for Partner (Temporary) (Class UK) visas and a Partner (Residence) (Class BS) visa for reconsideration, with the direction that the first named applicant 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.

Statement made on 04 January 2016 at 1:46pm

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 24 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 (the applicant) applied for the visa on 24 May 2012 on the basis of her relationship with her sponsor. 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 applicants were represented in relation to the review by their registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The primary visa applicant (hereinafter referred to as the applicant) applied for a Subclass 820 Partner visa on 24 May 2012. A delegate of the Department of Immigration refused the visa application in a decision made on 24 November 2014. Recourse to the delegate’s decision record indicates that the delegate was not satisfied that the applicant and the sponsor were in a de facto relationship for 12 months prior to the date of application, namely the period from May 2011 to May 2012. The delegate notes that the legislation pertaining to the 12 month de facto requirement may be waived if the applicant can establish compelling reasons for the waiver of the 12 month de facto relationship requirement. Evidence on the Departmental file indicates that there were at least 2 requests for the provision of such information with no response forthcoming and thus the delegate could not be satisfied that compelling reasons existed to waive the 12 month de facto relationship requirement.

6. The Tribunal has had regard to the substantial evidence provided to the Department of Immigration with the lodgement of the visa application. The Departmental file includes a substantial submission from the applicant's representative around the 12 month de facto relationship requirement. The submission notes that the 12 month relationship requirement prior to the lodgement of the visa application is able to be satisfied on the basis that the applicant and the sponsor decided to make a permanent commitment to the relationship in January 2011. This was evidenced by the sponsor travelling to United Kingdom in June 2011. The submission also notes that if the delegate was not satisfied of the existence of a relationship 12 months prior to the application that there were compelling and compassionate circumstances to waive the 12 month de facto relationship requirement. The submission notes that the applicant has a dependent daughter who was currently being raised by the applicant and the sponsor in Townsville Queensland and makes reference to a number of Migration Review Tribunal decisions pertaining to compassionate and compelling circumstances to waive the 12 month de facto relationship requirement. The submission also notes that the couple entered into a marital relationship on 18 November 2014 and a copy of the marriage certificate was also provided with the submission.

7. Relationship statements have been provided from the sponsor and the applicant documenting the inception and development of the relationship. The evidence on the Departmental file indicates that the applicant was a resident of the United Kingdom prior to relocating to Australia with her daughter to take up residence with the sponsor in Townsville. A submission from the applicant indicates that in June 2011 the sponsor came to the United Kingdom to further progress the relationship and that the applicant and her daughter travelled to Australia in March 2012 returning briefly to England to tie up their affairs before returning to Australia to reside with the sponsor in April 2012. The submission notes that the sponsor met the applicant's family in June 2011 in the United Kingdom and that the applicant had met the sponsor's family members in Australia.

   FINDINGS AND REASONS

8. 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.

9. The evidence before the Tribunal indicates that the applicant and the sponsor were married in Australia on 18 November 2014.  The Tribunal finds that at the time of application for the visa the Tribunal needs to determine whether the applicant and the sponsor were in a de-facto relationship that had been in existence during the 12 months prior the lodgement of the visa application on 24 May 2012 or that there are compelling reasons for the waiver of the 12 month de facto relationship requirement.  The evidence indicates that at the time of this decision, the applicant and sponsor were now married to each other under a marriage that is recognised as valid for the purposes of the Act.

10. In Nassouh v Minister for Immigration and Multicultural Affairs [2000] FCA 788 the Federal Court held that sub-regulation 1.15A(3) set out mandatory considerations. While the decision in Nassouh relates to the pre-July 2009 version of r.1.15A(3), the Tribunal considers the reasoning is applicable to r.1.09A(3). Accordingly, the Tribunal, in forming an opinion whether a married relationship or de facto relationship exists must take into account the considerations set out in sub-regulation 1.09A(3). These considerations relate to all of the circumstances of the relationship including, in particular, 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. The Tribunal also notes the decision of Bretag v Immigration Review Tribunal [1991] FCA 755 in which O’Loughlin J quoted from Minister for Immigration and Ethnic Affairs v Pochi (1980) 4 ALD 139 [at 160], and indicated that the Tribunal may have regard to the subsequent history of a relationship for the purpose of testing or determining whether the relationship was genuine at the time of application, so long as it “tends logically to show the existence or non-existence of facts relevant to the issue to be determined.”

    The financial aspects of the relationship

11. The applicant and the sponsor have purchased joint real estate in the United Kingdom in June 2013 they also have real estate interests in Townsville Australia. The applicant and sponsor have provided copies of bank statements from the ANZ showing the applicant and the sponsor have pooled their financial affairs.  The evidence indicates that the couple own and breed champion dogs.  The evidence indicates that the applicant and the sponsor are financially independent and that since the relocation of the applicant and her daughter to Australia the couple have shared household expenses.

    The nature of the household

12. The Tribunal accepts that applicant, her sponsor and their daughter Ffion live with the sponsor in Alice River a suburb of Townsville.  The evidence before the Tribunal indicates that the applicant and the sponsor share household duties such as cooking and cleaning and they share responsibility for their mutual interest in breeding and showing dogs.

