1508835 (Migration)

[2016] AATA 3477

1508835 (Migration) [2016] AATA 3477 (1 March 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Jatinder Singh Rakhra

CASE NUMBER:  1508835

DIBP REFERENCE(S):  BCC2014/696567

MEMBER:Suzanne Carlton

DATE:1 March 2016

PLACE OF DECISION:  Adelaide

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

·r.2.03A.

Statement made on 01 March 2016 at 11:49am

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 June 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 applied for the visa on 11 March 2014 on the basis of his relationship with his 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 delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.820.211(2) because she was not satisfied that the applicant met r.2.03A – that the parties had been in a de facto relationship for at least 12 months prior to the date of application. 

4. The applicant appeared before the Tribunal on 15 December 2015 to give evidence and present arguments. The Tribunal also received oral evidence from  Carmen Yuk Lan Chung, Floyd Shu Him Siow, Manpreet Singh, Satinder Pal Singh.

5. The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The parties claim to have met in September 2011.  At that time, both parties were still married.  The applicant claims that he separated from his wife in 2011 or 2012, but the divorce was not finalised until 7 February 2014.

8. The sponsor claims to have separated from her husband around 2011/2012 but she continued to share a residence with him and their children until 6 June 2014.

9. The issue in the present case is whether the parties were in a de facto relationship for at least 12 months prior to the application’s lodgement and if not, whether there are nevertheless compelling and compassionate reasons for the grant of the visa.

10. As the date of application was 11 March 2014, the Tribunal must consider the nature of the parties relationship at March 2013 or earlier. 

    SPOUSE/DE FACTO (cl.820.211(2)(a), (3)(e), (4)(e), (5)(e), (6)(d), cl.820.221)

    Whether the parties are in a spouse or de facto relationship

11. Clause 820.211(2)(a) 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.

    Are the parties in a de facto relationship?

12. ‘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).

13. 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.

    Are the other requirements for a spousal relationship met?

14. The Tribunal has had regard to the evidence provided relating to the financial aspects of the relationship, including joint ownership of assets, and joint liabilities; the extent of any pooling of financial resources, any legal obligations owed to the other party; and any sharing of day-to-day household expenses.

15. The Tribunal notes that the parties have evidenced financial intermingling.  Their joint account was opened in December 2013 (four months prior to the lodgement) but transfers between the separate accounts of the parties pre-dated the opening of the joint account, dating back to February 2013. 

16. However, the evidence also indicates that the applicant then had financial intermingling with his former wife, who he divorced in February 2014.  These transfers continued up to June 2013.

17. The evidence also indicates that the sponsor continued to have financial intermingling with her then husband, at whose residence she continued to reside.  She states she continued to reside there to protect her position in the pending property settlement but that they were then separated under the same roof.

18. Finally, there are a number of Centrelink statements to the sponsor in evidence, including those dated November 2015, December 2013 and August 2013, all of which list the sponsor as not partnered.

19. The Tribunal has had regard to the evidence provided relating to the nature of the parties’ household, including any joint responsibility for the care and support of children, the parties’ living arrangements; and any sharing of housework.

20. The parties entered into a joint lease in June 2014.  They claim that prior to that, each was staying at the other’s residence a few nights a week.

21. The Tribunal has had regard to the evidence provided relating to the social aspects of the relationship, including whether the parties represent themselves to other people as being married to each other; the opinion of friends and acquaintances about the nature of the relationship; and any basis on which the persons plan and undertake joint social activities.

22. The parties appear to have held themselves out as a couple and the statements support that they have done so. 

23. The Tribunal has had regard to the evidence provided relating to the nature of persons’ commitment to each other, including the duration of the relationship; the length of time they have lived together; the degree of companionship and emotional support they draw from each other; and whether they see the relationship as long-term.

24. The parties appear to evidence companionship and emotional support they draw from the other and appear to see the relationship as long-term.

25. On the basis of the above the Tribunal is satisfied that the requirements of s.5CB(2) are met at the time of application.

26. Therefore the applicant meets cl.820.211(2)(a).

    Are the additional criteria for a de facto relationship met?

27. 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).

28. The Tribunal accepts that the parties’ were each over 18 at the time of application.

29. The Tribunal is not satisfied that for the 12 months prior to the time of application the parties were in a de facto relationship.

30. The requirement in r.2.03A(3) that the applicant has been in the de facto relationship for at least the period of 12 months ending immediately before the date of application, unless compelling or compassionate circumstances exist for the grant of the visa, does not apply if:

    ·the applicant applies on the basis of being in a de facto relationship with a person who has held a permanent humanitarian visa, and who was in a de facto relationship with the applicant and informed Immigration of the existence of the relationship before that visa was granted: r.2.03A(4)(a); or

    ·the applicant is a in a de facto relationship with a person who is an applicant for a permanent humanitarian visa: r.2.03A(4)(b); or

    ·if the visa application was made on or after 9 November 2009, the de facto relationship is a relationship that is registered under a law prescribed in the Acts Interpretation (Registered Relationships) Regulations 2008 as a kind of relationship prescribed in those Regulations.

31. None of these circumstances arise on the evidence.

32. For these purposes, the expression ‘compelling and compassionate circumstances for the grant of the visa’ has not been defined in the legislation. Whether there are compelling and compassionate circumstances is a matter of fact and degree for the Tribunal to determine. The scope of the meaning of the phrase is referenced by the context in which it appears, namely, as an exception to the 12 month requirement. Having regard to the ordinary meaning of the words, ‘compassionate’ suggests ‘circumstances that invoke sympathy or pity’. ‘Compelling’ in its wide, ordinary meaning means ‘forceful’ and, therefore, convincing: see Paduano v MIMIA [2005] FCA 211.

33. The parties and witnesses have provided evidence of the role of the applicant in the lives of the sponsor’s children.  The parties and witnesses have provided evidence of the emotional and trying time the children have gone through during their parents’ separation. 

34. The applicant has provided school reports indicating steady improvement in the youngest child’s studies over the past couple of years.  While the improvement could be attributable to a number of factors, I consider that the need to avoid further upset to the children’s routine and their mental health comprise compelling and compassionate reasons, in this matter, to waive the r.2.03A requirements. 

35. For these reasons the Tribunal is satisfied that the applicant meets the additional criteria prescribed in r.2.03A.

36. 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

37. 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

    ·r.2.03A.

    Suzanne Carlton
    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).