1820202 (Migration)

[2023] AATA 541

1820202 (Migration) [2023] AATA 541 (7 February 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1820202

MEMBER:Angela Cranston

DATE:7 February 2023

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Partner (Residence) (Class BS) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 801 (Partner) visa:

·cl 801.221(2)(c)

Statement made on 7 February 2023 at 12.01pm

CATCHWORDS
MIGRATION – Partner (Residence) (Class BS) visa – Subclass 801 (Partner) – de facto relationship – financial, household and social aspects of relationship and nature of commitment – vague and limited evidence provided to department – further documentary evidence provided and consistent oral evidence given at hearing – relationship history – joint tenancy, bank accounts and notification to government agencies and utilities – personal knowledge of each other consistent with genuine relationship – no documentation of registration of relationship provided – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), ss 5CB(2), 65

Migration Regulations 1994 (Cth), r 109A(3), Schedule 2, cl 801.221(2)(c)

CASE
He v MIBP [2017] FCAFC 206

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

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 Home Affairs on 4 July 2018 to refuse to grant the applicant a Partner (Residence) (Class BS) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 4 March 2014 on the basis of her relationship with her sponsor. At that time, Class BS contained only one subclass: Subclass 801 (Partner). The criteria for the grant of this visa are set out in Part 801 of Schedule 2 to the Migration Regulations 1994 (Cth) (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.    In her visa application, the applicant stated that she first entered Australia [in] May 2013 for a visit from Canada and that as months went by she decided that she would like to stay permanently with her fiancé, that the parties became engaged on 11 November 2015, and that her residential address was [Address 1]. She also stated that they first met at Sydney Airport and became committed to a dec facto relationship on 27 May 2013. The application stated as follows:

We don’t really have any joint ownership, but we are registered with the births, death and marriages department in Sydney. She normally cleans the room, helps around the house and takes care of the place while I work. She is currently unable to work.
We both live in the same house and she has mail sent under the name of [Nickname] but it’s not her birth name. She mostly cleans the room when I’m home sometimes we clean it together. She doesn’t pay for the bills nor rent but if we really do need the money, she’d ask her sister to transfer it into her bank account but we rarely ever need to.
All my friends are aware that we are engaged and want to get married as soon as we have enough financially and when she is able to work. Her mum came over last year around August or so to meet me and she really loves me. She even calls me her son-in-law. My own parents really like her, but they think that we should take the next step when we’re able to financially take care of ourselves and our children in the future. We registered our relationship around August, but we had to change the date on October 4, 2013. During [dates] we went to a gaming convention together [in Melbourne] with two of my friends and we’ll be going again this year in late October. We also went to [Country 1] for a few days of vacation and we also have a gym membership with [Gym].
We didn’t come from really rich families but we’d rather just have enough to support our family. I think one of the hardest relationships in the world is a long-distance one. She was in Canada and I was in Australia. Our time differences were the opposite, how we speak and our personalities even where we grew up were the opposite. If we can get used to not touching each other and kissing each other foreheads or cheeks, that we can get through anything together. She used to work around six days a week from 9am whenever she gets home (around 11 sometimes even 2am) and have three hours sleep at max just to actually spend some time with me for a few hours. You won’t see that much dedication from a girl nowadays let alone one from an online relationship. We always had contact via Skype. When she was in Canada and in [Country 2], we used to leave Skype on 24 hours a day even when we were at work or sleeping so we know what we’re doing and its sort of a form of sleeping together even though we weren’t physically together. The only will that we will have is that all our belongings will be splitted among our children someday.
I met her around 2.5 years ago, [period] before my birthday. Met her through friends on a game called [Game 1] and I didn’t believe that she was female. We were all in a Skype call and she spoke and turns out she was female. I was pretty surprised at the time. Slowly after we started playing [Game 2] together and she was new so I decided to teach her how to play the game. As time went by, we got closer and closer so I decided to ask her to be with me (be my girlfriend). She said she wanted to be with a person that was serious about her (that would marry her) not just some plaything. I said yes because I too wanted a serious relationship. Shortly after, during her birthday I bought her and myself a ring engraved with [sponsor name] loves [applicant name] on the outside and 1/11/11 on the inside. Problem was, I didn’t listen to her and bought a size 13 ring for her because she wasn’t sure what ring size she was and it came out too big so she had to wear it as a necklace and on the other hand mine came out too big so she had to wear it as a necklace and on the other hand, mine came out too small for my finger. Our online relationship deepened from that and eventually she moved over here. In the near future, we are hoping that she is able to work and that were able to have a boy. She says she wants a boy that looks like a mini-me but we can’t have kids yet until we are able to financially take care of them. As for now, we can only be patient but that’s what we are hoping for in the future.

