2110261 (Migration)

[2022] AATA 5261

2110261 (Migration) [2022] AATA 5261 (5 October 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Christopher Livingstone (MARN: 5511612)

CASE NUMBER:  2110261

MEMBER:Anne Grant

DATE:5 October 2022

PLACE OF DECISION:  Melbourne

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(2) of Schedule 2 to the Regulations

·cl 820.221(1)(a) of Schedule 2 to the Regulations

·reg 2.03A

Statement made on 05 October 2022 at 3:29pm

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – applicant had been in the de facto relationship for at least the 12 month period ending immediately before the date of the application – genuine and continuing relationship – had and have a mutual commitment to a shared life as de facto partners to the exclusion of all others – decision under review remitted     

LEGISLATION
Migration Act 1958, ss, 5, 65
Migration Regulations 1994, rr 1.09, 2.03A, Schedule 2, cls 820.211, 820.221

CASES
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 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 16 December 2013 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. This matter has a long history. The application for a visa was lodged on 16 December 2013.  It was refused by the Department of Home Affairs on 13 May 2015 because the applicant was found not to mee the Schedule 3 requirements (principally clause 3001 which requires an application to be lodged within 28 days of the last substantive visa cessation, unless there are compelling grounds for waiving that requirement). This decision was affirmed by a Tribunal member of the Refugee Review Tribunal on 22 September 2016.  After appeal to the Federal Circuit Court, the matter was remitted back to the Administrative Appeals Tribunal on 9 March 2020, and then remitted again back to the Department on 21 December 2020, this time with the Tribunal member finding that the applicant did satisfy the Schedule 3 requirements. The Delegate’s decision here under review was then made on 28 July 2021, refusing the application for a second time, for different reasons.    

4. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl 820.211 because the delegate was not satisfied that they met the definition of de facto partner under s.5CB of the Migration Act at the time of application.

5. The applicant and sponsor appeared before the Tribunal on 27 September 2022 to give evidence and present arguments. The Tribunal also received oral evidence from [Mr A], the sponsor’s father.  The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.

6. The applicant was represented in relation to the review. The representative attended the Tribunal hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether the applicant and his sponsor are in a de facto relationship. 

9. With the application for the visa and for subsequent bridging visas, the applicant and sponsor provided the following supporting documents: 

   ·    A statement by the sponsor in response to a notification that the Department had been made aware that the sponsor has been receiving Centrelink benefits for the duration of the claimed relationship and listed as ‘marital status – single’ throughout. In this response the sponsor explains that she declared all income earned and that the applicant was not working or allowed to work during the relationship – hence income was used to support them both. She states that they were under a lot of stress which impacted them emotionally, financially and socially. She claims she gave priority to finding work rather than relying on Centrelink benefits, and was also more concerned about the applicant’s visa status.

   ·    Letter of support by Mrs [B] , the sponsor’s aunt. She states that she has known the applicant since 2011 and found him to be polite and supporting her niece in their relationship and considers them to be in love with each other.

   ·    Statutory Declaration from the sponsor’s mother, [Mrs C] in which she states that she has supported the applicant and sponsor and has provided them with financial assistance for accommodation and food expenses because the applicant has been refused work rights. She notes that the sponsor receives Cenrelink payments but it is insufficient to cover the rent and food. She visits them often and they are a happy couple.

   ·    Statement of [a] neighbour to the applicant and sponsor when they lived in [address]. He states that they introduced themselves and he has observed that they live together in an exclusive, serious and loving relationship which the applicant has told him has been since 2011.

   ·    Statement by each of the applicant and sponsor explaining the history of the relationship and that they are in a genuine and loving relationship.  Both statements explain that they are financially and emotionally dependent on each other.

   ·    Ultrasound report dated 15 October 2012 confirming miscarriage

   ·    Joint bank account details from [Bank 1] Bank account ending *[deleted] dated 15 December 2014, and bank statement 4 December 2014 to 14 December 2014

   ·    Energy Australia account due 9 December 2014 in both names for [address] address.

