1513464 (Migration)

[2016] AATA 4327

1513464 (Migration) [2016] AATA 4327 (26 August 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Eoin Paul Henderson

CASE NUMBER:  1513464

DIBP REFERENCE(S):  BCC2014/2710051

MEMBER:Marten Kennedy

DATE:26 August 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; and

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

·r.2.03A of the Regulations.

Statement made on 26 August 2016 at 3:45pm

STATEMENT OF DECISION AND REASONS

1. This is an application for review of a decision of a delegate of the Minister for Immigration on 23 September 2015 to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s.65 of the Migration Act 1958 (the Act).

2. Mr Henderson applied for the visa on 15 October 2014 on the basis of his relationship with his sponsor, Ms Adams. 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). Additional criteria are also imposed by the regulations for persons seeking to satisfy the criteria for the visa on the basis of de facto relationships.

3. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.820.211(2) of Schedule 2 to the Regulations, although appears to have conflated the requirements of that provision with the additional criterion provided for in the Regulations for persons claiming to be in a de facto relationship: r.2.03A.

4. The applicant is represented in this matter by registered migration agent, Mr Ian Lattimore. The applicant has complied with the Tribunal’s Practice Direction on Migration and Refugee Matters given under section 18B of the Administrative Appeals Tribunal Act.  Cogent and relevant written submissions and supporting documentary evidence have been provided to the Tribunal in advance of the scheduled hearing and within the timeframes required. In these circumstances, I have been able to complete the review without proceeding to a hearing.

   CONSIDERATION

5. Clause 820.211(2) of Schedule 2 to the Regulations provides one means by which cl.820.211 may be satisfied. It requires, among other matters not materially in issue that at the time the visa application was made (15 October 2014) the applicant is the de facto partner of an Australian citizen. That is the first issue I must decide.

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. I am satisfied that the couple are not related by family and are not married.

8. As to the other matters, provision is made in the regulations such that I must take into account a range of factors in making a determination as to those matters.  In forming an opinion whether the couple 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).

   Whether the parties are in a de facto relationship at time of application

9. As to the financial aspects of the relationship – including joint ownership of assets, and joint liabilities; extent of pooling of financial resources, any legal obligations owed to the other party; and any sharing of day-to-day household expenses, I have taken into account evidence of a joint bank statement having been opened prior to the date of application.  Statements of this account at the time of application and more recently show that it is an account that is genuinely and regularly used for a variety of domestic transactions.  It demonstrates a pooling of financial resources at the time of application.  Furthermore, I can identify that mortgage and utility payments were met from that account prior to the date of application.

10. As to the nature of the household, including any joint responsibility for care and support of children, parties’ living arrangements; and any sharing of housework, I have taken into account the evidence relating to the date of application demonstrating that the couple cohabited, and have moved together from one home to another, prior to the date of application.  As mentioned above, I have observed financial records demonstrating mortgage payments and household expenses were jointly met.

11. As to the social aspects of the relationship – including whether parties represent themselves to other people as being in a de facto relationship with 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, I have taken into account a statement of Ms Simone Watson of 18 August 2016 to the effect that the applicant has been recognised by the sponsor’s family as a de facto partner of the sponsor since 2013.  I have noted the regularity of contact between Ms Watson mentioned in the statement and place significant weight on it.  I also have taken into account earlier statutory declarations of the sponsor’s parents to similar effect and place significant weight on the opinion of the sponsor’s parents expressed in their statutory declarations.

12. As to the nature of persons’ commitment to each other - including duration of the relationship; the length of time they have lived together; degree of companionship and emotional support they draw from each other; and whether they see the relationship as long-term, I have taken into account a joint statement provided to the Department, dated 30 September 2014.  In that joint statement, the couple indicate they met in September 2013, and began cohabiting in January 2014 in the applicant’s house, before moving together into other premises.  I have taken note of the degree of common interests described by the couple and the degree to which they plan for a future together.  I note that according to the statement, the couple plan to marry.

