1420041 (Migration)

[2015] AATA 3817

1420041 (Migration) [2015] AATA 3817 (1 December 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr David Anthony Atherton

CASE NUMBER:  1420041

DIBP REFERENCE(S):  CLF2013/204661

MEMBER:Helena Claringbold

DATE:1 December 2015

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; and

·cl.820.221 of Schedule 2 to the Regulations; and

·r.2.03A

Statement made on 01 December 2015 at 2:29pm

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 28 November 2014 to refuse to grant Mr David Anthony Atherton, the applicant, a Partner (Temporary) (Class UK) visa under s.65 of the Migration Act 1958 (the Act).

2. Mr Atherton applied for the visa on 123 August 2013 on the basis of his relationship with Ms Ivana, his sponsor.   Ms Ivana is an Australian citizen (refer: T1 f107).

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 Mr Atherton was the de facto partner of Ms Ivana.

4. Mr Atherton requested review of the delegate’s decision. The Tribunal has been provided copious additional information supporting the parties’ de facto relationship.  On the basis of the additional information submitted (and previously unavailable to the delegate) and as this decision is favourable for the applicant the Tribunal will decide the matter on the papers.

   STATEMENT OF DECISION AND REASONS          

5. The Tribunal has taken into consideration all the evidence in the Department’s file            CLF 2013/204661, folios numbered 1-92, and the Tribunal file 1420041, folios numbered    1- 409.

6. The issue in the present case is whether Mr Atherton, is the de facto partner, of Ms Ivana, as defined in s.5CB of the Act.

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

7. The parties met in July 2011, in Indonesia. At that time Mr Atherton was employed as a teacher, on a one year contract.  Ms Ivana visited the school to enquire about an IELTS exam and the parties met. They began their de facto relationship on 15 August 2011. Ms Ivana returned to Australia and in December 2011, Mr Atherton travelled to Sydney to be with Ms Ivana.  He departed Australia in April 2012 and worked under contract for the British Council in Vietnam.  During this time the parties were in contact and Ms Ivana travelled to Vietnam and lived with Mr Atherton from July to September 2012.   Mr Atherton returned to Australia on 20 May 2013 and the parties resumed cohabitation and have lived together since that time.

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

8. The Tribunal is satisfied that Ms Ivana, at the time of visa application and at the time of this decision, is an Australian citizen (refer: T1 f107).

   Whether the parties are in a spouse or de facto relationship

9. 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?

10. 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?

11. As the 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).

12. 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 parties’ household and their commitment to each other as set out in r.1.09A(3) which is attached to this decision.

13. 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.  The Tribunal has been provided copious documentation.  The parties have a joint bank account which they opened in May 2013.  They also have individual bank accounts.   They share their household expenses by taking responsibility for individual financial commitments. They are cross beneficiaries on their superannuation funds. The parties share all other expenses and have no other financial commitments.  They have provided various documents including utility accounts, copies of email exchanges for times they were apart and travel itineraries including records of Ms Ivana travelling to be with Mr Atherton in November 2011.   The sponsor supported the applicant through times of unemployment and financial stress.  They have provided continuous bond and lease documents for their accommodation at three different addresses at Paddington, Potts Point and Randwick from June 2013 to the present time.   They share their household duties and have shared interests including reading, visiting art galleries and libraries, cooking and travelling.  Their families and friends have knowledge of the parties’ de facto relationship and this is supported through witness statements provided to the Tribunal (refer: T1 f62-f88).  They attend social events and family gatherings.  Mr Atherton is employed fulltime at a university in Sydney and Ms Ivana is working to become a registered nurse.  They are committed to each other and continue to plan for their future including the purchase of a home. 

14. 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 to the Tribunal.

    FINDINGS

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

16. 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).

17. 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.

18. 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.

19. Furthermore 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?

20. 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).

21. The parties’ evidence is that they commenced their de facto relationship on 15 August 2011, continued to cohabitate in Australia and Vietnam and commenced living together as de facto partners on in May 2013 and the visa application was made on 23 August 2013. Therefore, on the evidence, the de facto relationship existed for more than 12 months prior to the application.  Additionally, the parties registered their relationship in New South Wales on 2 July 2013.  At the time the visa application was made both parties were over the age of 18.  Therefore, the applicant meets the criteria of r.2.03A.

22. For these reasons, the Tribunal is satisfied that the applicant meets the additional criteria prescribed in r.2.03A(3).

23. 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.

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

25. 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

26. 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).