   ·    Statutory Declaration of [Mrs C] dated 16 December 2014. In this statement, [Mrs C] states that she has known the applicant for around two and one half years and in this time he and her daughter are very much in love.  She notes that he looks after her and she has never seen her daughter so happy.  She notes that [sponsor] had a loan to pay off  and she paid it off last month with the applicant’s help. She says that ‘All I am trying to say is [sponsor] cannot live without him.’ [Mrs C] also states that the visa applicant is currently supporting the sponsor and she expresses a desire that they marry and have children.  She says that they will be very sad if he has to go back to Egypt as he helps all the family and is a fine young man and it will be breaking her daughter’s heart if he goes back to Egypt.

   ·    Tenant ledger in applicant and sponsor’s name, showing rental payments form 20 December 2012 to 5 December 2014, also bond details from NSW Fair Trading in both names for [address] property dated 28 December 2012;

   ·    Statement of [sponsor] dated 12 December 2013 in which the sponsor declares as follows: 

   I [sponsor] meet [the applicant] in the city of Sydney [through] friends. We first meet on 20 April 2012. We continued to see
   each other from that date forth. We decided to form a relationship on the basics on how we felt about each other. We moved in together in June 2012 and have lived together ever since. In August 2012 I fell pregnant with our first child, but unfortunately I had a miscarriage in October 2012.

   During this period it was very hard for me to cope with the loss, but from the support of my partner helped me cope with what happened and I started to continue to feel better about myself. We are currently living together in [Suburb 1] (Sydney) and have been for the last 12 months.

   We are very much in love and happy together and will continue to be for many years to come. If you need any further information about our relationship please do not hesitate to contact our solicitors and I will be happy to provide any further information if required.

   • Statement of [applicant] dated 12 December 2013 in which the visa applicant declares as follows:

   ..my Partner ([sponsor] & I have been living in a De facto relationship together for the past 18 months. This relationship is a genuine relationship and we
   are looking at getting married in the near future.
   I meet [sponsor] at [a location] through friends. We first meet on 20 April 2012. We continued to see each other. We decided to form a relationship on the basics on how we felt about each other. We moved in together in June 2013 and have lived together ever since. I meet [sponsor]’s family in May 2012 and found them to be very pleasant. In August 2012 [sponsor] was pregnant with our first child, but unfortunately [sponsor] lost the baby in October 2012. I supported [sponsor] during the period as much as I could even thou I felt the loss myself.

   We are currently living together in [Suburb 1] (Sydney) and have been for the past year, I am very happy being with [sponsor] and hope to take [sponsor] back home one day to Egypt to meet my family. I would like to spend the rest of my life with [sponsor] and hope to start our life together married here in Australia.

   • Form 888 statutory declaration dated 12 December 2013 of Mrs  [C], the sponsor’s mother in which she states that she speaks to her daughter daily and sees them together at least once a month.  She believes that this is a genuine relationship as they are very much in love and have a great deal of respect for each other.  They are planning to get married and it gives her a great deal of pleasure to see her daughter very happy with the applicant.

   ·[A rental] letter dated 22 May 2020 which states that the applicant and sponsor’s rent is currently in arrears and outstanding; and that the applicant is always falling behind and struggling to keep up rent payments;

   ·Electricity Accounts in both names from Energy Australia during 2020 with substantial outstanding balances owed of $4,751.48;

   ·Joint account Statement [for] the period 2 September 2020 to 1 March 2021;

   ·Photographs of the applicant and sponsor together at various locations;

   • [Tenancy] Receipt in both names  [8] April 2021;

10. Also contained in the departmental file is the application and supporting documents for the applicant’s application for protection.  This application was lodged on 15 March 2010 and refused on 31 March 2011. The Tribunal affirmed the decision on 14 July 2011.  The protection claims related (in summary) to the applicant’s fear of harm due to his decision to change his faith and estrangement from some of his family in Egypt as a consequence of his faith choices.    

