Arcilla (Migration)

[2020] AATA 83

Arcilla (Migration) [2020] AATA 83 (7 January 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Marissa Lizano Arcilla

CASE NUMBER:  1726289

HOME AFFAIRS REFERENCE(S):          BCC2017/526836

MEMBER:Grant Chapman

DATE:7 January 2020

PLACE OF DECISION:  Adelaide

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 of Schedule 2 to the Regulations

·cl.820.221 of Schedule 2 to the Regulations

·r.2.03A

Statement made on 07 January 2020 at 3:53pm

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – genuine de facto relationship – financial aspects – joint ownership of assets – pooling of financial resources – beneficiary of will – nature of household – living arrangements – social aspects – nature of commitment – provision of financial support – substantial knowledge of the other’s families – relationship registered – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5CB, 65
Migration Regulations 1994 (Cth), rr 1.09A, 2.03A; Schedule 2, cls 820.211, 820.221

CASES
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 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, Marissa Lizano Arcilla, applied for the visa on 6 February 2017 on the basis of her relationship with her sponsor, David Harold Hughes. 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(2)(a) because the evidence and information provided was insufficient to demonstrate a genuine de facto relationship between the applicant and her sponsor, as defined under section 5CB of the Migration Act.

4. The applicant appeared before the Tribunal on 21 June 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor.

5. The applicant was represented in relation to the review by her registered migration agent, Cyril Gabito from Gabito Lawyers, of Brooklyn Park, South Australia. The representative attended the Tribunal Hearing.

6. Both prior to and after the Tribunal Hearing, the applicant and sponsor provided to the Tribunal a substantial quantity of documents additional to those provided with their original application to the Department of Immigration and Border Protection. These included comprehensive sets of bank statements, records of overseas funds transfers, a submission on behalf of the applicant and sponsor from their agent dated 19 December 2018, Statutory Declarations from the applicant and sponsor and other relevant documents. The Tribunal notes that the original application of the applicant and sponsor to the Department was lodged without the assistance of an agent.

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

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The issue in the present case is whether the applicant and sponsor are in a genuine de facto relationship, as defined by section 5CB of the Migration Act.

2. In determining the applicant’s claims, the Tribunal must first make findings of fact on material matters in dispute. This may involve an assessment of credibility and in so doing, the Tribunal is aware of the need and importance of sensitivity to the circumstances and difficulties applicants may face before the Tribunal, related to their particular situation.

3. The applicant and sponsor rely on written submissions and supporting evidence provided to the Tribunal and previously to the Department, together with oral evidence which the applicant and sponsor gave to the Tribunal Hearing.

Whether the parties are in a spouse or de facto relationship

1. Relevantly to this matter, 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?

1. '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).

2. 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. Each of the specific matters contained in r.1.09A(3) are effectively questions which must be answered: He v MIBP [2017] FCAFC 206.

3. In examining the documentary evidence tendered and the oral evidence given by the applicant and sponsor at the Tribunal Hearing, the Tribunal has considered all aspects of the relationship, as described in paragraph 13 above.

4. The applicant lodged a valid application for a Partner (Temporary) (Class UK) (Subclass 820) and Partner (Residence) (Class BS) (Subclass 801) visa on 6 February 2017, which was refused on 13 October 2017.

5. As stated in paragraph 6 above, the Tribunal has benefited in reaching its decision from additional relevant documentation provided to it by the applicant and sponsor, which was not available to the Departmental delegate.

6. The overall consistency of these documents with the oral evidence provided at the Tribunal Hearing leads the Tribunal to accept the veracity of the evidence presented. The Tribunal found this evidence to be credible and persuasive in its consideration of all aspects of the relationship, with oral evidence presented without obfuscation or hesitation.

