Agostin (Migration)

[2019] AATA 1108

Agostin (Migration) [2019] AATA 1108 (9 January 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Daniel Robert Agostin

CASE NUMBER:  1701690

HOME AFFAIRS REFERENCE(S):     BCC2015/1716728

MEMBER:Carmel Morfuni

DATE:9 January 2019

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.820.211of Schedule 2 to the Regulations

·cl.820.221 of Schedule 2 to the Regulations

·r.2.03A

Statement made on 09 January 2019 at 1:48pm

Carmel Morfuni
Member

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Spouse) – defacto relationship fell short by 2 months of the 12 month requirement – dependent child of relationship a compelling and compassionate circumstance to waive 12 month requirement – de facto definition – decision under review remitted

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

CASES
He v MIBP [2017] FCAFC 206
Graham v MIMIA [2003] FCA 1287
Srour v Minister for Immigration and Multicultural Affairs [2006] FCA 1228

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

2. The applicant applied for the visa on 16 June 2015 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 (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 because the applicant did not meet the definition of spouse or de facto partner under either Sections 5F or 5CB of the Act.

4. The applicant appeared before the Tribunal on 8 January 2019 to give evidence and present arguments. The sponsor also appeared to give evidence.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in the present case is whether the applicant meets the definition of spouse or de facto partner under either Sections 5F or 5CB of the Act and whether he meets that definition at the date of application and at the date of this decision as required by Clauses 820.211 and 820.221 of Schedule 2 of the Regulations.

   SPOUSE/DE FACTO (cl.820.211(2)(a), (3)(e), (4)(e), (5)(e), (6)(d), cl.820.221)

   Note: cl.820.211(3) and (4) have been repealed for visa applications made on or after 22 March 2014.

   Whether the parties are in a spouse or de facto relationship

7. 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 claimed to be the de facto partner of the sponsor who is an Australian citizen (Copy Birth Certificate provided).

   Are the parties in a de facto relationship?

8. The Parties are not married. '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).

9. In forming an opinion whether they are in a de facto relationship consideration must be given to all of the circumstances of the relationship. 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].

10. The sponsor filed an undated typed statement by email on 27 September 2017 (the sponsor’s statement) regarding the parties’ relationship and addressing the inception of the relationship and its development, parental responsibilities, living arrangements, household responsibilities and financial information.

11. In forming an opinion whether they are in a de facto relationship consideration must be given to all of the circumstances of the relationship and the whole of the evidence. 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.

12. Both the visa applicant and the sponsor gave similar evidence regarding the chronology and circumstances of the relationship. That evidence is summarised in the following paragraphs.

13. The oral and written evidence of the parties indicates that they met online in approximately 2012, first met in person on 9 May 2014, commenced living together in Australia in August 2014, and that the applicant, a citizen of the United States, lodged a Partner visa on 16 June 2015. In late May 2014, the applicant returned to the United States at which time the sponsor advised the applicant that she was pregnant. He then returned to Australia. The parties subsequently travelled to the United States together on 10 July 2014 to discuss the matter with the applicant’s parents and returned to Australia in early August 2014 in order that the applicant be there for the birth of the parties’ child. The child was born on 6 February 2015.

    Regulation 1.09A(3)

14. 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. The parties claim that they share a household and financially look after their child now aged 3, nearly 4. The applicant claimed in his application that he and the sponsor share the food bills and child expenses and split car insurance and rent. The sponsor in her undated statement indicates that some of the bills are in her name such as energy, her personal phone, the house Internet and personal car registration, some in the applicant’s name such as his personal phone, house insurance, car insurance and his personal car registration and some in joint names such as Yarra Valley water. The applicant pays the rent. He advised in oral evidence that his parents provided him with some support and he paid some expenses from his savings. The sponsor also works. The Tribunal accepts this evidence.