11. The departmental file also includes information about two separate requests for ministerial intervention, both were not considered with the first being finalised on 18 November 2011 and the second on 16 December 2011.

12. In the previous Tribunal review proceedings related to the 820 partner visa, the following additional information was submitted and has been considered in this review: 

    ·[A] rental receipt in the name of both applicant and sponsor, dated 17 November 2020;

    ·Energy Australia electricity bill in both applicant and sponsor names due date 7 September 2020;

    ·Joint account Statement [for] the period 2 March 2020 to 17 June 2020;

    ·Baptism Certificate dated 20 April 2018 and photographs of baptism;

    ·Sponsor [Bank 1] account [details], showing account opened in September 2015 and transaction statements 2 July 2020 to 15 December 2020;

13. Prior to the hearing of this review, the following submission and information was provided: 

    ·    Bank Statements [for] the period 1 April 2022 – 2 September 2022 showing day to day transactions including groceries, rent and shopping, as well as deposits from visa applicant’s work receipts.

    ·    Telstra Bill in joint names issued 10 August 2022;

    ·    Sumo Electricity Account statement in both names dated 2 September 2022;

    ·    Messages sent between the applicant and sponsor which demonstrate ongoing daily interactions on a wide range of matters including looking for rental homes, shopping and payment of bills and also photographs of the applicant and sponsor out together in public;

    ·    Statutory Declaration of [Ms B]  dated 25 September 2022, the aunt of the sponsor, in which she declares that to her knowledge the applicant and sponsor have been in a de facto relationship for approximately 10 or more years and have lived together and supported each other financially, spiritually and mentally over that period of time.  She describes the applicant as a hard worker and a good provider and an all-round gentleman to the sponsor and her parents as well as all of the family. 

    ·    Statutory Declaration of [Mrs C] , the sponsor’s mother dated 25 September 2022 in which she confirms that her daughter has been in a relationship for 11 years with the applicant.  She states that they have been living together and supporting each other for quite a period of time now and describes the applicant as a hard worker and a caring partner who makes himself available to all the family.  She states that he loves and is committed to her daughter.  

    ·    Statutory Declaration of [Mr A], the sponsor’s father, undated.  In this statement, [Mr A] sates that he has known the applicant since 2011 and considers him honest and with a worthy character.  He refers to the loss of a child in 2012 which caused his daughter and the applicant great stress.  [Mr A] refers to the applicant’s inability to work in the past but says when he could he worked hard.  [Mr A] asks the Tribunal to let him stay in Australia.

14. The applicant gave evidence in the absence of the sponsor and vice versa. The Tribunal found their evidence to be credible.

15. The visa applicant gave evidence that during their relationship, he and the sponsor have experienced stressful circumstances which have tested their relationship. Firstly, there was the loss of their child in a miscarriage which has had long lasting effects on the sponsor, causing her to experience depression after the miscarriage and what the visa applicant described as ongoing symptoms of poor mental health as his visa application kept being refused – including insomnia and social withdrawal. He has done his best to support and care for her throughout that time, and continues to do so. The multiple refusals of the visa and the court processes they have undergone to get to this point have added to the sponsor’s stress as she worries about their future and the visa applicant having to return to Egypt. The visa applicant noted that these have been difficult issues to deal with but despite that, they have stayed together and continue to plan a life together.

