1506252 (Migration)

[2016] AATA 3227

1506252 (Migration) [2016] AATA 3227 (5 February 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ting Fung Mathew Tse

CASE NUMBER:  1506252

DIBP REFERENCE(S):  CLF2015/13717

MEMBER:R. C. Titterton

DATE:5 February 2016

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Student (Temporary) (Class TU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 573 Higher Education Sector visa:

·cl. 573.314(3) of Schedule 2 to the Regulations.

Statement made on 05 February 2016 at 11:40am

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 17 April 2015 to refuse to grant the visa applicant a Student (Temporary) (Class TU) Subclass 573 visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 9 March 2015. The delegate refused to grant the visa on the basis that the applicant did not satisfy Regulation 573.314.

3. The applicant appeared before the Tribunal on 22 September 2015 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Jessica Li. The Tribunal hearing was conducted with the assistance of an interpreter in the Chinese and English languages.

4. The applicant was represented in relation to the review by his registered migration agent.

5. For the following reasons, the Tribunal has concluded that the under review should be set aside.

RELEVANT LEGISLATION

1. There are a number of relevant provisions of the Act and the Regulations.

2. First, "member of the family unit " and "member of the same family unit" is defined in s 5 of the Act as:

   "member of the family unit" of a person has the meaning given by the regulations made for the purposes of this definition.

   "member of the same family unit”: one person is a member of the same family unit as another if either is a member of the family unit of the other or each is a member of the family unit of a third person.

3. Secondly, reg 1.12 relevantly defines “member of the family unit as:

   (2A)  A person is a member of the family unit of a holder of a Student (Temporary) (Class TU) visa if the person is:

   (a)  a spouse or de facto partner of the holder; or

   (b)  a dependent child of the holder, or of that spouse or de facto partner, who is unmarried and has not turned 18.

4. Thirdly, “de facto partner” is defined in s 5CB of the Act as:

   De facto partners

   (1)  For the purposes of this Act, a person is the  de facto partner of another person (whether of the same sex or a different sex) if, under subsection (2), the person is in a de facto relationship with the other person.

   De facto relationship

   (2)  For the purposes of subsection (1), a person is in a  de facto relationship with another person if they are not in a married relationship (for the purposes of section 5F) with each other but:

   (a)  they have a mutual commitment to a shared life to the exclusion of all others; and

   (b)  the relationship between them is genuine and continuing; and

   (c)  they:

   (i)  live together; or

   (ii)  do not live separately and apart on a permanent basis; and

   (d)  they are not related by family (see subsection (4)).

   (3)  The regulations may make provision in relation to the determination of whether one or more of the conditions in paragraphs (2)(a), (b), (c) and (d) exist. The regulations may make different provision in relation to the determination for different purposes whether one or more of those conditions exist.

5. Fourthly, reg 2.03A of the Regulations which provides:

   Criteria applicable to de facto partners

   (1)  In addition to the criteria prescribed by regulations 2.03 and 2.03AA, if a person claims to be in a de facto relationship for the purposes of a visa application, the criteria in subregulations (2) and (3) are prescribed.

   (2)  If a person mentioned in subregulation (1) applies for a visa:

   (a)  the applicant is at least 18; and

   (b)  the person with whom the applicant claims to be in a de facto relationship is at least 18.

   (3)  Subject to subregulations (4) and (5), if:

   (a)  a person mentioned in subregulation (1) applies for:

   (i)       a permanent visa; or

   (ii)      a Business Skills (Provisional) (Class UR) visa; or

   (iia)    a Business Skills (Provisional) (Class EB) visa; or

   (iii)     a Student (Temporary) (Class TU) visa; or

   (iv)     a Partner (Provisional) (Class UF) visa; or

   (v)      a Partner (Temporary) (Class UK) visa; or

   (vi)    a General Skilled Migration visa; and

   (b)      the applicant cannot establish compelling and compassionate circumstances for the grant of the visa;

   the Minister must be satisfied 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.

