1725319 (Migration)

[2020] AATA 1856

1725319 (Migration) [2020] AATA 1856 (11 February 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1725319

MEMBER:Helena Claringbold

DATE:11 February 2020

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) visa:

· cl.820.221(3)(a) of Schedule 2 to the Regulations; and

· cl.820.221(3)(b)(ii) of Schedule 2 to the Regulations; and

· cl.820.221(3) of Schedule 2 to the Regulations.

STATEMENT MADE ON 11 FEBRUARY 2020 AT 7:27AM

CATCHWORDS

MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – genuine de facto relationship at time of application – relationship ceased – exception criteria – child of relationship – right to custody – statutory imposition of parental responsibility – Child Support assessment – formal maintenance obligation in place –decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), ss 5CB, 65
Migration Regulations 1994 (Cth), r 1.09A; Schedule 2, cls 820.221

CASES
He v MIBP [2017] FCAFC 206
Srour v MIMIA (2006) 155 FCR 441

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to subsections 16(2AB)-16(2AC) of the Child Support (Registration and Collection) Act 1988 and replaced with generic information.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. On 25 October 2016, [the applicant], also known as [Alias 1], (the applicant) applied for a Partner (Temporary) (Class UK) visa. The application was based on her de facto relationship with [Mr A], the sponsor.

2. On 16 October 2017, a delegate of the Minister for Immigration and Border Protection refused to grant the visa. The delegate was not satisfied that the applicant and the sponsor are genuine de facto partners. Therefore, the applicant did not meet cl.820.211 of Schedule 2 to the Migration Regulations 1994 (the Regulations) made under the Migration Act 1958 (the Act). On 17 October 2017, the applicant provided the Tribunal with a copy of the delegate’s decision. This is a review of the delegate’s decision.

3. The Tribunal considered the evidence before it individually and as a whole.  As the decision is favourable for the applicant, the Tribunal proceeded to make a decision on the papers.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The Tribunal has taken into consideration, individually and as a whole, all the evidence in the Department of Immigration and Border Protection’s (the Department’s) case file and the Tribunal’s case file.

   ISSUE

6. The issue in this matter is whether the applicant is the de facto partner of the sponsor as defined in s.5CB of the Act.

   BACKGROUND ON THE EVIDENCE

7. The applicant was born in [year] in Tay Ninh, Vietnam. Her parents and [number of] siblings live in Vietnam and she has one sibling who lives in Australia. [In] February 2013, the applicant arrived in Australia as the holder of a [tourist] visa. She subsequently entered Australia [in] March 2014 as the holder of a [visitor] visa.

8. The applicant was previously in a de facto relationship with [Mr B]. On 13 May 2014, the applicant lodged an application for a Subclass 820/801 partner visa sponsor by [Mr B]. On 25 October 2016, the applicant, through her migration agent, withdrew the ongoing partner visa application. On 25 October 2016, the applicant applied for the partner visa under review. 

9. The sponsor was born in [year] in [Suburb 1], Australia and he is an Australian citizen by birth. His parents and one sibling live in Australia. The sponsor did not declare any previous marriages or de facto relationships.

10. In July 2015, the parties met in Sydney, Australia. [In] August 2015, they entered into a de facto relationship. On [date], the applicant gave birth to the parties’ child (the child).

11. On 4 April 2019, the applicant, through her migration agent, notified the Tribunal that her relationship with the sponsor had broken down on or around 1 April 2019.

    Was the applicant the de facto partner of an eligible citizen?

12. The Tribunal is satisfied that the sponsor, at the time of the visa application and decision was and is an Australian citizen who has turned 18. 

    Were the parties in a de facto relationship?

13. 'De facto partner' is defined in s.5CB of the Act, which 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). There is no evidence before the Tribunal that the parties are married.

    CLAIMS AND FINDINGS

14. In forming an opinion as to whether the parties were in a de facto relationship, at the time of application, 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. Each of the specific matters contained in r.1.09A(3) are effectively questions which must be answered: He v MIBP [2017] FCAFC 206.