16. The sponsor agreed that she had suffered depression after the loss of their child but was less convinced that she continued to suffer any mental health problems. Nonetheless, her evidence about her level of social functioning was consistent with the applicant’s; and reflects that she is socially withdrawn, and constantly worries about what will happen if the visa is refused and the applicant has to return to Egypt, that she does not work and has not for some time and prefers to stay home than to go out. She agreed that she chooses not to socialise much with friends, and that she sometimes stays up late at night watching YouTube or movies because she can’t sleep. Sometimes she will text the visa applicant in the middle of the night to ask him to download a movie.  When asked why the sponsor did not have access to the account details needed to download a movie, she said that it was because the account is linked to the visa applicant’s AppleID and he generally manages the financial side of things, which is how she likes it. The visa applicant, when asked the same question, said that the sponsor prefers that he manages all that ‘stuff’ because she is anxious about having a credit card. The sponsor separately referred to this concern also, noting that in the past, she has been the victim of fraud when someone fraudulently used her credit card.  The sponsor stated simply that she prefers to leave the finances to the visa applicant, though she sometimes pays bills and has also arranged accommodation for their holidays in New South Wales.   

17. Both the visa applicant and the sponsor gave evidence that although the sponsor has access to their joint account, she generally does not access it, leaving the visa applicant responsible for the shopping and paying most bills. The sponsor gave evidence that she does the cleaning, and the visa applicant does the cooking. The visa applicant said that he tries to make sure that the sponsor eats well. 

18. The Tribunal asked why the applicant and sponsor had not married in the years since they applied for the visa.  The evidence they each gave suggests that they could not afford to do so - firstly due to the financial restrictions on the visa applicant’s ability to work for so many years; and secondly, since he was granted work rights, they have had ongoing court and tribunal costs plus the sponsor has not been fit to work for some time.  At times they had to rely on the sponsor’s parents for financial support.  They could not afford to marry. 

19. The visa applicant works as a [occupation], in a small business with the sponsor as his partner.  However, the sponsor does not undertake much work in the business though they both expressed a hope that she will be able to do so in future.

20. The delegate and a previous Tribunal member placed significant weight on the fact that the sponsor was receiving Centrelink benefits throughout the claimed relationship as a single woman, as an indicator that the relationship was not genuine. Lodged with the pre-hearing submissions was a Centrelink account statement dated 21 September 2021 which states, amongst other things, that the sponsor is not a member of a couple. The Tribunal put this to the sponsor and she was confused by the suggestion, because in her view she had informed them.  She stated that at first, she had not told Centrelink about the relationship because she was supporting the visa applicant in those years he could not work.  There was no income to be declared. However, she has since told them that she is in a relationship with the applicant and confirmed the situation in a face-to-face meeting with them earlier in 2022. The sponsor was of the view that Centrelink now knows that she is in a relationship with the visa applicant.  However, her evidence suggested that she did not appear to be declaring any of his income for Centrelink purposes. The visa applicant expressed confusion about what was required of the sponsor by Centrelink but said that he understood she had now told them that they were in a relationship.  He said she is always careful to declare income when she works on a contract.  He did not seem to be aware of the responsibility for his own income to be declared.

21. When asked what holidays the couple have been on together, they each separately described mini [breaks]– and noted that of course getting away has not been easy over the past years since 2020 due to the pandemic.  They both take responsibility for organising these breaks. The visa applicant said that in addition he tries to get the sponsor out of the house by going for drives or down to the beach for a walk.  He stated that he thinks getting her out of the house is good for her mental state.  Although the sponsor did not seem to consider that her choice of being house-bound was a symptom of social anxiety or of depression, she agreed that they sometimes go for drives and walks to the beach, or out for dinner. She acknowledged that after her miscarriage, she suffered from depression and took some time to recover.  Since then, she prefers managing the home and her own health. Her parents are elderly also and so she is able to help them when needed. The sponsor said that her parents hold the visa applicant in high regard and appreciate what he’s done and does for her. All of her friends know of her relationship with the visa applicant. The visa applicant and sponsor went to her best friend’s wedding together but while giving evidence, the sponsor realised that this happened some years ago now, because it was ‘pre COVID’.