   (4)  Subregulation (3) does not apply if the applicant applies on the basis of being:

   (a)      in a de facto relationship with a person who:

   (i)       is, or was, the holder of a permanent humanitarian visa; and

   (ii)      before the permanent humanitarian visa was granted, was in a de facto relationship with the applicant and informed Immigration of the existence of the relationship; or

   (b)      in a de facto relationship with a person who is an applicant for a permanent humanitarian visa.

   (5)      Subregulation (3) does not apply if the de facto relationship is a relationship that is registered under a law of a State or Territory prescribed in the Acts Interpretation (Registered Relationships) Regulations 2008 as a kind of relationship prescribed in those Regulations.

6. Fifthly, reg 572.314 which provides:

   572.314  

   (1)  If the applicant claims to be a member of the family unit of a person (the primary person ) who holds a student visa having satisfied the primary criteria for that visa, the applicant meets subclause (2) or (3).

   (2)  The applicant meets this subclause if:

   (a)  the applicant became a member of the family unit of the primary person before the grant of the student visa to the primary person; and

   (b)  the applicant was included in the primary person's application under subregulation 2.07AF(3) or in information provided in relation to the primary person's application under subregulation 2.07AF(4).

   (3)  The applicant meets this subclause if the applicant became a member of the family unit of the primary person:

   (a)  after the grant of the student visa to the primary person; and

   (b)  before the application was made.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The issue in the present case is whether or not the applicant satisfied reg 573.314. The issue is not whether or not the applicant and Ms Jessica Li are in a de facto relationship, clearly they are. The delegate accepted that they had been in a de facto relationship from 28 August 2013. The delegate reached that decision based on the evidence before her, which included photographs, a residential tenancy agreement in both names, a joint ANZ bank statement and utilities bills in both names.

2. Ms Li had applied for a visa on 4 March 2014, but she did not declare the applicant as her de facto partner in that application. She was granted the student visa on 27 March 2014. If the applicant became a member of Ms Li’s family unit before the grant of the student visa to Ms Li (that is on 27 March 2014), the applicant satisfied reg 573.314 if he was included in Ms Li’s application: reg 573.314(2). Alternatively, he satisfies reg 573.314 if he became a member of Ms Li’s family unit after the grant of the student visa to Ms Li (that is after 27 March 2014) and before his application was made (namely 9 March 2015): reg 573.314(3).

3. Accordingly, the issue to be determined is when the applicant became a member of Ms Li’s family unit, that is, when he formed or entered into a de facto relationship with her. Pre-hearing submissions dated 15 September 2015 were received from the applicant’s solicitor. In summary, these submissions state that the applicant’s primary submission (“Argument 1”) is that a de facto relationship between the applicant and Ms Li commenced on or about 7 April 2014, “when they jointly entered into a Residential Tenancy Agreement for their current residential premises”. In this respect, the applicant submits:

   ·It was unfortunate that both the applicant and Ms Li did not declare one another as de facto partners in their respective applications. This was because they did not believe they qualified as de facto partners until after 12 months’ cohabitation. It is submitted that reg 2.03A is commonly misconceived this way.

   ·Notwithstanding Ms Li’s state of mind or documentation tendered, the finding of the commencement of a de facto relationship is a question of fact for the Tribunal.

   ·The applicant and Ms Li were not in a de facto relationship at the time Ms Li’s application was granted. The primary basis on which this submission was put was that, apart from an ANZ bank statement, Ms Li and the applicant did not have legal, financial or contractual commitments to one another until the entering into of the residential tenancy agreement in respect of their current premises at Maroubra on 7 April 2014. Therefore, Ms Li and the applicant would not have been in a de facto relationship for over 12 months (at the time Ms Li’s visa was granted).

   ·Compelling and compassionate circumstances exist for the purposes of reg 2.03A(3)(b), namely:

   oThe parties could not entirely confirm their continued cohabitation until Ms Li’s visa was granted

   oThe parties were misguided as to whether or not they were in a de facto relationship , hence their failure to declare the same as if they were in a de facto relationship;

   oThe 12 month requirement was not satisfied by some 18 days, and therefore the Tribunal should be satisfied that there had been substantial compliance.