    The social aspects of the relationship

13. The Tribunal finds that the couple are recognised as being a couple by their friends and family.  A large number of attestations to this effect have been provided to the Department and have been duly considered by the Tribunal at review.   The Tribunal finds that the applicant and the sponsor held themselves to be in a de-facto relationship to members of their family and are now party to a marital relationship widely recognised by family and friends.

    The nature of the persons' commitment to each other

14. The Tribunal accepts the evidence by members of the sponsor and the applicant’s families that the couple are committed to one another, the applicant’s daughter and to their love of showing and breeding champion Dachshunds.

15. The Tribunal finds that the applicant and her sponsor have known each other since March 2008 and that the couple derive companionship and emotional support from one other and they see their relationship as a long term one.  

    Other relevant considerations

16. On the basis of the evidence before it, the Tribunal is satisfied that at the time of application for the visa 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 met the requirements of s.5CB(2)(a) and (b) for a de facto relationship at time of application and the requirements for a spousal relationship at time of decision given their marriage of 18 November 2014.

17. Additionally, the Tribunal is satisfied that the applicant and sponsor live together or not separately and apart on a permanent basis and are not related by family as that terms is defined in s.5CB(4) of the Act. Accordingly, they meet the requirements of s.5CB(2)(c), (d) for a de facto relationship.

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

19. 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 the applicant meets cl.820.211(1).

20. The Tribunal further finds that at the time of the Tribunal’s decision the applicant continues to be the sponsor’s partner, now wife, thus satisfying cl.820.221.

21. Subregulation 2.03A(3) provides that subject to subregulations 2.03A(4) and 2.03A(5) which the Tribunal finds are not applicable in the circumstances of the present case, an applicant seeking a visa of the kind which the applicant has applied for must satisfy the Minister, or the Tribunal upon review, 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 establishes compelling and compassionate circumstances for the grant of the visa.

22. The Tribunal is satisfied that at the time of application for the visa and at the time of this decision, the parties satisfy the requirements of s.5CB(2)(d) and r.2.03A(2) for a de facto relationship which requires that the applicant and the sponsor, 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.

23. 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.

24. The Tribunal has considered all the evidence before it and is satisfied that the applicant and sponsor were in a de facto relationship at the time of application.  The Tribunal is satisfied that at the time of application they had a mutual commitment to a shared life to the exclusion of all others, that the relationship was genuine and continuing and that the couple had lived together in the United Kingdom and in Australia from June 2011.

25. The delegate’s decision did not question the genuineness of the relationship but the delegate was not satisfied that they had been in a de facto relationship for 12 months immediately prior to the date of application.  The Tribunal also notes that the applicant’s representative did not respond to Departmental requests sent prior to making the decision.  The Tribunal has reviewed all of the evidence provided to the Department with the application and additional evidence provided at review.

26. The Tribunal is satisfied that there is sufficient evidence to support a finding that they have had joint living arrangements since June 2011 when the couple cohabited for a period in the United Kingdom and in Australia in March 2012 and on an ongoing basis since June 2012.  The Tribunal accepts that they were accepted as a de facto couple by relatives and friends both in Australia and the United Kingdom and are now recognised by their respective relatives as being husband and wife.  The Tribunal is satisfied that the couple are genuinely committed to one another.  The Tribunal has received sufficient evidence attesting to the genuineness of the relationship and is satisfied that they share the same hopes and plans for the future which is strongly entrenched through their love of dogs and dog breeding. 

27. The evidence and findings set out in the preceding paragraphs and the documentary material satisfy the Tribunal that at the time of application, and at the time of review the couple have a mutual commitment to a shared life to the exclusion of all others and the relationship between them is genuine and continuing.

28. On the basis of the evidence before it, the Tribunal is satisfied that at the time of application for the visa and at the time of this 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. Additionally, the Tribunal is 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.

29. The Tribunal finds on the evidence before it that the applicant was sponsored at the time of application by the person identified as his de facto partner, and that the applicant was the de facto partner of that person. The Tribunal is satisfied on the evidence before it that the sponsor is an Australian citizen. 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). 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).

30. 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 the applicant meets cl.820.211(1).

31. The Tribunal further finds that at the time of the Tribunal’s decision the applicant is be the sponsor’s wife, thus satisfying cl.820.221(1).

32. For the reasons given above, the Tribunal is satisfied that at the time of application the applicant was the sponsor’s de facto partner. Accordingly, the applicant satisfies cl.820.211(2).

33. For the reasons given above, the Tribunal is satisfied that at the time of decision the applicant is the sponsor’s wife. Accordingly, the applicant satisfies cl.820.221(1)(a).

    CONCLUSIONS

34. For the reasons given above, the Tribunal finds that the applicant satisfies the requirements of cl.820.211 and cl.820.221 of Schedule 2 to the Regulations and r.2.03A(3) of the Regulations.

35. The Tribunal will return the visa application to the Department for reconsideration. If the applicant meets the remaining criteria, the applicant will be entitled to the grant of a Subclass 820 visa.

    DECISION

36. The Tribunal remits the applications for Partner (Temporary) (Class UK) visas and a Partner (Residence) (Class BS) visa for reconsideration, with the direction that the first named applicant 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.

    John Cipolla
    Senior 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).