Amritpal (Migration)

[2017] AATA 933

Amritpal (Migration) [2017] AATA 933 (5 June 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr  Amritpal

CASE NUMBER:  1601053

DIBP REFERENCE(S):  CLF2012/91862

MEMBER:Fiona Meagher

DATE:5 June 2017

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal remits the application for a Partner (Residence) (Class BS) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 801 (Partner) visa:

·cl.801.211 of Schedule 2 to the Regulations.

·cl.801.221 of Schedule 2 to the Regulations.

·r.2.03A

Statement made on 05 June 2017 at 3:11pm

CATCHWORDS

Migration – Partner (Residence) (Class BS) visa – Subclass 801 (Spouse) – Genuine and continuing partner relationship – Joint travel plans – Pooling of financial resources – Extensive socialising with family and friends – Household routines – Emotional support and companionship – Plans to commence a family

LEGISLATION

Migration Act 1958, ss 5CB, 65

Migration Regulation 1994, Schedule 2, cl 801.211, r 1.09A, r 2.03A

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 25 January 2016 to refuse to grant the applicant a Partner (Residence) (Class BS) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 9 May 2012 on the basis of his relationship with his sponsor. At that time, Class BS contained only one subclass: Subclass 801 (Partner). The criteria for the grant of this visa are set out in Part 801 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. Relevantly to this matter the primary criteria include cl.801. 221.

3. The delegate refused to grant the visa on the basis that the applicant did not satisfy cl.801.221 delegate was not satisfied the applicant and sponsor were and are in a genuine relationship. A copy of the delegate’s decision was provided with the application for review.

4. The applicant appeared before the Tribunal on 1 March 2017 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Ashleigh Menzies (the sponsor), Mr Mark William Menzies (the sponsor’s father), Ms Susan Ann Matthews (the sponsor’s mother), and Mrs Mohrinder Pal Singh (the applicant’s mother).

5. The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.

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 the applicant is the de facto partner of the sponsor.

   Whether the parties are in a spouse or de facto relationship

8. Relevantly to this matter, cl.801.221(2)(c) requires that at the time of this decision, the applicant is the spouse or de facto partner of the sponsoring partner, who must be an Australian citizen or Australian permanent resident or an eligible New Zealand citizen who was specified in the Subclass 820 visa application as the spouse or de facto partner of the applicant. In the present case the applicant claims to be the de facto partner of the sponsor who is an Australian citizen and was identified in the related Subclass 820 visa application. On the evidence before it, the Tribunal is satisfied that the sponsor is the ‘sponsoring partner’ of the applicant.

   Are the parties in a de facto relationship?

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

10. In forming an opinion whether they are in a de facto relationship consideration must be given to all of the circumstances of the relationship. This includes evidence of the financial and social aspects and the nature of the parties’ household and their commitment to each other as set out in r.1.09A(3) which is attached to this decision.

11. As to the financial aspects of the relationship, the Tribunal heard evidence from the applicant (consistent with that of the sponsor) that he currently works as a cab driver, although he previously worked as a chef. The sponsor works as an Human resources officer for Caterpillar (she has recently been promoted), and is also studying human resources. The parties each have separate bank accounts, and they also have a joint account into which they transfer money manually for holidays, Netflix and Go Via. The parties are currently saving up for a ring and have plans which include travel – to visit the applicant’s parents in India, visit the applicant’s brother in Italy and have a white Christmas. The parties pay the rent alternately, and are saving up for a wedding in Australia and one in India.

12. The Tribunal sighted documentation from the Commonwealth Bank (both historical and current), Suncor insurance, utilities bills, superannuation documentation, and tenancy agreements which support that the parties pool their financial resources, share day-to-day household expenses and are planning for a future together from a financial perspective.

13. As to the nature of the household, the Tribunal heard consistent evidence from the parties that they both cook – the applicant cooks curries. The sponsor does the washing as she does not think the applicant washes carefully enough (in terms of the colours and the clothes shrinking). The parties share the cleaning – the sponsor cleans the bathroom and the applicant does the rest, and the applicant puts the bins out.

14. The applicant works from about 4 to 4:30 AM to 2 to 2:30 PM Monday to Friday. He used to work weekends as well, but no longer does so because he was not seeing enough of the sponsor. The sponsor works from about 8 AM to 6 PM Monday to Friday. The Tribunal is satisfied that the parties live together and share the housework.

