1504246 (Migration)

[2016] AATA 3710

1504246 (Migration) [2016] AATA 3710 (7 April 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Audrey Marie Angelich

CASE NUMBER:  1504246

DIBP REFERENCE(S):  BCC2014/814875

MEMBER:Kira Raif

DATE:7 April 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(2)(a) of Schedule 2 to the Regulations

·820.221 of Schedule 2 to the Regulations

·r.2.03A

Statement made on 07 April 2016 at 10:11am

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 16 March 2015 to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant is a national of the US, born in June 1990. She applied for the visa on 23 March 2014 on the basis of her relationship with her sponsor. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.820.211 because the delegate was not satisfied the applicant and the sponsor were in a relationship for 12 months prior to the application being made and found there were no compelling and compassionate circumstances for the grant of the visa. The applicant seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal on 7 April 2016 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor and their pastor. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   Relevant law

4. At the time the application was made, 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).

5. Clause 820.211 and 820.221 require that at the time the visa application was made, and at the time of this decision, the 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 applicant claims to be the de facto partner of the sponsor who is an Australian citizen.

6. ‘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).

7. 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).

   Are the parties in a de facto relationship?

8. There is documentary evidence before the Tribunal concerning various aspects of the relationship. The couple provided evidence of having a joint bank account, although they indicate it is not used much because they each operated individual accounts where their salaries were deposited and the joint account was only to be used for saving. Their evidence is that from 2012 or 2013 they shared their resources for various expenses and the Tribunal accepts that evidence. There is little evidence that the party have joint ownership of assets or joint liabilities.

9. The parties’ evidence to the Tribunal is that they commenced cohabitation after marriage in 2014 and they provided a copy of their lease agreement. The Tribunal accepts that the couple has lived together from the time of the marriage and that they did not live together prior to the marriage due to their religious beliefs. The Tribunal accepts that they share housework and have established a joint household. The Tribunal is satisfied that in the circumstances of this case, the fact that the couple did not live together at the time the application was made is not an indication that their relationship was not committed. The Tribunal is mindful of the reasoning of the Full Federal Court in SZOXP v Minister for Immigration and Border Protection [2015] FCAFC 69 confirming that s 5CB of the Migration Act does not require that the parties physically reside in the same premises prior to the application.

10. There are statements from third parties and photographic evidence showing that the couple socialised together. In oral evidence they spoke about their strong Christian beliefs and various activities they engage in within the church. The Tribunal acknowledges the oral evidence of their pastor and the sponsor’s mentor who confirmed the committed relationship existed from about late 2012. The Tribunal is satisfied the relationship is recognised and supported by family members. The Tribunal is satisfied that the couple represented themselves to others as being in a committed relationship and that they plan and undertake joint social activities.

11. The Tribunal is also satisfied that the parties are committed to this relationship. The couple have been married for about one and a half years and commenced a de facto relationship prior to that date. The Tribunal is satisfied they provide companionship and emotional support to each other. The Tribunal is satisfied they view the relationship as a long term one.

12. The parties are not related by family. The Tribunal is satisfied (as was the delegate) that at the time the application was made and at the time of this decision the applicant and the sponsor had a mutual commitment to a shared life to the exclusion of all others, that their relationship is genuine and continuing and that at the time of the application they did not live separately and apart on a permanent basis while at the time of this decision, they live together. 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.

    Are the additional criteria for a de facto relationship met?

13. 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).

14. The applicant does not claim to be in de facto relationship with a person who is, or was, a holder of a permanent humanitarian visa or of a person who is an applicant for a permanent humanitarian visa. The Tribunal finds that r. 2.03A(4) does not apply. There is also no evidence that the applicant’s de facto relationship with the sponsor has been registered under a law of a State or Territory. The Tribunal is mindful that at the time of this decision the parties have married but that is distinct from the registration contemplated by r. 2.03A(5). The Tribunal finds that the applicant does not meet that provision. The Tribunal finds that subregulation 2.03A(3) applies in this case.

15. Both partners were over the age of 18 at the time the application was made. The main issue before the Tribunal is whether the relationship existed for at least 12 months before the date of the application. Having regard to the parties’ oral evidence, the Tribunal is satisfied that it did.

16. The Tribunal found the parties’ oral evidence to be credible and convincing. In oral evidence to the Tribunal the applicant said she and the sponsor met in June 2012. They communicated online and when she travelled to the US, their relationship was developing. The applicant said she introduced the sponsor to her friend and she and the sponsor spoke early on about their expectations from a relationship. She said she was only looking for a serious relationship and would not have pursued a relationship unless she knew it would lead to a committed marital relationship. The applicant said in August 2012 they ‘officially’ started a serious relationship with the intention of marriage because they were not intending to have a relationship outside of marriage. The applicant said, in relation to the February 2014 date on the application form, that this was the date they formally engaged but the commitment to a relationship was made before that. The applicant said she and the sponsor discussed travelling to the US in 2013 so he could meet her family and discuss marriage. The applicant said they flew to the US in December 2013 and her father agreed to the marriage and the formal proposal was in February 2014. The applicant said that throughout 2013 they knew they would marry and planned their life together. The applicant confirmed they married in September 2014 and said they did not register earlier because she wanted the sponsor to meet her parents first and due to study and other commitments, she could not travel to the US earlier. The same evidence was given to the Tribunal by the sponsor. The Tribunal accepts that evidence.

17. The Tribunal accepts that since their initial meeting around August 2012, the couple had discussed having a ‘serious’ relationship and a marriage and that their relationship developed on the basis that it would lead to marriage. The Tribunal accepts that throughout 2013 the couple developed all the indicia of a committed relationship, other than cohabitation, and that they delayed marriage only to enable the sponsor to meet the applicant’s parents in the US. The Tribunal accepts that throughout that period the applicant and the sponsor were in a genuine de facto relationship and that the only reason they did not establish cohabitation prior to marriage was due to their religious beliefs.  The Tribunal gives significant weight to the couple’s evidence that due to their religious beliefs, they were not interested in a relationship other than a committed relationship, so that from the time they started ‘dating’, there was an intention to have a long term, exclusive and committed relationship.

18. Overall, the Tribunal is satisfied the couple commenced the de facto relationship in late 2012 and such a relationship existed for at least 12 months ending before the day on which the application was made. For these reasons the Tribunal is satisfied that the applicant meets the additional criteria prescribed in r.2.03A.

    Conclusion

19. 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

20. 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(2)(a) of Schedule 2 to the Regulations

    ·cl.820.221 of Schedule 2 to the Regulations.

    ·r.2.03A

    Kira Raif
    Senior Member