15. Nature of the household – including any joint responsibility for care and support of children; parties’ living arrangements; and any sharing of housework. The sponsor indicates in her written statement lodged in September 2017 that the parties both undertake and share parental responsibilities in relation to their child including spending time together as a family, sharing the duties of dropping her off and picking her up from the childcare centre which she attends two days a week and undertaking playing activities with her. In her statement, the sponsor states that the parties have different roles and whilst they have disagreements they get through them. The sponsor describes that the parties and their daughter live in a four-bedroom rental property, that they share the master bedroom and that their daughter occupies a bedroom and there is a spare bedroom.The parties also have a study where they use their computers. She describes that they do not socialise a great deal because of the age of the child but spend time in the family room. They spend some but not much time with friends. The sponsor set out the various household duties which the parties share some of which are allocated to each of them such as the sponsor undertaking washing and shopping duties and cleaning of cupboards, the applicant attending to rubbish collection, cleaning floors and attending to service of the motor vehicle. They shared tasks such as tidying, washing dishes some gardening duties feeding the cat and the like. The Tribunal accepts and gives weight to this evidence

16. 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.- The parties have declared their relationship to Centrelink and Medicare when the sponsor was pregnant and subsequently she stated that the significant members of the family are aware and accept them as a couple together with her close friends. Given that the parties are no longer in a defacto relationship the Tribunal accepts the evidence in relation to this aspect which has currently ceased.

17. 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. At the Tribunal hearing, the parties advised that their defacto relationship had ceased in November 2018, that they both care for the child together, legislitavely having joint care and responsibility for the child (under the Family Law Act 1995 – Tribunal addition) but that there is otherwise no formal Family Court order in place for the care and residence (custody) of the child. The oral evidence of the applicant was that parties had commenced their de facto relationship in August 2014 when they commenced living together (and not in May 2014 when they first met in person), and this was supported by the sponsor’s evidence at the hearing. The Applicant currently holds a Bridging Visa A which permits him to work but not to travel.

18. The written and oral evidence indicates that at the date of application, the parties made a commitment to each other largely due to their love for, commitment and caring of their child and assumed that the relationship would last. In the Tribunal’s view, this is evidenced by their travel to the United States during the sponsor’s pregnancy to discuss the matter with the child’s grandparents and the subsequent return of the applicant to be at the birth of their child, a daughter who was born on 2 February 2014. They provided a Victorian birth certificate indicating that they are the biological parents of the child. The Tribunal attaches significant weight to these aspects of the evidence and criteria both at the time of application and currently.

    The Tribunal now turns to whether at the date of this decision, any of the exceptions to the 12 month rule apply under r2.03A(3)(b) to an applicant for a defacto partner based visa which requires states the parties to a visa based on defacto grounds  must have been in a defacto relationship for at least 12 months before the date of application unless there are compelling and compassionate grounds (Tribunal italics) for the granting of the visa.

19. The circumstances must be both compelling and compassionate. The Tribunal is not confined to those circumstances at the time of application and may consider any circumstances up until the time of decision. Department’s policy states that this is a high threshold, but if the applicant has a dependent child of the relationship this may be a compelling and compassionate circumstance. The dependent child may or may not be been born of the relationship (Graham v MIMIA [2003] FCA 1287).

20. In the present case, the defacto relationship fell short by approximately 2months of the 12 month requirement. Taking into account the whole of the evidence before it up to the time of decision, the Tribunal may find  the dependent Australian born child of the relationship a compelling and compassionate circumstance to grant the visa. notwithstanding the 12 month requirement..

21. The exceptions to the 12 month rule are therefore whether or not there are compelling and compassionate circumstances for the grant of the visa. The oral and written evidence before the Tribunal indicates that notwithstanding that the parties have separated, they are dedicated and caring parents bound to and by their child. This was evidenced first, that when the sponsor became pregnant and told the applicant, they made arrangements to visit the United States to discuss the matter with the applicant’s parents to find a solution. Second, it was evidenced by the fact that the applicant returned to Australia to be here for the birth of the child subsequent to which, he made the current applications. The parties' evidence indicates that they both support the child, that one cares for the child whilst the other is working and this when they are both working the child is in childcare now being almost aged four. 