Financial aspects of the relationship

1. Joint ownership of assets: The applicant and sponsor told the Tribunal Hearing that the sponsor’s mobile retail ice cream business, which he had operated part-time since 1978 with two trucks and two drivers to assist, had been transferred into joint names as David Hughes and Marissa Arcilla trading as Tony Coney Ice Cream. They provided an Australian Securities and Investments Commission Business Registration Certificate showing Tony Coney Ice Cream as a business name registered in their joint names, together with a number of invoices billed to that entity from Norms America Wide Imports of Paralowie, South Australia, for supply of ice cream mix. They said also that they had purchased a 2003 Holden Astra in joint names in 2017 and provided a Registration Details Certificate showing them as joint owners. The Tribunal is satisfied that the applicant and sponsor have a modest level of joint ownership of assets.

2. Joint liabilities: The applicant and sponsor did not claim to share any joint liabilities nor is there any evidence before the Tribunal regarding joint liabilities.

3. Extent of pooling of financial resources: The applicant and sponsor provided to the Tribunal a complete set of the following bank statements: a Commonwealth Bank Smart Access account in the name of the applicant from 24 August 2017 to 30 June 2019; a Commonwealth Bank Complete Access account in the name of the sponsor from 1 January 2015 to 30 June 2019; a Commonwealth Bank GoalSaver account in the joint names of the applicant and sponsor from 14 November 2018 to 30 June 2019; an ANZ Platinum Visa credit card account in the name of the sponsor from 5 December 2014 to 8 July 2019; a BDO Unibank, Philippines, account in the name of the applicant from 5 August 2013 to 26 June 2019;  Forex World Pty Ltd invoices from 26 October 2011 to 27 May 2019 showing regular transfers of funds from the sponsor to the applicant’s Philippines bank account, totalling in excess of A$91,000 over that period.

4. The sponsor’s Complete Access account shows deposits deriving from his social security pension, cash deposits and some modest investment income. It shows transfers to the applicant’s Smart Access account, together with some cash withdrawals. The applicant’s Smart Access account shows regular deposits from the sponsor’s account and from 28 August 2018, deposits of her salary from Rockford Hotel. It shows regular ATM cash withdrawals. The sponsor’s credit card account, although initially showing payments which, it could reasonably be concluded, relate to business expenses, from the latter part of 2018, shows a range of expenses reasonably attributable to day-to-day living expenses. The Commonwealth Bank joint account shows monthly deposits of $200, being transfers from the sponsor. The sponsor said that cash from the ice cream business is used to pay the credit card account, which they had started using for day-to-day living expenses, rather than just business expenses, only in recent months. The applicant said that the sponsor began sending money to her in the Philippines in 2011. Since her arrival in Australia, he had continued to send money to her Philippines bank account to support her children. She said that a friend of hers in the Philippines had access to her account to withdraw money. She said that during her time living in Australia, her living expenses had been met by the sponsor, as it was only in the latter part of 2018 that she obtained employment and income. The applicant said that the principal purpose of the joint account was to save money for her intended wedding with the sponsor. The Tribunal is satisfied that the oral evidence given by the applicant and sponsor is consistent with information available in the financial documents. It finds that there has been pooling of financial resources to a significant extent.

5. Any legal obligations owed to the other party: The applicant told the Tribunal Hearing that since obtaining employment she had made a non-binding death benefit nomination in favour of the sponsor regarding her superannuation. The applicant provided to the Tribunal a copy of a Hostplus superannuation document confirming this claim.  She said that, in his Will, the sponsor had left her a life interest in the house which he owned debt free and in which they lived together. She said that she hadn’t made a Will because she hadn’t accumulated assets but that it was something she needed to do. When questioned regarding the life interest in the house contained in the sponsor’s Will, she said that this had been initiated by the sponsor without any request from her. The sponsor said that he had withdrawn his superannuation to pay off the mortgage on his house which he had left to the applicant. The sponsor provided copies of two Wills. One was executed on 3 October 2013, at an early stage of his relationship with the applicant, in which the applicant was a 20 per cent beneficiary of his estate, along with two other friends of the sponsor resident in the Philippines, while each of the sponsor’s three children from a previous marriage and his former wife were 10 per cent beneficiaries. This was superseded by a current Will executed on 13 June 2019 which gave the applicant a life interest in the sponsor’s Burstock Street, Elizabeth Park, South Australia, residence. With some minor exceptions, the Will provides for the balance of his estate to be divided equally between the applicant and each of his three children from the previous marriage. The Tribunal finds that the sponsor has substantial legal obligations in favour of the applicant.