1. The visa applicant expressed a desire to help the sponsor recover her health: principally he was concerned that she get medical treatment for her depression but she has not agreed to do so. When asked of his plans for their future together, the visa applicant said that one of his first priorities is to get the sponsor well again, for example so she will see her friends.  He said she has not been social for some time, and she often sleeps all morning after being unable to sleep at night, when she watches movies.  He discusses his concerns with her parents, who share those concerns – they’ve noticed that she has been withdrawn.  He repeated that one of his first priorities was to get her healthy and then they could work on the business and making her feel safe and supported. 

2. When the sponsor was asked about their future plans, she said that they hope to buy a property together, as they have been renting for a long time. She said that they want to buy a home, get married and get on with their lives, including potentially having children. She noted that despite the difficulties they have experienced, they are still together after eleven years and this indicates how strong and genuine their relationship is.  The visa applicant supported and cared for her when they lost the child even though he would have been hurting himself at the time.  He looks after her and they spend all their free time together.

3. The sponsor gave evidence that her family know and love the visa applicant.  The visa applicant said that he sees them several times a week. The sponsor clarified later that in fact the visa applicant visits them without her if he is on a job near them, so he actually sees them a lot more than she does. The visa applicant told the Tribunal that he considers them his family. The visa applicant gave evidence that he does not see his brother who lives in Australia and has limited contact with his family in Egypt due to his faith choices.  However, his mother had met the sponsor via a phone call and they have chatted to each other on a few occasions. This was confirmed by the sponsor in her evidence.

4. Both the sponsor and the visa applicant stated that they rely heavily on each other for support. They described their love for each other and that they considered the relationship to be a strong one. The sponsor said that she could not cope without the visa applicant as she depends on him ‘for everything’. When asked if she would consider going to Egypt if he was required to return there, the sponsor responded immediately that she would do so.  She stated that she could not bear to think of losing him, but was worried he would have to do national service in Egypt and she held other concerns for him there, related to his faith choices.

5. The sponsor’s father, [Mr A], gave evidence that he has known the visa applicant for more than eleven years and in his opinion, the relationship between his daughter and the visa applicant is a genuine and loving relationship.  He described the visa applicant as a loyal, hardworking, caring man who has looked after his daughter through stressful times. 

   Whether the parties are in a de facto relationship

6. Clause 820.211(2)(b) and 820.221(1)(a) 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, both at the time of application and continuing to the time of decision. 

   Were the parties in a de facto relationship at the time of application and at the time of decision?

7. '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).

8. 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.

9. The evidence reflects that the visa applicant and sponsor rely on each other for financial support as necessary and have done now for more than 10 years. The visa applicant is currently running a small business and manages most of the family finances.  They share responsibility for rent and bills as well as the benefits of income received by either of them.  Bank account statements have been provided which demonstrate a significant and long term pooling of financial affairs, including income and expenses.  Consideration of the financial aspects of the relationship weighs strongly in favour of the existence of a long and enduring relationship at the time of the application and at the time of making this decision.

10. The Tribunal is satisfied that the applicant and sponsor have shared a home together as joint tenants on residential leases since their relationship began. They provide each other with care and support as necessary and have arranged their personal affairs with each other’s preferences and capabilities in mind.  For example, the sponsor appears to prefer not to be out in public and so the visa applicant does most of the shopping and also keeps in touch with the sponsor’s family. Their texts provide a picture of the relationship which could be expected in the circumstances they have described, and that long chain of interaction which has been provided is consistent with their evidence and demonstrates shared decision making and household task negotiation. The Tribunal considers that the evidence and informatin given about the nature of the household strongly suggests an ongoing and genuine relationship, both at the time of application and at time of decision.    

11. The Tribunal accepts the evidence given by the applicant and sponsor and considers that the persons who are important to each of the applicant and sponsor are aware of and support their relationship.  Due to the manner in which they restrict their social life given the sponsor’s desire to avoid it, consideration of this particular aspect  must be given moderate weight only – nonetheless, there is evidence that the applicant and sponsor have and continue to represent themselves as being in a committed and long term relationship to members of their friend group and families, and have done so since the inception of their relationship.  