4. The Tribunal notes that the Residential Tenancy Agreement signed by the applicant and Ms Li was signed on 19 March 2014, it commenced on 7 April 2014.

5. Alternatively, if the Tribunal, like the delegate, finds that the applicant’s de facto relationship commenced on or about August 2013 (Argument 2), the applicant submits that the Tribunal should interpret reg 573.314(2) in accordance with the decision of the Federal Court of Australia Bain v Minister for Immigration and Citizenship [2012] FCA 649 where the Court stated at [25] that”

   Additionally, if cl 572.314 contains the substantive criteria to be met by all secondary applicants who had not been previously declared in accordance with Reg 2.07AF(3) or (4), unfairness would result. If the alternative construction is correct, it would have the effect of denying the capacity of a secondary applicant who became a member of the primary applicant’s family before the primary applicant was granted a visa, but who had not been declared to the Minister to be such a person prior to the grant of the primary applicant’s visa, to meet the criteria for a Subclass 572 Student visa. For instance, if a primary applicant neglected to declare her de facto spouse of many years, prior to the grant of her application for a visa, that spouse could never make an application as a secondary applicant. Counsel for the Minister sought to avoid that obvious unfairness by contending that, in those circumstances, the primary applicant could apply again for a visa and include the long standing de facto spouse in a new application. It is difficult to accept that the draftsperson intended a new application as the solution to a problem likely to be commonly experienced. The construction which the Tribunal adopted and for which the Minister contends, leads to “such plain unfairness and absurdity that it is not to be preferred”: Berenguel at [26] (French CJ, Gummow and Crennan JJ).[1]

   [1] For some reason, the decision of Bains was referred to by the applicant’s agent, both at the hearing and in his submissions as a decision of the High Court of Australia. It is not – it is a decision of the Federal Court of Australia, as the citation itself makes plain. Bains does refer to the High Court decision of Berenguel  v Minister for Immigration and Citizenship [2010] HCA 8 at [26] where the Court states: “Moreover, in this case, the construction for which the Minister contends leads to such plain unfairness and absurdity that it is not to be preferred. The alternative construction for which the plaintiff contends does not compromise the purpose of the Migration Regulations. There is nothing to prevent relevant information being submitted to the Minister after lodgement of the application. Indeed, s 55 of the Act expressly provides for that to be done and requires the Minister to have regard to such information. The Act specifically provides that the Minister may have regard to up-to-date information and, where the purpose of the relevant criterion is to ensure that the standard of English language competency is recently ascertained, a construction which would deprive him of the most recent information seems to be antithetical to that purpose”.

6. These matters were discussed with the applicant at the hearing.

7. I enquired whether or not there was any evidence that the Department had been advised on Mr Li’s status. I was told that there was not.

8. Mr Li told me that he first met Ms Li in Hong Kong in 2008 or 2009. They started “going out”, on 26 March 2011. He remembered this date as this is the date on which they celebrate their “anniversary”. He told me that they started living together in August 2013 because at that time they wanted to see each other more. At the time there was just the two of them in the house, but, as noted, Ms Li continued also to reside at University.

9. I note that at this point the applicant’s agent Mr Cheng submitted that this cohabitation should be distinguished from being in a de facto relationship.

10. The applicant confirmed he and Ms Li had a joint bank account from October 2013. He explained that he had not referred to Ms Li in his application for a working and holiday visa on 19 March 2014, and Ms Li did not refer to him in her application for a student visa on 4 March 2014, as each believed they were not in a de facto relationship until they had lived together for 12 months.

11. I asked whether the applicant when he considered that he and Ms Li had a mutual commitment to the conclusion of all others at this time. He said that Ms Li first moved in with him as they wanted to see each other more. But her tenancy with the university had not actually finished. In October they opened a joint account. I asked the applicant if, and if so when, he and Ms Li decided they wanted to spend the rest of their lives together. He said that they had not made that explicit promise yet, but having been together for over four years, they know they can spend time together for the rest of their lives. And it was in April 2014 when they signed a residential agreement together.

