Allcock (Migration)

[2023] AATA 240

Allcock (Migration) [2023] AATA 240 (24 January 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Lynne Susan Allcock

VISA APPLICANT:  Mr Sylvester Bellot

REPRESENTATIVE:  Mr John Kotsifas (MARN: 0323893)

CASE NUMBER:  1834334

DIBP REFERENCE(S):  BCC2017/2494283

MEMBER:Cheryl Cartwright

DATE:24 January 2023

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Partner (Provisional) (Class UF) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 309 (Partner (Provisional)) visa:

·cl 309.211 of Schedule 2 to the Regulations

·cl 309.221 of Schedule 2 to the Regulations

·r 2.03A

Statement made on 24 January 2023 at 4:00pm

CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – not in de facto relationship for 12 months when application made – financial, household and social aspects of relationship and nature of commitment – length of relationship and supporting statements – relationship registered under relevant state law – 12-month requirement does not apply – 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 309.211(2), 309.221

CASE
He v MIBP [2017] FCAFC 206

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 on 14 November 2018 to refuse to grant the visa applicant a Partner (Provisional) (Class UF) visa under s 65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 13 July 2017 on the basis of his relationship with his sponsor, the review applicant. At that time, Class UF contained only one subclass: Subclass 309 (Partner (Provisional). The criteria for the grant of this visa are set out in Part 309 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 309.211(2) because the parties had not been in a de facto relationship for at least 12 months prior to lodging the application.

4. The review applicant appeared before the Tribunal on 24 January 2023 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Sylvester Bellot, the visa applicant, Ms Rebecca Baker, a sister of the review applicant, and Ms Melissa Spring, a friend of the review applicant.

5. The review applicant was represented in relation to the review.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is whether, at the time of application on 13 July 2017, the review applicant and the visa applicant were in a genuine de facto relationship for the purposes of the Act.

8. In deciding this matter, the Tribunal has also had regard to evidence of events subsequent to the date of the visa application. In the circumstances of this case, the Tribunal considers that it is appropriate to make findings about cl 309.221 (a time of decision criterion) as well.

   Background

9. The parties met in April 2012 when the review applicant was on holiday in Dominica. She delayed her scheduled departure and stayed on in Dominica, to be with the visa applicant and meet his family.

10. The parties remained in contact and the visa applicant visited Australia in January 2013 and lived with the review applicant for three months. During that time the parties travelled in Australia, including to Tasmania to attend a family wedding.

11. The review applicant provided financial support for the visa applicant for household expenses, his mother’s funeral and to help him rebuild his house after it was destroyed in a hurricane.

12. The review applicant returned to Dominica in March 2016 and in May 2017 lived with the visa applicant for six weeks each visit. She returned in 2018 and in 2022 and lived with him again for two months each visit.

13. The review applicant has met the visa applicant’s family, including his two sons from a previous relationship, and the visa applicant has met some of the review applicant’s family – in Australia, and during the review applicant’s visit to Dominica in 2022, when her family travelled there from the US.

14. The visa applicant was born in Domenica on 26 January 1973. The review applicant was born in the UK on 2 March 1959. The parties are not related by family.

    Whether the parties are in a spouse or de facto relationship

15. Clauses 309.211(2) and 309.221 require that at the time the visa application was made, and at the time of this decision the visa 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 visa applicant claims to be the de facto partner of the review applicant who is an Australian citizen. Copies of the review applicant’s passport and citizenship certificate are on the Department’s file.

    Are the parties in a de facto relationship?

16. ‘De facto partner’ is defined in s 5CB of the Act, which provides that a person is in a de facto relationship with another person to whom they are not married if they have a mutual commitment to a shared life to the exclusion of all others, the relationship is genuine and continuing, the couple live together, or do not live separately and apart on a permanent basis, and the couple are not related by family: s 5CB(2).

17. 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 visa applicant’s and review applicant’s household and their commitment to each other 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) is effectively a question which must be answered: He v MIBP [2017] FCAFC 206.

    The financial aspects of the relationship

18. Any joint ownership of real estate or other major assets, any joint liabilities, the extent of any pooling of financial resources, whether one person in the relationship owes any legal obligation in respect of the other and the basis of any sharing of day-to-day household expenses are relevant factors to consider when assessing the financial aspects of the relationship.

19. There is no evidence before the Tribunal that the parties jointly owned real estate or other major assets or have any joint liabilities or that one person in the relationship owes any legal obligation in respect of the other. The review applicant owns her home in Parkdale, Victoria. The visa applicant owns his home in Dominica.

20. The review applicant gave evidence to the Tribunal that she had provided financial transfers to the visa applicant during the time since they met in 2012. The review applicant told the Tribunal hearing on 24 January 2023 that these payments were usually for general household expenses because it was difficult for the visa applicant to find work in Dominica.

21. In independent and consistent statements to the Tribunal hearing, the parties stated that the review applicant pays for most expenditure when they are sharing a household.

22. The review applicant told the Tribunal hearing that, when the parties lived together, they went shopping together and made expenditure decisions jointly. She also stated that the visa applicant is determined to pay back the funds she has provided to him.

23. The Tribunal notes the lack of evidence of pooling of financial resources provided to the Department at the time of application and gives little weight to this lack of evidence.

24. The Tribunal gives great weight to the evidence provided to the hearing and is satisfied that the parties pool resources as much as possible and plan to pool financial resources as a couple in the future.

    Nature of the household

25. Any joint responsibility for the care and support of children, the living arrangements of the persons and any sharing of the responsibility for housework are relevant matters to be considered when assessing the nature of the household.