    The financial aspects of the parties’ relationship

15. The parties’ did not have any joint ownership of real estate or other major assets or joint liabilities or pooling of financial resources, especially in relation to major commitments. Other than the parties’ joint bank account, lease agreements, bond payment and the sponsor nominating the applicant as a beneficiary on his superannuation, they did not owe any legal obligation in respect of each other. The information about the financial aspect of the parties’ relationship is limited. The applicant’s migration agent stated that throughout the parties’ relationship, the sponsor controlled all official documentation relating to the family. However, the information that has been provided was given by the sponsor while the relationship continued. The joint bank statements record regular deposits of the sponsor’s salary and various debit transactions for rent, insurance and car payments, utility accounts and childcare payments.  Also recorded is a refund of the parties’ bond payment.  The Tribunal accepts that the parties had a legal obligation with respect to their joint bank account and utility accounts and lease agreements and bond payments and the sponsor had legal obligations with respect to the applicant relating to his superannuation fund. It accepts that the parties shared some day to day household expenses.

    The nature of the parties’ household

16. The parties lived at two residential addresses together. The applicant provided copies of lease and bond documents relating to the addresses. The applicant’s migration agent stated that the applicant advises that prior to the relationship ceasing the parties shared cooking, cleaning, household maintenance and caring for their child. Having considered this evidence and the sponsor’s statement of June 2019, that the parties shared their child together and had been sharing custody of the child, the Tribunal accepts that the parties shared joint responsibility for the care and support of their child. Although there is little evidence about the parties’ living arrangements, the Tribunal is inclined to accept that the parties lived together and shared the responsibility for housework.

    The social aspects of the parties’ relationship

17. Confirmation that the parties travelled together in 2016 has been provided. The applicant provided various third party statements, which are summarised as follows:  [Mr C] in December 2018, stated that he was working with the sponsor. He met the parties at Christmas functions etc. [Mr D] in January 2019, stated that he worked with the sponsor for over 15 years.  He had known the applicant since the parties met and became to know her well. He socialised with the parties. [Mr E], in January 2019, stated that the sponsor began working for him as an apprentice 16 years ago and continued to work for him until 2018.  During this time they have become like family. He socialised with the parties regularly and witnessed the sponsor’s family welcome the applicant. [Mr F], in June 2019 stated that he had known the applicant as his sister-in-law and he has known her for six years and the sponsor for three and a half years. He met with the parties regularly during their relationship.  He attended the birth of the parties’ child.  He believes that the parties had a loving relationship and it is unfortunate that their relationship has ceased, particularly as they have a child together. All declarants believed that the parties had a genuine relationship. Photographic evidence depicts the parties together at their child’s birth and together and with others at different locations. Although the parties have not provided a statement about this aspect of their relationship the Tribunal accepts on the evidence that the parties represented themselves as being in a de facto relationship and were seen by other people as de facto partners. The Tribunal accepts that the parties planned and undertook social activities together.

    The nature of the parties’ commitment to their relationship

18. [In] August 2015, the parties entered into a de facto relationship. On [date], the applicant gave birth to the parties’ child. On 4 April 2019, the applicant, through her migration agent, notified the Tribunal that her relationship with the sponsor had broken down on 1 April 2019 when the sponsor ‘kicked her and their common child’ out of the family home.

19. On 22 February 2019, the Tribunal received information resulting from a parental testing procedure between the sponsor and the child.  The information demonstrates that the sponsor is the putative father of the child.

20. On 13 June 2019, the sponsor wrote to the Tribunal and stated the following: he had been sponsoring the applicant for a partner visa for the past 32 months. The relationship between the applicant and the sponsor has broken down and is not reconcilable. The parties have a child together and have been sharing custody of the child. He is having trouble trusting the applicant. After deliberation and having considered numerous factors, it has been concluded that the relationship has ended.  He withdraws sponsorship for the partner visa application.

21. In October 2019, the Tribunal received information resulting from a parental testing procedure between the applicant and the child.  The information demonstrates that the applicant is the putative mother of the child.

22. The Tribunal accepts the following: that the parties lived together as de facto partners for almost four years. In December 2016, the parties’ child was born. Having considered the length of the relationship and the birth of the child, the Tribunal accepts that the parties would have provided each other with companionship and support.

23. The Tribunal accepts that the parties’ relationship ceased around 1 April 2019 and there is no evidence that the parties have reconciled.   

24. The Tribunal is satisfied that, at the time of application, the parties had a mutual commitment to a shared life as de facto partners and that their relationship was genuine and continuing and that they did not live separately and apart on a permanent basis.

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.

    Are the additional criteria for a de facto relationship met?

26. In this case, at the time of application, the applicant and the sponsor were at least 18 years old and the parties had been de facto partners for at least the 12 month period ending immediately before the date of the application. For these reasons, the Tribunal is satisfied that the applicant meets the additional criteria prescribed in r.2.03A. The Tribunal is satisfied that at the time of application, the parties were in a genuine and continuing de facto relationship.