4.Also provided was the following evidence:

Statement of sponsor

Statutory declarations by the sponsor dated 11 April 2016

Statutory declaration of [Mr A] dated 27 June 2017 and identical statutory declaration of [Ms A] dated 11 April 2016

Joint Statement of [Mr and Ms A]

Photos of the sponsor and applicant

5.The applicant was granted a Subclass 820 (Partner) visa on 13 March 2015.

6.The delegate subsequently refused to grant the subclass 801 partner visa on the basis that the applicant did not satisfy cl 801.221 for the following reasons:

Financial aspects
I have considered the financial aspects of your relationship with your sponsor including any joint ownership of real estate or other major assets, any joint liabilities the extent of any pooling of financial resources especially in relation to major financial commitments, whether one person in the relationship owes any legal obligation in respect of the other, and the basis of any sharing of day-to-day household expenses.
In your permanent partner online application form submitted to the Department on 18 February 2016, you state that when you were working at [Employer 1], you were sharing rent with your sponsor. You state that you also receive money from your mother in Canada to help out sometimes and that you and your sponsor have a joint [Utility 1] account.
In your sponsor’s statutory declaration dated 11 April 2016, he states you are currently having difficulties finding work and that ‘we receive help from her mum from time to time for share of rent and living expenses’. Your sponsor also states that you have a joint [Utility 1] account.
Despite a number of requests you did not submit any evidence to support your claims.
As you did not submit any evidence in support of your claims I am not satisfied that you and your sponsor share financial aspects of your relationship in a manner consistent with that of a genuine defector or spousal relationship.
Nature of the household
I have considered the nature of the household including any joint responsibility for the care and support of children, the living arrangements of you and your sponsor and any sharing of the responsibility for housework.
In your permanent partner online application form submitted to the department on 18 February 2016 you state that your ‘fiancé usually works anywhere from 6 to 10pm so I pretty much do the work at home’, including the housework and paying bills. You state that while you were working at [Employer 1] the responsibilities of you and your sponsor ‘were evened out’.
In your sponsor’s statutory declaration dated 11 April 2016 he states that he is ‘usually at work most the time so all the housework, bills are done by her’.
I acknowledge that you and your sponsor may be limited in the range of evidence you can provide given that you claim to reside with your sponsor’s parents. However, I would expect that you and your sponsor could provide some level of documentary evidence to support your claims.
As you did not submit any evidence to support your claims, I am not satisfied that you and your sponsor have established a household in a manner consistent with that of a genuine spousal de facto couple.
Social aspects
I have considered the social aspects of the relationship, including whether you and your sponsor represent yourself to other people as being married to each other, the opinion of you and your sponsor’s friends and acquaintances about the nature of the relationship and any basis on which you and your sponsor plan and undertake joint social activities.
In your permanent partner online application form submitted to the department on 18 February 2016 you state that you and your sponsor were engaged at the office of births, deaths and marriages in 2013 and that your mother was a witness. You state that you have met most of your fiancé’s friends but he’s only spoken to mine online. You state that you each have Leagues club memberships and that you have both travelled to [Country 1] for a vacation. You state that you both travelled twice to Melbourne for a [gaming convention] and that you often attended the gym together until his work hours extended to 10pm.
In your sponsor’s statutory declaration dated 11 April 2016 he states that you have both always done everything together. Your sponsor states that you have travelled together to Melbourne every year to attend the [convention] and to visit friends.
In support of your application, you submitted two forms 888 supporting witness statements from your sponsor’s mother and your sponsor’s father. I note that the statements provided by both are identical and that your sponsor’s father witnessed both statements including his own. I find that the statements provide little insight into the nature of your relationship.
Despite your claims and the invitations from the Department to provide evidence of the social aspects of your relationship with your sponsor, you did not submit any other evidence.
Based on the minimal evidence before me I do not consider that the social aspects of your relationship are indicative of a genuine spousal or de facto couple.
Nature of the commitment of the relationship
I have considered the nature of the commitment you and your sponsor have to each other, including the duration of the relationship, the length of time during which you and your sponsor have lived together, the degree of companionship and emotional support that you and your sponsor draw from each other and whether you and your sponsor see the relationship as a long-term one.
In your permanent partner online application form submitted to the department on 18 February 2016 you state that you love your husband and that you left your family and friends to be with him. You state that your sponsor loves you because he knows you are willing to make that sacrifice for him. You state you are planning on having children together.
In your sponsor’s statutory declaration dated 11 April 2016 he states that he was quite lonely until he met you. Your sponsor states that he did not go out often or speak to friends when he first started working at [Employer 1] and she filled the gap. Your sponsor states that you both play video games together every day and that the videogames brought you closer together. Your sponsor states that he would not know what to do without you and that he wants to spend the rest of his life with you.
Whilst I note that as part of your initial partner application you provided a payment receipt from the office of births, deaths and marriages which appears to be for a future marriage registration, there is no evidence before me to suggest that you and your sponsor have since married. I consider your claimed plans for future to be vague, generic and limited and do not demonstrate that you are in a committed relationship.
As you did not submit any evidence in support of your claims, I am not satisfied that you and your sponsor draw emotional support from each other or have a long-term commitment to each other as claimed.