6. Any sharing of day-to-day household expenses: The applicant told the Tribunal Hearing that the sponsor continues to meet most day-to-day household expenses, although since she has commenced work she does transfer some cash to him. The sponsor said that because the applicant is working, he usually does the shopping on Thursday mornings of each week and therefore continues to pay for the purchases. He said that occasionally the applicant joins him on the shopping expedition and contributes to its cost. The Tribunal is satisfied that there is some sharing of day-to-day household expenses.

7. Financial aspects conclusion: The Tribunal places substantial weight on the cumulative evidence in support of the financial aspects of the relationship between the applicant and sponsor as being one exhibiting a mutual commitment to a shared life together to the exclusion of all others, being a genuine and continuing relationship and that they are living together, or not separately and apart on a permanent basis.

The nature of the household

1. Any joint responsibility for the care and support of children: The sponsor has three adult children from a previous marriage. Neither the applicant nor sponsor claim to have any children from their relationship nor is there any evidence before the Tribunal of children from the relationship. However, the applicant has seven children, four from a previous marriage and three from a previous relationship, ranging in age from 9 to 26. Of these, the three youngest may still be regarded as a dependent. As documented in paragraph 20 above, the sponsor continues to provide significant financial support for these dependent children. Although the children continue to live in the Philippines for the time being, the Tribunal is satisfied that the applicant and sponsor take joint responsibility for their care and support.

2. The living arrangements of the applicant/sponsor: The sponsor owns a residence at Burstock Street, Elizabeth Park, South Australia, debt free in which he has lived for many years. The sponsor told the Tribunal Hearing that this was the reason why the utilities’ accounts relating to the property were in his name, rather than joint names. ‘The applicant and sponsor claim that during the applicant’s three visits to Australia on three month visas in 2013 and 2014, her two six months visits in 2015 – 2016 and 2016 – 2017 and since her return to Australia on 22 August 2017,  they have been living at this residence. This claim is confirmed by a Form 888 Statutory Declaration, dated 7 June 2019, by Jennifer Hughes, the sponsor’s former wife, which says that she sees them most weeks as she lives only five minutes away from them and that the applicant and sponsor have lived together for the last few years. The Tribunal notes also that the applicant’s and sponsor’s respective official Movement Records show that on 6 August 2015 the applicant and sponsor arrived in Australia on the same flight, after the sponsor had spent nearly two months off shore; the same on the 28 August 2016, after he had spent a month offshore; and the same on 22 August 2017, after he had spent some six weeks off shore. Given this return travel to Australia together, the Tribunal is satisfied that the applicant and sponsor spent their time together in the Philippines during the sponsor’s absence from Australia. On the evidence before it, the Tribunal is satisfied that the applicant and sponsor have lived together intermittently in Australia or the Philippines since March 2013 and permanently at Elizabeth Park since August 2017. The sponsor said that a friend, Rolf Retelsdorf, who he employs to drive one of his ice cream vans, rents a room for $100 per week, lives in the house and shares the kitchen and meals. The applicant said that she complains periodically to the sponsor about the lack of privacy they enjoy as a consequence of this. When questioned on this, the sponsor said that Rolf is happy with the arrangement, that the applicant is used to it but that it may change in the future if they get married.

