1917422 (Migration)

[2022] AATA 3896

1917422 (Migration) [2022] AATA 3896 (17 August 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1917422

MEMBER:Ann Duffield

DATE:17 August 2022

PLACE OF DECISION:  Canberra

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 820.211 of Schedule 2 to the Regulations

·cl 820.221 of Schedule 2 to the Regulations

·reg 2.03A

Statement made on 17 August 2022 at 11:47am

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – genuine and continuing relationship – financial, household and social aspects of relationship and nature of commitment – further evidence and supporting statements provided – living together as a couple for 12 months before application made – previously living together in third country – registered civil partnership in Australia – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5CB(2), 65
Migration Regulations 1994 (Cth), rr 1.09A(3), 2.03A, Schedule 2, cls 820.211(2)(a), 820.221

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 to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 1 May 2018 on the basis of his relationship with his sponsor. At that time, Class UK contained only one subclass: Subclass 820 (Partner). The criteria for the grant of this visa are set out in Part 820 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. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl 820.211 or reg 2.03A because the delegate was not satisfied that the parties were in a genuine ongoing relationship envisaged by the Migration Act nor that they were living together as a couple 12 months prior to the lodgement of their application.

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

   Consideration of claims and evidence

5. The issue in the present case is whether the parties are in a genuine and ongoing spousal relationship envisaged by the Migration Act and whether they were in a relationship 12 months prior to the lodgement of their application.

   Whether the parties are in a spouse or de facto relationship

6. 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 by birth. A copy of her passport is on the Tribunal’s file.

7. The applicant is a citizen of the United Kingdom born on [Date 1]. He was previously married (divorced [May] 2008) and has two adult children who live in the UK. His partner, [the sponsor], is an Australian citizen by birth born on [Date 2]. She has declared no previous marriages or children.

8. The couple met in early 2012 and began a relationship in early 2014. The applicant travelled several times to see [the sponsor] in Australia in 2014. In April 2015 [the sponsor] moved to [Country 1] to live with the applicant. They moved back to Australia in 2018 and have lived together since that time.

   Are the parties in a de facto relationship?

9. 'De facto partner' is defined in 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).

10. 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.

11. The parties have, since the delegate’s decision, provided a significant amount of compelling evidence supporting their claims. This includes statutory declarations by third parties including family and friends, evidence of co-habitation over the period 2015-2022, evidence that they began a relationship in 2014, lease documents, copies of banks statements and other financial records, photographs depicting themselves and others continuously from 2014 until now and extensive comments on the delegate’s decision.

12. The Tribunal has considered the financial aspects of the relationship – including joint ownership of assets; 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.

13. The parties have provided evidence supporting their claims that they have lived together since 2015, first in [Country 1] and then in Australia. Whilst their names don’t appear on lease agreements, the Tribunal is satisfied that the reasons for not doing so are reasonable. Since arriving in Australia, they have purchased a car together and have a joint bank account. They share expenses and the utilities bills demonstrate that. They have ended their rental agreement and now share a townhouse that [the sponsor] owns in her own name. They also claim to have exchanged contracts on a block of land with the intent to build a house next year once settlement occurs. They have not provided any documented support for this claim, however the Tribunal accepts it in good faith.

14. The Tribunal is satisfied that the financial aspects of the parties’ relationship support a finding that they do not live separately and apart and have a mutual commitment to a shared life together to the exclusion of all others.

15. The Tribunal has considered the nature of the household – including any joint responsibility for care and support of children; parties’ living arrangements; and any sharing of housework.

16. The evidence provided by the parties supporting this aspect of their relationship includes written statements and observations of others, including family and friends. It is also supported by their joint responsibilities for the payment of bills and other living expenses. There is evidence of the time spent with the applicant’s family overseas and their acceptance of the relationship.

17. The Tribunal is satisfied that this aspect of the parties’ relationship supports a finding that they are in a genuine and ongoing spousal relationship and that they see that relationship as long term.

18. The Tribunal has considered 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.

19. There is significant and compelling evidence, including written statements from the parties and others providing corroborative and detailed insights into the couple’s relationship and life together. Their families, friends and co-workers view them as a committed and dedicated couple and photographs from 2014-2022 support that view.

20. The Tribunal is satisfied that the social aspects of the relationship support a finding that the parties are in a genuine and ongoing relationship and that they have a mutual commitment to a shared life together to the exclusion of all others.

21. The Tribunal has considered 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.

22. The parties first met in 2012 and began a relationship in mid-2014 when they both attended a wedding in [Country 2]. The wedding was between the applicant’s best friend and [the sponsor]’s sister. The applicant visited [the sponsor] in Australia again later in 2014 and in April 2015 she quit her job [with Employer] and moved to [Country 1] to live with him. There is ample evidence supporting this account of events. They have travelled together extensively in their almost eight years together, including in the past three years, and are accepted as a genuine and dedicated couple by their family, friends and co-workers. They have also registered their civil partnership in the ACT in July 2019.

23. The Tribunal is satisfied that the parties have a mutual commitment to a shared life together to the exclusion of all others and that their relationship is genuine and ongoing. The Tribunal is satisfied that they do not live separately and apart.

24. On the basis of the above the Tribunal is satisfied that the requirements of s 5CB(2) are met at the time the visa application was made and at the time of this decision. The Tribunal has considered the subclauses and finds that the applicant meets cl 820.211 and cl 820.221.

    Are the additional criteria for a de facto relationship met?

25. Persons claiming to be in a de facto relationship for a partner visa must also meet the additional criteria in reg 2.03A. Both members of the couple must be at least 18 years old: reg 2.03A(2). In this case, at the time of application, the applicant and the sponsor were at least 18 years old.

26. The applicant must have been in the de facto relationship for at least the 12-month period ending immediately before the date of the application: reg 2.03A(3). This requirement will not apply in limited circumstances, such as: where the de facto relationship has been registered under a relevant State or Territory law (for applications made on or after 9 November 2009); where the applicant can establish compelling and compassionate circumstances for the grant of the visa; or in certain circumstances where the sponsor held, holds or is applying for a permanent humanitarian visa.

27. The Tribunal is satisfied that the evidence supports the parties claims that they met in around mid-2014 and began living together as a couple when [the sponsor] quit her job and travelled to [Country 1] in April 2015. The Tribunal is also satisfied that, apart from the demands of work, the parties have lived together continuously since that time and were living together as a couple for at least 12 months prior to the lodgement of their application in April 2018.

28. The parties have also provided evidence that they have registered their relationship as a civil partnership in the ACT [in] July 2019. A copy of the Certificate is on the Tribunal’s file.

29. This is a kind of relationship prescribed in the Acts Interpretation (Registered Relationships) Regulations 2008: reg 2.03A(5). Accordingly, the 12-month requirement does not apply.

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

    CONCLUSION

31. 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

32. 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 820.211 of Schedule 2 to the Regulations.

    ·cl 820.221 of Schedule 2 to the Regulations; and

    ·reg 2.03A

    Ann Duffield
    Senior 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).