13. I consider that the evidence before me provides sound justification for concluding that at the time of application the couple had a mutual commitment to a shared life to the exclusion of all others, the relationship was genuine and continuing, and the couple lived together.  I determine each of these characteristics to be present at the time of application, and find that the applicant is the de facto partner of his sponsor at the time of application.

    Are the additional criteria for a de facto relationship met?

14. 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.

15. I am satisfied that the couple are both 18 years of age based on Departmental records before me.

16. I am not satisfied that the applicant and sponsor  have been in the de facto relationship for at least the period of 12 months ending immediately before the date of the application.  In this regard, it is sufficient to note that the evidence of pooling of financial resources post-dates the commencement of the period of 12 months ending immediately prior to the date of application and the couple in their joint statement say that they did not commence cohabitation until January 2014, within that period, and indeed had only met one month prior to the commencement of that relevant period.

17. The issue for me to decide therefore is whether the applicant has established compelling and compassionate circumstances for the grant of the visa.

18. In this regard, my attention is drawn to the interests of Lachlan, a dependant child of the relationship and an Australian citizen.  I accept there is the potential for Lachlan and Ms Adams to face financial hardship in the event that the visa is refused to the applicant and he is required to depart Australia.  I accept also the emotional need for this young family to have the stability and certainty that the grant of the visa will bring. I consider Lachlan’s best interests are served by his father remaining in Australia and financially supporting his family.  I accept that with Lachlan being very young, he and Ms Adams depend heavily on the applicant’s support, and it is unreasonable to require the family unit to separate temporarily for the applicant to pursue partner migration to Australia from offshore with a new application, or alternatively to require Ms Adams and Lachlan to leave Australia to maintain their family unit with the applicant.

19. I accept that the financial and emotional needs of Lachlan and Ms Adams are compelling and are circumstances requiring a compassionate response.  I accept these matters can be addressed only by the grant of the visa to the applicant.

20. I find the applicant has established compelling and compassionate circumstances for the grant of the visa, and in these circumstance need not be in the de facto relationship for the period of 12 months ending immediately before the date of the application.  I find that the applicant meets the additional criteria in r.2.03A of the Regulations.

    Other findings

21. Clause 820.221(2) includes other matters that are not materially in issue but of which I must be satisfied before finding the visa criterion to be met.  I am able to be satisfied of each of these matters on the basis of information available to me from the Departmental file, and the Department’s records.

22. I find Ms Adams, the de facto partner of the applicant, is an Australian citizen and is not prohibited by subclause 820.211(2)(2B)from being a sponsoring partner.  I find she is over 18 years of age, and  I find that Ms Adams sponsors the applicant.

23. I find that Mr Adams held a substantive visa (subclass 457) at the time of application.

24. In light of these findings, I am satisfied that the applicant meets cl.820.211(2) of Schedule 2 to the Regulations. I find that the applicant is not the holder of a subclass 771 (Transit) visa. Therefore the applicant meets cl.820.211 of Schedule 2 to the Regulations.

    Does the applicant continue to meet the requirements of cl.820.211(2)?

25. Clause 820.221 will be satisfied where the applicant continues to meet the requirements of cl.820.211(2) at the time of decision.

26. Evidence addressing each of the aspects of r.1.09A relates also to the time of my decision.  Furthermore, I have evidence before me demonstrating that the couple had a child together, Lachlan, in May this year.  Further evidence has been provided of the couple entering into wills in favour of the other.  The evidence I have considered also justifies making a determination at the time of my decision that the couple had a mutual commitment to a shared life to the exclusion of all others, the relationship was genuine and continuing, and the couple lived together.  I find that the applicant is the de facto partner of the sponsor at the time of my decision.  The relevant sponsorship and citizenship requirements remain in place.  I find that the applicant continues to meet cl.820.211(2) at the time of my decision.

27. I am satisfied therefore that the applicant also meet cl.820.221 of Schedule 2 to the Regulations.

28. I will remit this matter to the Department with directions accordingly.

    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; and

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

    ·r.2.03A of the Regulations.

    Marten Kennedy
    Member