12. I found the applicant to be a most creditable witness, who gave truthful answers to difficult enquiries. As noted, he told me that he and Ms Li “lived together” in August 2013. However, I accept his agent’s submission that this of itself is not determinative of whether or not a de facto relationship commenced at this time. I understood the effect of the applicant’s evidence to be that while he was in a serious and committed boyfriend/girlfriend relationship with Ms Li, it was from the time that they commenced living together in a single property which they leased together in April 2014 that they considered that they were in a de facto relationship.

13. Post-hearing submissions were also received from the applicant’s agent, dated 13 October 2015. Again, the applicant refers to Bains, although he concedes that the decision, or at least this paragraph of the reasons (which would appear to be obiter given the result in the case) have not been followed.

14. The applicant raises additional reasons as to why the “cohabitation/de facto relationship” did not commence on 23 August 2013, but in fact on 7 April 2014, after Ms Li’s student visa was granted. These reasons are, in summary:

    ·Ms Li and the applicant did not “live together” from 23 August 2013, despite the existence of a joint bank account. They were each a party to their own residential tenancy agreements;

    ·Although Ms Li would often stay over at the applicant’s apartment, she had her primary place of residence elsewhere;

    ·Ms Li and the applicant separately returned to Hong Kong between January to march 2014, during which time they did not live together, had no common place of residence and resided with their respective parents;

    ·As such their relationship cannot qualify as “de facto” as they have not been living together (or temporarily apart) , rather, they were living apart and occasionally live together on a temporary basis;

    ·The parties relationship “escalated” upon their decision to move into the Maroubra premises;

    ·Ms Li and the applicant would not have been in a de facto relationship for 12 months (at the time of the grant of the student visa to Ms Li);

15. Again, the applicant submits that there are compelling and compassionate circumstances exist to satisfy reg 2.03A. These are summarised above.

16. I am satisfied, having considered the totality of the evidence, that the relationship between the applicant and Ms Li can be characterised as a de facto relationship from the time that they returned from Hong Kong after their University holidays and signed the residential tenancy agreement on 19 March 2014 (which agreement commenced on 7 April 2014). I consider that the signing of the residential agreement clearly demonstrates, and was consistent with the applicant’s oral evidence, of a mutual commitment to a shared life from this time.

17. I find therefore that the applicant became a member of Ms Li’s family unit on 19 March 2014; this means that reg 573.314(2) is not applicable; reg 573.314(3) is the applicable regulation. The applicant satisfies reg 573.314(3) if he became a member of Ms Li’s family unit after the grant of the student visa to Ms Li (that is after 27 March 2014) and before his application was made (namely 9 March 2015). I have found that the de facto relationship commenced on 19 March 2015; the applicant’s application was filed on 9 March 2015. Accordingly, the applicant is a mere 10 days short in being able to establish a de facto relationship at the time he submitted his application. I accept the applicant’s submission that, in those circumstances, there are compelling and compassionate circumstances for the grant of the applicant’s visa: reg 2.03A(3)(b). These include:

    ·The parties could not entirely confirm their continued cohabitation until Ms Li’s visa was granted;

    ·The parties were misguided as to whether or not they were in a de facto relationship , hence their failure to declare the same as if they were in a de facto relationship;

    ·The 12 month requirement was not satisfied by some 18 days, and therefore the Tribunal should be satisfied that there had been substantial compliance.

18. I consider that there is some force in the applicant’s submission based on Bains, but given that the applicant could not provide any authority as to the obiter remarks having been followed in any other decision, I decline to follow or to apply that reasoning to this application.

DECISION

1. The Tribunal remits the application for a Student (Temporary) (Class TU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 573 Higher Education Sector visa: cl. 573.314(3) of Schedule 2 to the Regulations.

R. C. Titterton
Member