7.    The applicant applied for review and provided the following to the Tribunal:

·     Wedding invitation for [the sponsor] and [the applicant] dated [Date]

·     3 Photos of the applicant and sponsor appearing in the same clothes and presumably together taken at same event. 

8.    The applicant appeared before the Tribunal on 10 January 2023 to give evidence and present arguments. The Tribunal also received oral evidence from [the sponsor].

9.    The Tribunal put to the applicant that she had not provided sufficient documentation regarding her alleged 10-year relationship.

1. The applicant stated that the parties remained unmarried. She stated her mother had come to Australia 2014/2015 and they had applied to marry to the office of birth, deaths and marriages but wanted to be more financially stable. She stated during Covid she had worked. The applicant confirmed that she was in a de facto relationship since 27 May 2013, that prior to that they had known each other for a year and after they met, she made the decision that from then onwards she would be with the sponsor for the rest of her life.

2. The applicant stated she had been out of Australia twice since she arrived in 2013. When asked why she left the first time, she said it was because of her visa. The Tribunal put to her it understood there was another reason why she left the first time. She stated she flew to [Country 2] where her mother had a house and she agreed it was also because her mother was dealing with the applicant’s grandmother’s affairs. She stated the sponsor knew this and that her grandmother died shortly after she arrived in Australia.

3. The second time the applicant travelled was in December 2013 was because she went to [Country 1] for a day or two because of the visa.  

4. The applicant stated her dog’s name was [Name 1]. She stated the sponsor would know that.

5. The applicant stated the sponsor had his parents and older sister, [Ms B] who was not married.

6. She stated the sponsor was born in [Year]. She also stated in Australia she had worked at [Employer 1] and had worked at a Chinese Restaurant for about a month in December 2021 and currently worked at the same company as the sponsor ([Employer 2]) where she was employed through an agency for about a year. Before that she had attempted to study [Subject 1] and completed her study last week. She stated the course had cost approximately $5000 and both she and the sponsor had co-paid for it. When asked where she had obtained her money from, she stated from her mother and home and they had been sending money for ten years.

7. When asked about their bank accounts, she stated they had separate bank accounts and an account in joint names.    The Tribunal asked for evidence of the joint account. She said that was under the sponsor’s name, but she had access to it.

8. The applicant stated she had paid tax and thought she had declared the relationship to the taxation office. When asked if they had any joint assets, she stated they owned the car but that was not under her name. When asked if they owed anything jointly, she stated no.

9. The applicant stated they were living together in [City 1] from December 2021 from when she had stable work.

10. The applicant stated they had work friends and that [Ms C] and [Mr D] had been identified as the sponsor’s friends in the visa application. When asked when the last time they saw his parents, she stated his father worked in the same company. The company sold [Products].     She stated the last time they saw his mother was two weeks ago or a week before Christmas because they both had covid. His mother had dropped off covid prescriptions at their house in [City 1] and had also dropped off groceries.

11. The Tribunal then spoke to the sponsor. The sponsor stated that the applicant’s dog was named [Name 1]. She arrived in Australia in May 2013. Since then, she had travelled overseas twice, once to [Country 2] and once to [Country 1]. She travelled to [Country 2] because her mother was doing something with the applicant’s grandmother’s apartment. He stated he and the sponsor currently lived in [City 1] and had lived there for 13 months.  He stated in his family were his parents and older sister who had a partner but was not married. He stated he worked at [Employer 2] which did [Products], and his father and the applicant also worked there. When asked what the applicant had been doing with her time, he stated she was studying [Subject 1] and had done an overseas Canadian course which she had finished in the last few days. He was unsure of the total course cost but stated they had their money together and both had paid for it. When asked for details, he stated they had their own accounts, and thought they had a dual account but learned it was his account that she could access. He also stated her pay was going into his account which they thought was a joint account. He stated he thought they now had a joint account. He also stated he was unsure about the banking.

