Ali (Migration)

[2022] AATA 3856

Ali (Migration) [2022] AATA 3856 (1 November 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Muhammad Haider Ali

REPRESENTATIVE:  Mr Hendrik de Korte

CASE NUMBER:  1905381

HOME AFFAIRS REFERENCE(S):          BCC2018/2731887

MEMBER:Edward Howard

DATE:1 November 2022

PLACE OF DECISION:  Brisbane

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 of Schedule 2 to the Regulations

·reg 2.03A

Statement made on 01 November 2022 at 11:20am

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) – Subclass 820 (Partner) – genuine continuing relationship – registered civil partnership – financial, household and social aspects of relationship and nature of commitment – living separately while sponsor’s mother visiting and unaware of relationship – COVID travel restrictions prevent her departure – mother’s prejudice and parties’ plan to inform her when visa granted – applicant’s contribution to sponsor’s mortgage – evidence from applicant’s colleague/friend – length of relationship – 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, cl 820.211(2)(a), 820.221

CASES
Ally v MIAC [2008] FCAFC 49
Bretag v IRT [1991] FCA 582
He v MIBP [2017] FCAFC 206
Jayasinghe v MIMA [2006] FCA 1700
MIEA v Poche (1980) 4 ALD 139

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 21 July 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.

4. The applicant appeared before the Tribunal on 7 October 2022 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Hoa Ngoc Tram Nguyen and Mr Robert Thomas. The applicant was represented in relation to the review.

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

   BACKGROUND

6. The visa applicant is Muhammad Haider Ali, 34 years of age, a citizen of Pakistan. The sponsor is Hoa Ngoc Tram Nguyen, 35 years of age, an Australian citizen. The parties claim to have met in October 2014 when the visa applicant commenced living in shared accommodation where the sponsor was resident. The parties claim that they commenced a serious relationship in July 2015 and then moved in together in February 2018. The parties registered their relationship pursuant to the Civil Partnerships Act 2011 (Qld) on 15 June 2018.The visa applicant moved out of the residence in February 2020 when the sponsor’s mother moved in. The parties claim that they have continued to be in a de facto relationship, living between their respective residences.

   Issues And Law

7. There is a two stage process for onshore Partner visas. A visa applicant must first hold a provisional visa, enabling them to remain in Australia on a temporary basis, prior to the grant of a permanent visa. The grant of a permanent visa would generally depend on whether the relationship has continued for a period of at least two years. In this matter, the Tribunal is considering the first, temporary stage.

8. Where the Tribunal is considering a criterion that requires the definition of spouse or de facto partner to be met at the time of the visa application, the information supplied in relation to the reg 1.09A(3) matters may relate to circumstances after the time of application. In forming a view of the relationship at the time of application, the Tribunal must consider all relevant evidence, which may include evidence of events after the date of application insofar as it assists in the task of determining whether the visa applicant and the sponsor were in a partner relationship at the time of the application. Evidence of events after the visa application is relevant if it tends logically to show the existence or non-existence of facts relevant to the issue to be determined.[1] The Tribunal observes this to be a matter where the visa applicant submitted limited documentary evidence in support of his visa application to the Department of Home Affairs and then furnished the Tribunal with further evidence that was unavailable to the primary decision maker.

   [1] Ally v MIAC [2008] FCAFC 49 at [32]–[35]; Jayasinghe v MIMA [2006] FCA 1700 at [35], citing MIEA v Poche (1980) 4 ALD 139 at [24] per Deane J which held that evidence of subsequent events may be taken into account if it ‘tends to logically show the existence or non-existence of’ the relationship at that particular time; and see also Bretag v IRT [1991] FCA 582 at [13]–[15].

9. The issue in the present case is whether at the time of the visa application and the time of this decision, the visa applicant is the spouse or de facto partner of the sponsor.

   Whether the parties are in a spouse or de facto relationship

10. Clauses 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.

    Are the parties in a de facto relationship?

11. '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).

12. 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.

    Proof of De facto Relationship

13. The parties’ entered into a civil partnership and provided the Tribunal with a copy of their Civil Partnership Certificate dated 15 June 2018. On the evidence, the parties were in a de facto relationship that was valid for the purposes of the Act as required by s 5CB(2) at the time of the application for a visa.

    Are the other requirements for a de facto relationship met?

    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; any sharing of day-to-day household expenses.

14. The visa applicant is employed as a facilities manager by the Compass Group. This work is undertaken at the Bellbird Park State College. The visa applicant has been so employed for approximately 5 years. The evidence of the parties is that the visa applicant would be able to seek higher paying employment if he was granted a visa. The visa applicant studied a Bachelor of Business Administration, a four-year degree, in Pakistan. He then undertook a Master of Professional Accounting in Australia and a Certificate IV in Workplace Health and Safety. The Australian study was carried out at the University of Sunshine Coast. The sponsor is an Accountant and is currently employed in the education sector.