15. In terms of the social aspects of the relationship, the Tribunal heard that the parties socialise extensively with the applicant’s family, including extended family, and friends. They have travelled together, including to Mackay for Christmas 2016 with the sponsor’s Uncle Mal, and Tasmania for a holiday.

16. The Tribunal has sighted numerous photographs of the parties alone together and with others, as well is invitations addressed to the couple jointly and travel documents in their joint names.

17. As well, the Tribunal heard evidence from the sponsor’s parents, with whom they lived for one a half years, earlier in their relationship. The sponsor’s father gave evidence that he had known the applicant for 6+ years. He said that the parties met when they worked together (which was consistent with the parties evidence), and that they had moved in together in Oxley for about two years, then lived with him and his wife for 1.5 years and then moved back out together to Durack. Mr Menzies (the sponsor’s father) said that the parties had been on many holidays with them (that is himself and his wife), and that the applicant knew both sides of the sponsor’s family well. He said that he considers the applicant to be part of the family and he hopes they get married. He said that the applicant is a very hard worker, and that he is happy for his daughter as the parties get on well together. The sponsor’s mother gave similar evidence. The Tribunal also spoke to the applicant’s mother who confirmed that she was aware of the relationship and that the applicant’s family approved of it.

18. The Tribunal finds that the parties represent themselves to others as being in a de facto relationship with each other, are regarded as such by family and friends, and organise and undertake joint activities together.

19. The nature of the persons’ commitment to each other has been demonstrated by the length of the relationship – they met in 2010 and committed to a de facto relationship in 2011. They support each other in terms of stress, for example the applicant told the Tribunal about the grief suffered by the sponsor and her family related to the recent passing of Uncle Rodney. He supported her in relation to that and each of the parties support the other. They have plans for the future which include buying a house, travelling and starting a family. They see the relationship as long term. The Tribunal is satisfied that the parties drive companionship and emotional support from each other.

20. The Tribunal is satisfied that the parties are not related by family.

21. The Tribunal has also considered the concerns of the delegate regarding the departmental site visit to the applicant’s parents’ village. The Tribunal is satisfied that the applicant’s parents were taken aback by the departmental officers approach and confused about which of their’s sons they were alluding to. Further, the Tribunal has had regard to the site visit as referred to in the delegate’s decision, but considers the weight of evidence favours that the parties are in a genuine and continuing relationship.

22. The Tribunal had regard to the s.375A certificate. In this case the reason why the disclosure would be contrary to the public interest stated to be that the information contains departmental internal methodology. The protected information does not, the Tribunal’s view, contain information relating to departmental internal methodology, and does not contain sufficient detail which identifies the basis of public interest immunity.

23. The Tribunal therefore decided that the s.375A certificate was not valid because the reason provided did not clearly explain my disclosure would be contrary to public interest. The Tribunal informed the applicant of the existence of the s.375A certificate and of its determination that the certificate was not valid. The Tribunal told the applicant that the information covered under the s.375A certificate was information already contained in the delegate’s decision, and which had already been discussed with him and the sponsor.

24. The Tribunal is therefore satisfied that the parties are in a genuine and continuing de facto relationship, that they have a mutual commitment to one another to the exclusion of others, and that they live together or not separately and apart on a permanent basis.

25. On the basis of the above the Tribunal is satisfied that the requirements of s.5CB(2) are met at the time of decision. Therefore, the applicant meets cl.801.221(2)(c).

    Are the additional criteria for a de facto relationship met?

26. Persons claiming to be in a de facto relationship for a partner visa must also meet the additional criteria in r.2.03A. These are: that the couple are both at least 18 years of age; and with limited exceptions, that the visa applicant has been in the de facto relationship for at least the period of 12 months ending immediately before the date of the application, unless he or she can establish compelling and compassionate circumstances for the grant of the visa. The requirement that the relationship existed for 12 months prior to the application does not apply in certain circumstances where the sponsor is or was a humanitarian visa holder, or for applications made on or after 9 November 2009, where the de facto relationship has been registered under a relevant State or Territory law: r.2.03(4), (5).

27. The Tribunal is satisfied that at the time of the making of the application for the visa both parties were at least 18 years old, and that the relationship had existed for at least 12 months (since February 2011) prior to the making of the application for the visa in May 2012.

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

29. 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 801 visa.

    DECISION

30. The Tribunal remits the application for a Partner (Residence) (Class BS) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 801 (Partner) visa:

    ·cl.801.211 of Schedule 2 to the Regulations.

    ·cl.801.221 of Schedule 2 to the Regulations.]

    ·r.2.03A

    Fiona Meagher
    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).