26. There is no evidence before the Tribunal that the applicant and the sponsor have or had any children together. The visa applicant has two children from a previous relationship and review applicant met the children when they were teenagers. The visa applicant told the hearing that his children like and respect the review applicant. The visa applicant’s children now live in the US.

27. In independent and consistent evidence to the hearing the parties stated that, when the visa applicant lived in Australia for three months with the review applicant, he would do household chores and cooking while the review applicant was at work. When they live together in Dominica, they share cooking and chores.

28. The Tribunal notes the lack of evidence regarding the nature of the household provided at the time of application and gives little weight to this lack of evidence.

29. The Tribunal gives great weight to the evidence provided to the hearing that the parties share household responsibilities when living together and intend to share household responsibilities in the future as a couple.

    The social aspects of the relationship  

30. Whether the persons represent themselves to other people as being in a de facto relationship, the opinion of the persons’ friends and acquaintances about the nature of the relationship and any basis on which the persons plan and undertake joint social activities are relevant matters to be considered in determining the social aspects of the relationship.

31. The parties provided a number of photographs of them undertaking social activities.

32. In independent and consistent evidence to the hearing the parties stated that, when the review applicant is in Dominica, the parties visit nearby villages and socialise in local bars.

33. In evidence to the hearing by Ms Melissa Spring, a friend who has known the review applicant for 16 years, Ms Spring stated that, when the visa applicant was in Australia for three months, the parties attended many functions as a couple.

34. In evidence to the hearing by Ms Rebecca Baker, a sister of the review applicant, Ms Baker stated that she and her family had spent time with the parties in the review applicant’s home and had travelled with the parties for a family wedding in Tasmania where the visa applicant met many of the review applicant’s family.

35. In a statement dated 15 November 2022 provided to the Tribunal by Lawrence Ronny Bellot, the visa applicant’s brother, Mr Lawrence Bellot stated that he had met with the parties as a couple each time the review applicant had stayed with the visa applicant in Dominica.

36. The Tribunal notes the evidence regarding the social aspects of the relationship that was provided at the time of application and gives some weight to this evidence

37. The Tribunal gives great weight to the statement by Mr Lawrence Bellot, and to the evidence provided to the tribunal by the parties, as well as by Ms Spring and Ms Baker, and is satisfied that the parties present as a couple to family and friends.

    The nature of the persons’ commitment to each other

38. The duration of the relationship, the length of time during which the persons have lived together, the degree of companionship and emotional support that the persons draw from each other, and whether the persons see their relationship as long-term are all aspects to be considered in determining the nature of the persons’ commitment to each other.

39. The Tribunal notes that the parties met in 2012, the visa applicant has visited Australia for three months, the review applicant has visited Dominica for extended holidays four times, living with the visa applicant, and the parties have remained in touch regularly when they have not been living together. The Tribunal gives great weight to this length of time.

40. In 2016 the parties exchanged rings as a sign of their commitment and on 21 November 2022 they formally registered their relationship in Victoria under the Relationships Act 2008.

41. The review applicant’s friend, Ms Spring, told the hearing that she was present in 2012 when the parties first met and she could see “the connection they formed”. She observed the delight experienced by the review applicant when the parties exchanged rings.

42. The review applicant’s sister, Ms Baker, told the hearing that the parties’ commitment to each other is real and it has been “permanent since 2012”.

43. The review applicant told the hearing that the parties’ plan was for the visa applicant to work in Australia as a labourer or a gardener or a fisher and they would maintain contact with Dominica and visit often because of the lifestyle and their connections with the country.

44. The Tribunal notes that the delegate found that there were no compelling or compassionate reasons to waive the 12-month de facto requirement at the time of application.

45. The Tribunal gives great weight to the evidence provided to it and is satisfied that, at the time of this decision, the parties are in a genuine de facto relationship and also notes that the relationship has been registered.

    Are the additional criteria for a de facto relationship met?

46. 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.

47. 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. As mentioned above, the parties formally registered their relationship on 21 November 2022.

48. Given all the information provided to it, the Tribunal is satisfied that the applicant meets reg 2.03A.

    Conclusion

49. As stated above, the Tribunal is satisfied that, at the time of application and at the time of this decision the parties were and are in a valid de facto relationship as required by s 5CB of the Act.

50. After considering all the evidence before it and for the reasons given with respect to the reg 1.15A(3) matters, the Tribunal is satisfied that, at the time of application on 13 July 2017, and at the time of this decision the parties:

    ·had and have a mutual commitment to a shared life as de facto partners to the exclusion of all others, as required by s 5CB(2)(a) of the Act;

    ·had and have a genuine and continuing relationship, as required by s 5CB(2)(b) of the Act;

    ·live and lived together as required by s 5CB(2)(c) of the Act; and

    ·are not related by family, as required by s 5CB(2)(d) of the Act.

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

52. Given these findings, the Tribunal is satisfied that, at the time of the visa application and at the time of this decision, the parties were and are in a de facto relationship, therefore, the applicant meets cls 309.211 and 309.221.

53. 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 309 visa.

    decision

54. The Tribunal remits the application for a Partner (Provisional) (Class UF) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 309 (Partner (Provisional)) visa:

    ·cl 309.211 of Schedule 2 to the Regulations

    ·cl 309.221 of Schedule 2 to the Regulations

    ·r 2.03A

    Cheryl Cartwright
    Member

    
    
    

    Attachment  -  Extract from Migration Regulations 1994

    1.09ADe 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).