15. The evidence of the parties is that they pool their resources for their day-to-day household expenses. Their respective salaries are deposited into the joint account. The sponsor then transfers a certain amount to their savings account and apportions a weekly amount to the visa applicant for his personal expenses.  The visa applicant’s evidence was that he is very pleased with the process in place as he finds that he spends too much money if the sponsor does not ensure that savings are taken out. The parties’ evidence is that they currently have approximately $100,000 in joint savings.

16. The Sponsor purchased her own property in August 2016, and during his time at the residence, the visa applicant paid money towards the mortgage. The parties live in separate residences at the current time, as the parties have not disclosed to the sponsor’s mother the fact that they are in a relationship. The sponsor's mother is under the impression that the parties are good friends.

17. The parties continue to pool their savings in the joint account and save money together, even whilst living in separate residences, with the idea of purchasing their own property in the future. The documents provided to the Tribunal are consistent with the evidence of the parties that they continue to pool their resources, pay joint expenses, support each other financially and contribute to their joint savings. This continues to the current time, despite not having lived in the same residence continuously from about February 2020.

18. On the evidence, the Tribunal is satisfied that parties have a significant financial relationship, namely the accumulation of savings over many years together, towards the eventual purchase of a joint property asset. Whilst they do not have joint liabilities at this stage, the visa applicant continues to contribute financially to the relationship in respect of payment towards the sponsor’s mortgage and for savings purposes. The Tribunal is satisfied that the parties pool their financial resources in relation to their expenses and savings and is satisfied that they share many of the normal daily expenses. The Tribunal notes that the parties do not permanently live together and therefore there are some daily expenses which they do not share. The Tribunal weighs the financial aspects of the relationship in favour of the visa applicant.

    Nature of the household – including any joint responsibility for care and support of children; parties’ living arrangements; and any sharing of housework.

19. The evidence of the parties is that they commenced a relationship in about July 2015 whilst they were living at the same shared accommodation. In August 2016, the sponsor purchased her own residence and moved there whilst the visa applicant remained in a different residence. Despite this, the parties spent most of their time together and the visa applicant moved into the residence in February 2018. During their time living together, the parties shared the housework and regular household duties. The parties do not have care and support of children.

20. Since February 2020, the visa applicant has not lived in the sponsor’s residence. He rents a property at Coopers Plains and lives on his own. The parties’ relationship continues as the sponsor visits the visa applicant’s house and vice versa. The evidence of the parties is that they have saved approximately $100,000 and hope to be in a position to purchase a joint property for them to live in if the visa applicant is granted a visa.

21. The sponsor’s mother arrived just prior to Covid-19 pandemic and her initial plans were for only a short holiday. The visa applicant planned to vacate the house for that short period and then return when the sponsor’s mother left Australia. However, as the Covid-19 situation worsened and people were unable to travel internationally, the sponsor’s mother has remained in Australia.

22. The Tribunal places weight on the parties’ living arrangements, based on the evidence that they lived together in the shared accommodation from July 2015 until August 2016, and then again in the residence of the sponsor from February 2018 to February 2020. The Tribunal also places weight on the parties’ evidence that they continue to spend considerable time together, especially at the residence of the visa applicant. Based upon the evidence received, the Tribunal weighs the household aspects in favour of the Visa Applicant.

    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.

23. The Tribunal received evidence from Mr Robert Thomas, a work colleague of the visa applicant. Mr Thomas has worked with the visa applicant for approximately a year and a half and described their relationship as one of friends as well as work colleagues. Mr Thomas gave evidence that he attends the visa applicant’s house regularly. Mr Thomas’ evidence corroborates the ongoing relationship between the parties despite the fact they live in separate residences at the present time.

24. The parties have provided extensive evidence in support of the social aspects of their relationship. This evidence supports the claim that they represent themselves to other people as being in a committed de facto relationship. The evidence of the parties is that they socialise with friends and colleagues on a regular basis, and also enjoy spending time alone together.

25. The evidence of the sponsor is that her mother is prejudiced against people from Pakistan and India and hence, she and the visa applicant have been reluctant to inform her of their  relationship. The evidence of the sponsor is that if the visa applicant is successful in being granted a visa, the parties will be able to buy a house and start a life together and she will then inform her mother of the relationship. The evidence of the parties is that the visa applicant’s family are aware that they are in a relationship, however again, there is some prejudice as to people of different cultures emanating from his family.

26. The parties gave evidence that the issues regarding their respective families has caused them a great deal of stress and that the current living arrangements are less than satisfactory and that they would like to be able to be live together. However, their commitment to each other has seen the relationship endure during this period of time. In relation to those matters, the Tribunal has found the evidence of the parties to be honest, forthright and consistent. The parties presented to the Tribunal as truthful and credible witnesses.

27. The Tribunal is satisfied on the evidence that the parties represent themselves to other people as being in a long-term relationship and that they enjoy the opinion of others concerning the relationship and that they plan and undertake joint social activities. The Tribunal notes the respective concerns of the parties relating to certain prejudices held by their families and the impact that this has had on them disclosing their relationship within their families. The Tribunal weighs the social aspects of the relationship in favour of visa applicant.