3. Any sharing of responsibility for housework: The applicant told the Tribunal Hearing that she does the cooking because she doesn’t like the sponsor’s cooking but he washes the dishes. She said that she does general cleaning and washing, while they share the gardening duties in quite a large garden, where they grow Asian vegetables. The sponsor confirmed that the applicant does the cooking, saying that he does minimal cooking. He said that he makes the bed and does the vacuum cleaning while they share sweeping. He said that tenant Rolf helps him with the washing up and walks the dog. He said that the applicant cleans the ice cream vans and washes the house floors. He said that the house is located on a large block which has a double garage and large carport, as well as a substantial garden of fruit trees and vegetables, for which he does required digging work but the applicant does the other gardening work. A photograph was provided of the applicant working in the garden. The Tribunal is satisfied that there is some sharing of responsibility for housework between the applicant and sponsor.

4. Household aspects conclusion: The Tribunal gives substantial weight to the cumulative evidence presented regarding the nature of the household as being one which demonstrates the relationship between the applicant and sponsor as being a mutual commitment to a shared life together to the exclusion of all others, being a genuine and continuing relationship and that they living together, or not separately and apart on a permanent basis.

The social aspects of the relationship

1. Whether the persons represent themselves to other people as being in a de facto relationship with the each other: Form 888 Statutory Declarations from live-in tenant Rolf Retelsdorf and from former wife Jennifer Hughes, together with signed letters from the sponsor’s son Neil Hughes (dated 17 September 2017), the applicant’s son Junel, daughter Jesarine, daughter Erika and daughter-in-law Josel (all dated 5 August 2019), all attest to the applicant and sponsor being known as being in a relationship with each other. This was reinforced by numerous photographs of them as a couple sharing time with family and friends. The Tribunal is satisfied that these photographs were of genuine social situations and not “staged” with an ulterior motive.

2. The opinion of friends and acquaintances about the nature of the relationship: The documents to which reference is made in paragraph 29 above all expressed the view that the relationship the applicant and sponsor as genuine and continuing. The Form 888 from Rolf Retelsdorf states his belief that the relationship is genuine and has been ongoing since 2012 and that the couple seem to be very happy with each other. The Form 888 from Jennifer Hughes refers to the length of time the couple have lived together as evidence of a genuine and ongoing relationship. The letter from Neil Hughes refers to the happiness of his father when he is around the applicant and the happiness they bring to one another. Those from the applicant’s daughter-in-law and children refer variously to the couple’s “infinite love for each other,” the sponsor’s patience with and love for their mother, how they look forward to the applicant and sponsor visiting them in the Philippines as a couple and that their mother has finally met the person who will love her for life. The Tribunal is satisfied friends and acquaintances see the relationship as genuine and continuing.

3. Any basis on which the persons plan and undertake joint social activities: The applicant referred to concerts which the couple attend occasionally, where the sponsor does Elvis impersonations, as an example of shared social activity. However, she said they did not engage in much social activity because he’s busy overseeing the ice cream vans and she is working. The sponsor also referred to shared visits to the Elvis Fan Club and that they are involved in Neighbourhood Watch, attending meetings together about every six weeks, as well as getting together at least once a month with his family, including his former wife. In his written statement the sponsor referred to sharing happy times fishing and crabbing together on Largs jetty. The applicant referred also to their shared travel to different parts of the Philippines, while the sponsor described their shared travel within South Australia to places such as Kangaroo Island, the Flinders Ranges and Victor Harbor. They provided documented evidence in the form of domestic airline bookings in the Philippines and some documentation of their domestic travel in South Australia, together with photographs of some of these travels. They both said that they intended to travel to the Philippines again, in July 2019, after the Hearing.  The Tribunal is satisfied that the applicant and sponsor share a limited range of joint social activities.

1. Social aspects conclusion: The Tribunal gives moderate weight to the cumulative evidence presented regarding the nature of the social aspects of the relationship between the applicant and sponsor as being one which exhibits a mutual commitment to a shared life together to the exclusion of all others, being a genuine and continuing relationship and that they are living together or not separately and apart on a permanent basis.