    Is there an exception for the grant of the visa?

27. Clause 820.221(3)(b)(ii) of Schedule 2 to the Regulations allows for the grant of the visa where the relationship between the applicant and the sponsoring partner has ceased, and there is a child in respect of whom the applicant has custody, access, or a residence or contact order made under the Family Law Act 1975. The sponsor must also have these rights, or a child maintenance obligation.

28. A person can have a right to custody as an incident of the statutory imposition of parental responsibility by operation of the Family Law Act in relation to a biological child. Similarly, a person can have a formal maintenance obligation to a biological child without a court order, by operation of the Child Support (Assessment) Act 1989 rather than the Family Law Act: Srour v MIMIA (2006) 155 FCR 441.

    Has the parties’ de facto relationship ceased?

29. The evidence from the applicant is that the parties’ relationship ceased on 1 April 2019. In June 2019, the sponsor gave evidence that the parties’ relationship ceased. There is no evidence that the parties relationship continues. Having considered the evidence completely, the Tribunal accepts that at the time of decision, the parties’ de facto relationship has ceased. Therefore the applicant does not meet cl.820.221(1)(a) of Schedule 2 to the Regulations.

30. As the Tribunal is satisfied that the parties’ relationship has ceased, it will go on to consider whether the exception criteria applies in this matter. The Tribunal accepts that the sponsor and the applicant are recorded on the child’s birth certificate as his parents. It accepts that DNA evidence demonstrates that the sponsor and the applicant are the biological parents of the child.

31. The Tribunal considered the evidence provided by the applicant in June 2019, that since the parties’ relationship ceased she and the child have lived with her sister. The arrangements between herself and the sponsor are that the child lives with her from Saturday to Wednesday and with the sponsor from Wednesday evening to Saturday. When the child is with her, she tends to his needs. When the child goes to the sponsor, she prepares food and clothes for him.  When the child is with the sponsor he attends childcare on the Thursday and Friday. In January 2020, the applicant’s migration agent advised the Tribunal that these arrangements remain unchanged, with the child living with the applicant for five days each week and with the sponsor for two days each week.

32. The Tribunal accepts that the Department of Human Services, Child Support (CSA) has assessed the sponsor and the applicant for the costs of the child for the period 5 November 2019 to 4 February 2021. As evidenced by a letter dated November 2019, the CSA advised the sponsor of the details of the assessment and requested that the payments be made for the child to CSA.

33. This decision is a synopsis of the evidence before the Tribunal. Having considered the evidence individually and as a whole, the Tribunal is satisfied of the following: that the applicant would continue to meet the requirements of subclause cl.820.211(2), (5) or (6) except that the relationship between the applicant and the sponsoring partner has ceased. The former sponsor and the applicant have a child together of whom they have parental rights and obligations. The CSA assessment has put in place arrangements for financial support and care of the child for a period of time and as such a formal maintenance obligation is in place.

34. The Tribunal finds that the applicant meets cl.820.221(3)(a) and cl.820.221(3)(b)(ii) and cl. 820.221(3) of Schedule 2 to the Regulations.

35. Given these findings, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for the grant of the visa.

    DECISION

36. 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) visa:

    ·cl.820.221(3)(a) of Schedule 2 to the Regulations; and

    ·cl.820.221(3)(b)(ii) of Schedule 2 to the Regulations; and

    ·cl.820.221(3) of Schedule 2 to the Regulations.

    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).

    cl.820.221(3)(b)(ii) of Schedule 2 to the Regulations

     An applicant meets the requirements of this subclause if:

    (a)  the applicant would continue to meet the requirements of subclause 820.211(2), (5) or (6) except that the relationship between the applicant and the sponsoring partner has ceased; and

    (b)  either or both of the following circumstances applies:

    (i)  either or both of the following:

    (A)  the applicant;

    (B)  a dependent child of the sponsoring partner or of the applicant or of both of them;

    has suffered family violence committed by the sponsoring partner;

    (ii)  the applicant:

    (A)  has custody or joint custody of, or access to; or

    (B)   has a residence order or contact order made under the Family Law Act 1975 relating to;

    at least 1 child in respect of whom the sponsoring partner:

    (C)  has been granted joint custody or access by a court; o

    (D)  has a residence order or contact order made under the Family Law Act 1975; or

    (E)  has an obligation under a child maintenance order made under the Family Law Act 1975, or any other formal maintenance obligation.