22. In answer to a question from the Tribunal, as to what would happen if the applicant was not granted his visas, the sponsor truthfully indicated that it would place her in an extremely difficult position but that she would, for the sake of the child and the child’s ability to have a relationship with her father and grandparents, consider whether or not to emigrate to the United States notwithstanding that she and the applicant themselves would be separated.

23. The Tribunal must consider this matter based on the whole of the evidence before it. On that basis, the Tribunal is satisfied that at the time of application and beyond the parties had a mutual commitment to a shared life to the exclusion of all others. The Tribunal is also satisfied that the relationship was genuine and continuing and that the parties lived together or did not live separately and apart on a permanent basis.

24. The Tribunal is also satisfied that the visa applicant and sponsor are not related by family and therefore the requirement of s.5CB(2)(d) is met.

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.

26. Therefore the applicant meets cl.820.211(2).

27. Based on the information before it the Tribunal is satisfied that at the time of application and until the withdrawal of the sponsorship, the review applicant was sponsored by Ms Mason who is over of 18 years old and is an Australian citizen. The Tribunal is also satisfied that the sponsor is not prohibited from being a sponsoring partner pursuant to cl. 820.211(2B), and that at the time of application the review applicant held a substantive US 462 visa.

28. The Tribunal is satisfied that both parties were at least 18 years old at the time of making the application. However, taking into consideration the evidence of the visa applicant and Ms Mason, the Tribunal is not satisfied that the relationship existed for 12 months prior to the making of the application.

29. The Tribunal has therefore considered whether there are compelling and compassionate circumstances for the grant the visa. In this case the applicant has a child. The evidence is that the applicant makes financial payments towards her care and has regular flexible time and access with her. Both parents are very cooperative and supportive of both parents’ ongoing involvement in the child’s life. The Tribunal is therefore satisfied that there are compelling and compassionate circumstances that support the grant of the visa.

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

    Time of decision

31. The evidence before the Tribunal is that the relationship ended at the latest in March 2016. The Tribunal also notes that the sponsorship application in this case was withdrawn by the sponsor on 25 September 2015. This means that at the time of decision the review applicant cannot meet the equivalent criteria cl.820.221(1)(a) because he is no longer the de facto partner of the sponsor. The sponsorship has not been formally withdrawn.

32. According to cl. 820.221(3) a relevant genuine partner relationship within the meaning of the Act must have existed prior to the relationship ceasing, such that the review applicant would otherwise have met the criteria in cl.820.221(2). This means that any relationship which has ceased must have been one which would have otherwise met the requirements of the relevant legislation. As the Tribunal has found that the applicant meets cl. 820.211(2) it will now consider whether the review applicant meets the requirements of cl.820.221(3) at the time of decision.

33. The Tribunal considers that the review applicant would continue to meet the requirements of subclause 820.211(2) except that the relationship has ceased. Based on the evidence before it, the Tribunal is satisfied that the review applicant has regular access to his child, and supports her financially. In Srour v Minister for Immigration and Multicultural Affairs [2006] FCA 1228 at [57], (when considering similar legislation) Moore J found that where a visa applicant and sponsor have a child in respect of whom Australian law operated, such as in this case, then the sponsor as the custodial parent, automatically has a formal maintenance obligation by operation of the Child Support (Assessment) Act 1989. Therefore the Tribunal is satisfied that the sponsor has a formal maintenance obligation in respect of the care of their child by operation of Australian law. Because the identity of the parents is not in dispute, the Tribunal finds, that the review applicant also meets cl.820.221(3)(b)(ii)(E).

34. 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

    The Tribunal remits the application for a Partner (Temporary) (Class UK) visa, with the direction that the applicant meets the following criteria for a Subclass 820 (Partner (Temporary)) visa:

    ·cl.820.211 of Schedule 2 to the Regulations

    ·cl.820.221 of Schedule 2 to the Regulations.

    ·r.2.03

    Carmel Morfuni
    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).