    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.

28. The parties claim to have met in October 2014 when the visa applicant commenced living in shared accommodation where the sponsor was resident. The parties claim that they commenced a serious relationship in July 2015 and then moved in together in February 2018. The parties registered their relationship pursuant to the Civil Partnerships Act 2011 (Qld) on 15 June 2018.The visa applicant moved out of the residence in February 2020 when the sponsor’s mother moved in. The parties’ evidence is that that they have continued to be in a de facto relationship, spending considerable time together and living between their respective residences.

29. Since February 2020, the visa applicant has not lived in the sponsor’s residence. He rents a property at Coopers Plains and lives on his own. The parties’ relationship continues as the sponsor visits the visa applicant’s house and vice versa. The evidence of the parties is that they have saved approximately $100,000 and hope to be in a position to purchase a joint property for them to live in if the visa applicant is granted a visa.

30. The Tribunal received evidence from Mr Robert Thomas, a work colleague of the visa applicant. Mr Thomas gave evidence that he attends the visa applicant’s house regularly. Mr Thomas’ evidence corroborates the ongoing relationship between the parties despite the fact they live in separate residences at the present time. In relation to these matters, the Tribunal  found the evidence of Mr Thomas to be honest, forthright and consistent. Mr Thomas presented to the Tribunal as a truthful and credible witness.

31. The evidence of the sponsor is that her mother is prejudiced against people from Pakistan and India and hence, she and the visa applicant have been reluctant to inform her of their  relationship. The evidence of the parties is that if the visa applicant is successful in being granted a visa, they will be able to buy a house and start a life together and she will then inform her mother of the relationship. The evidence of the parties is that the visa applicant’s family are aware that they have been in a relationship, however again, there is some prejudice as to people of different cultures emanating from his family.

32. The sponsor’s mother arrived just prior to the Covid-19 pandemic and her initial plans were for only a short holiday. The visa applicant planned to vacate the house for that short period and then return when the sponsor’s mother left Australia. However, as the Covid-19 situation worsened and people were unable to travel internationally, the sponsor’s mother has remained in Australia.

33. The parties’ evidence is that the issues regarding their respective families has caused them a great deal of stress and that they would like to be able to be live together. However, their commitment to each other has seen the relationship endure during this period of time.

34. The evidence of the parties’ is that the sponsor is unable to have children of her own, however they have discussed adopting children in the future.

35. From the evidence provided, the Tribunal accepts that the parties have supported and cared for each other through difficult time, especially relating to the prejudices of their respective families and the impact of living in separate residences. The evidence supports a finding that the parties are in a genuine and continuing relationship, showing strong commitment to each other and clearly see the relationship as long-term. In particular, the Tribunal finds that the parties have now been in a relationship for more than seven years. The Tribunal weighs the nature of the commitment in favour of the visa applicant.

    Overall Conclusions

36. Having considered the evidence and for the reasons above, the Tribunal is satisfied that at the time of application, the parties had a mutual commitment to a shared life to the exclusion of all others; that the relationship between them was genuine and continuing; and that they lived together. The Tribunal is therefore satisfied the requirements of section 5CB of the act were met the time of the visa application.

37. The Tribunal is further satisfied that at the time of this decision the parties continue to have a mutual commitment to a shared life to the exclusion of all others and that the relationship between them has been and remains genuine and continuing. The Tribunal is also satisfied that whilst the parties do not live together, they do not live separately and apart on a permanent basis. The Tribunal is therefore satisfied the requirements of section 5CB(2) of the Act are met at the time of this decision.

1. The Tribunal is therefore satisfied that the parties relationship fulfilled the criteria contained in clause 820.211(2)(a) of the regulations at the time the visa application was made and at the time of this decision.

2. The Tribunal is satisfied that at the time of the application, the visa applicant was sponsored by the sponsor in accordance with cl.820.211(c), who lodged a sponsorship in support of the application. The Tribunal is satisfied that at the time of this decision the visa applicant continues to be sponsored by his sponsor. The Tribunal is further satisfied that at the time of this application, the visa applicant was the holder of a substantive visa in accordance with cl.820.211(d) and that he continues to meet that subclause at the time of this decision.

3. Pursuant to clause 820.221(1), in order to be eligible for the grant of a subclass 820 (UK) visa, the visa applicant must also continue to meet the requirements of clause 8.820.211(2) at the time of this decision. Having regard to the evidence before the Tribunal, the Tribunal is satisfied that the visa applicant continues to meet the requirements of clause 820.211(2), hence satisfying the criteria in clause 820.221.

4. Therefore, the Tribunal finds that the visa applicant meets the requirements of clauses 820.211(2) and 820.221.

   Are the additional criteria for a de facto relationship met?

5. 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 visa applicant and the sponsor were at least 18 years old.

6. The visa 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.

7. The visa applicant has provided evidence that the relationship is registered under the Civil Partnerships Act 2011 (Qld) as 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.

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

9. 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

10. 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 of Schedule 2 to the Regulations

    ·reg 2.03A

    Edward Howard
    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).