12. The sponsor stated they both saw his mother when they had covid from 5 December 2022 and she had dropped off medicines and shopping.     The sponsor stated he had paid tax and believed he had declared his de facto relationship to the taxation office.     He stated they were a real couple, they lived and worked together and their families knew each other well.

13. The Tribunal put to the applicant that the department was not satisfied of the genuineness of their relationship based on the evidence and stated it wanted further documentary evidence.  

14. The Tribunal received the following:

    Tax return identifying the sponsor as the applicant’s spouse,

    Statement of account for [bank] account ending in [Number 1] (name undisclosed), [Number 2] in joint names since 13 June 2022 onwards and [Number 3] (name undisclosed). The accounts also show that withdrawals were made from [Number 2] to [Number 1] from June 2022, deposits were made into [Number 2] from [Number 1] and [Number 3] in December 2022 and deposits were made into [Number 3] from [Number 2] in December 2022.   

    Tenancy agreement for [Address 2] in applicant and sponsor’s name.  

    [Utility 2] account in sponsor’s name stating that the applicant had access to the account.

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

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The issue in this case is whether the applicant is the spouse of de facto partner of an Australian citizen.

Whether the parties are in a spouse or de facto relationship

1. Relevantly to this matter, cl 801.221(2)(c) requires that at the time of this decision, the applicant is the spouse or de facto partner of the sponsoring partner, who must be an Australian citizen or Australian permanent resident or an eligible New Zealand citizen who was specified in the Subclass 820 visa application as the spouse or de facto partner of the applicant. In the present case the applicant claims to be the de facto partner of the sponsor who is an Australian citizen and was identified in the related Subclass 820 visa application. On the evidence before it, the Tribunal is satisfied that the sponsor is the ‘sponsoring partner’ of the applicant.

Are the parties in a de facto relationship?

1. 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).

2. 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 reg 1.09A(3) which is attached to this decision. Each of the specific matters contained in reg 1.09A(3) are effectively questions which must be answered: He v MIBP [2017] FCAFC 206.

3. At hearing, the applicant continuingly referred to an application to birth, deaths and marriages, however there is no documentation before it that suggests that the party’s relationship has been registered nor that it is a registered relationship. While this would usually cause some concern, the parties presented to the Tribunal as somewhat simplistic and naïve. Indeed, the Tribunal notes that the Department found it was not satisfied on the basis of the information given that the parties were in a genuine and continuing relationship because of a lack of evidence in relation to financial, household and social aspects and a lack of evidence as to the party’s commitment to one another. The Department also found that there was little evidence to support claims of pooling of financial resources nor that the parties were living together. The Department also found third parties’ statements provided little insight into the nature of their relationship. The Department also found there was no evidence that the parties had married and the Department considered their claimed plans for the future to be vague, generic and limited and did not demonstrate a committed relationship.

4. Since then, the parties have provided some documentation that identifies that they share financial responsibility for a rental property. They have also provided documentation that suggests they both access the sponsor’s bank account.  They have also presented evidence that indicates that they have told Australian government agencies about their relationship.  In addition, the parties provided consistent evidence at hearing about their meeting, the progression of their relationship, their living arrangements and socializing and commitment to one another. They also demonstrated a knowledge of each other (the sponsor was able to spontaneously state the name of the applicant’s favorite deceased pet at hearing) that is consistent with a genuine relationship. The Tribunal is also satisfied that given the consistent evidence at hearing about when they last saw the sponsor’s family, that family are genuinely supportive of their relationship.

5. On the basis of all the evidence, including the financial, the nature of the household, the social aspects and the parties commitment to one another, the Tribunal is satisfied that at the time of decision the parties have a mutual commitment to shared life to the exclusion of others; genuine and continuing relationship; and live together on a permanent basis.

1. On the basis of the above the Tribunal is satisfied that the requirements of s 5CB(2) are met at the time of this decision. Therefore, the applicant meets cl 801.221(2)(c).

DECISION

1. The Tribunal remits the application for a Partner (Residence) (Class BS) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 801 (Partner) visa:

   ·cl 801.221(2)(c)

Angela Cranston
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).