12. In considering how the applicant and sponsor present themselves to government authorities, the evidence around the sponsor’s Centrelink notifications is somewhat perplexing.  Although the sponsor stated that she has been on and off income support for most of her life, she appeared genuinely confused when asked how she declared the visa applicant’s income to the Department, or what was expected of her in that respect since she had informed them of the relationship. Ultimately, the Tribunal considers that the sponsor’s interactions with Centrelink are a matter for her to attend to and in the circumstances of this case, are not an indicator that the relationship is not genuine. The sponsor appeared to consider that for many years the visa applicant was dependent on her income and unable to work so there was nothing to be declared to Centrelink. She appeared not to understand, even to date, the importance of keeping them informed of her relationship status. In the circumstances of this case, the Tribunal does not place much weight on the sponsor’s failure to inform Centrelink of her de facto relationship as an indicator that the relationship was not genuine. It does weigh slightly against them that the sponsor has not (or at least until recently, had not) declared the relationship for the purposes of the sponsor’s income support payments. However, on the other hand of course, the relationship has been disclosed to the another Federal Department - the Department of Home Affairs - since 2013 at least. 

13. The evidence suggests that the visa applicant and sponsor have been in a committed ongoing relationship since at least June 2012. Significant weight must be given to the length of time which has passed without any suggestion of separation (and despite significant personal stressors on the relationship) as an indicator that they have a mutual high level of commitment to each other and the relationship. The evidence reflects that they rely very heavily on each other for companionship and emotional support and that they see the relationship as an enduring and ongoing one.

14. The Tribunal has noted the applicant’s previous application for a protection visa and applications for ministerial intervention and accepts that the visa applicant has long held a desire to remain in Australia.  When he met the sponsor, he was in fact in Australia without a valid visa.  Nonetheless, he has been in the country since 2008 and it is not implausible that a young man in his position and with his personal qualities would meet and fall in love with the sponsor in that period. In the circumstances of this case, the Tribunal does not consider that the applicant’s migration application history should be given any significant weight against the genuineness of the relationship here under scrutiny.

15. The Tribunal is satisfied that the evidence given by the visa applicant and his sponsor reflects a genuine and continuing personal relationship in which they each are committed to and depend on the other in their day-to-day life. Their evidence reflects that they each have their own hopes and expectations for their future together, as well as a joint intention to continue their relationship. The Tribunal gives significant weight to the supporting evidence of the sponsor’s parents and Aunt in their statements and evidence. 

16. After considering all of the information and evidence before it, the Tribunal is satisfied that the visa applicant and sponsor have a mutual commitment to a shared life to the exclusion of all others; and that theirs is a genuine and continuing relationship.  The Tribunal is satisfied that they live together and have done throughout their relationship since 2012. There is no suggestion in this case that the applicants are related by family.  

17. On the basis of the above the Tribunal is satisfied that the requirements of s 5CB(2) are met at the time of the visa application and at the time of this decision. 

18. Therefore the applicant satisfies cl 820.211(2) and cl 820.221(1)(a). 

    Are the additional criteria for a de facto relationship met?

19. 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). 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).

20. In this case, at the time of application, the applicant and the sponsor were both at least 18 years old. The sponsor was aged [age] and the applicant was aged [age].

21. At the time of application, the applicant and sponsor provided evidence that they met in April 2012 and commenced a de facto relationship in June 2012. The visa application was lodged in December 2013.  Accordingly, the Tribunal is satisfied that the applicant had been in the de facto relationship for at least the 12 month period ending immediately before the date of the application.

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

23. 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

24. 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(2) of Schedule 2 to the Regulations

    ·cl 820.221(1)(a) of Schedule 2 to the Regulations

    ·reg 2.03A

    Anne Grant
    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).