The nature of the persons’ commitment to each other

1. The duration of the relationship: The applicant told the Tribunal Hearing that she first met the sponsor with a group of friends in an apartment in Manila, Philippines, in 2009 when he was visiting a previous girlfriend. She said that they met again in 2011 in similar circumstances but the sponsor couldn’t remember their previous meeting. The sponsor’s oral evidence was consistent with this description. He said that following his return to Australia they maintained contact through Internet online Messenger chatting and when he returned for his next visit to the Philippines in 2012, he stayed with the applicant. The applicant made three visits to him in Australia during 2013 and 2014, before he returned to spend time with her in the Philippines in mid-2015. He said that during that visit they travelled around the Philippines together, visiting Corregidor, Mindoro and Punta Sebarang. He said that for this trip he was accompanied by his friend John who “teamed up” with the applicant’s sister, Rose. The applicant told the Hearing that she travelled to Australia with the sponsor on his return to Australia in August 2015 and stayed with the sponsor until February 2016; that the sponsor had returned to the Philippines in 2016 and they returned to Australia together again in August 2016, where she stayed with the sponsor until February 2017; that the sponsor again spent time with her in the Philippines in mid-2017 and they returned to Australia together in August 2017, where they have continued living together. The official Movement Records of the applicant and sponsor satisfied the Tribunal as to the veracity of these claims. When the Tribunal asked the applicant about the development of the relationship with the sponsor she said it had not been rushed because she had rushed into previous relationships and been disappointed, including having experienced abuse during her first marriage. She said she wanted to plan this relationship properly to make sure of the sponsor’s commitment and had “pushed him away” until she was sure that he was not “playing” her. She said that the sponsor’s provision of financial support for her and her daughter, for which she had never asked, was an indication to her of the sponsor’s commitment, along with his regular conversations with her children. Under separate questioning by the Tribunal, the applicant and sponsor each demonstrated substantial knowledge of the other’s families. On the evidence before it, the Tribunal accepts that the applicant and sponsor first met in 2009, that they were in regular communication from 2011 and have been in a genuine relationship since August 2015. Hence, the Tribunal finds that the duration of the relationship has been a period of approximately four and a half years at the time of this Decision.

2. The length of time during which the persons have lived together: On the evidence before it, the Tribunal accepts that since late June 2012, a period of approximately 89 months, the applicant and sponsor have lived together either in Australia or the Philippines for accumulated periods of 55 months, including continuously in Australia since late August 2017.

3. The degree of companionship and emotional support the persons draw from each other: The careful and progressive commitment to the relationship described by the applicant, as recorded in paragraph 33 above, in the context of her description of her previous relationships, indicates to the Tribunal an aspect of emotional support derived by her from her relationship with the sponsor. She told the Tribunal Hearing that the sponsor treats her like a princess and is a kind person. One example she gave of the way in which the sponsor cares for her was her preference of full cream milk, compared with his preference for lite milk. She said that he always ensures that he gives her the preferred milk. The sponsor said that the applicant is honest and pleasant and is good to be with. He said that he had had previous Filipino girlfriends, including one he brought to Australia for three months but who had “ticked off” with someone else. He said that the applicant demonstrates to him that she has more time for him than did other women. The applicant said that the sponsor gives her confidence. The sponsor said that they talk to each other about day-to-day stuff, such as work events, their shopping needs, their lack of money and their wish to travel overseas together. The Tribunal is satisfied that the applicant and sponsor draw companionship and emotional support from each other.

4. Whether the persons see the relationship as a long-term one: When asked by the Tribunal about their plans for the future, the applicant said that they planned to get married, that she wanted to continue in her current job, that she wanted to start sharing their costs of living now that she had regular income and that they wanted to travel overseas periodically. She said that they were planning a trip to England and also to visit Graceland in the United States, consequent on the sponsor’s interest in Elvis Presley. They also plan to travel backwards and forwards to the Philippines, periodically. She said that although not yet married they had lived together as husband and wife for an extended period, including living with her children in the Philippines. The sponsor said that he was looking forward to the continuation of their current ideal situation and that, as he ages in the future, believes the applicant would care for him. Previously, the Tribunal had received a copy of a Federal Circuit Court of Australia Divorce Order, confirming the divorce, taking effect on 13 March 2019, of the applicant from Romy Funelas, whom she married in the Philippines on 29 April 1999. After the Hearing, in a submission from their agent dated 4 September 2019, the applicant and sponsor provided to the Tribunal a letter executed by both of them on 24 June 2019, appointing Gay Northcott, Marriage Celebrant, to perform their marriage ceremony and confirming that her fee had been paid in full, together with a letter from Gay Northcott, of the same date, confirming that the applicant and sponsor plan to be married on 16 August 2019. They provided also a copy of a Relationships Register Act 2016, South Australia, Relationship Certificate, dated 1 July 2019, registering their de facto relationship. The applicant and sponsor included also four photographs described as “Wedding Photographs of applicant and Mr Hughes.” The applicant and sponsor appeared to be dressed in wedding attire and one of the photographs shows the sponsor placing a ring on the applicant’s left-hand ring finger, while another shows them holding what appears to be a wedding certificate but which is too small in the photograph to be readable. Although there is no reference in the submission to the marriage, apart from the above photographs and Marriage Celebrant documents and the Tribunal has not received a copy of a Marriage Certificate, on the evidence before it, the Tribunal accepts that the applicant and sponsor have married on 16 August 2019 or some other unknown date.

5. Commitment conclusion: The Tribunal places substantial weight on the cumulative evidence presented regarding the nature of the persons’ commitment to each other as being one where the relationship between the applicant and review applicant exhibits a mutual commitment to a shared life together to the exclusion of all others, being a genuine and continuing relationship and that they have a long-term intent to live together.

Any other relevant considerations

1. Given the apparent recent but formally unconfirmed marriage of the applicant and sponsor, the Tribunal has considered and assessed the circumstances described in paragraphs 18 to 37 above in the context of the requirements of s.5F(2)(a) to (d), which defines ‘spouse’ in the Migration Act under provisions almost identical to those defining ‘de facto partner’ in s.5CB of the Act, as well as considering them under s. 5CB

Summary

1. In summary, the Tribunal concludes that at the time of the visa application and at the time of this Decision, the applicant and sponsor have demonstrated a pooling of financial resources. They have lived together and shared household duties. They have interacted with each other  for some eight and a half years and have been in a committed relationship for at least four and a half years. They provide companionship and emotional support for each other and have demonstrated to the Tribunal continuing plans for their future together. They are not related by family.

Overall conclusions

1. For the above reasons, having carefully considered each of the prescribed factors under s.5CB(2) (a) to (d), concurrently with those of s.5F(2)(a) to (d), the Tribunal is satisfied that, at the time of visa application and at the time of this Decision, the visa applicant and her sponsor were in a genuine and continuing relationship and had a mutual commitment to a shared life together to the exclusion of all others and live together, or not separately and apart on a permanent basis.

2. Given these findings, the Tribunal is satisfied that the requirements of s.5CB(2), or in the alternative, s. 5F(2), are met at the time the visa application was made and at the time of this Decision .

3. The Tribunal is satisfied that the applicant and sponsor are not related to each other by family.

4. The Tribunal is satisfied that the applicant holds a substantive visa

Are the additional criteria for a de facto relationship met?

1. Persons claiming to be in a de facto relationship for a partner visa must also meet the additional criteria in r.2.03A. Both members of the couple must be at least 18 years old: r.2.03A(2). In this case, at the time of application, the applicant and the sponsor were at least 18 years old.

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: r.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.

3. The applicant has provided evidence that the relationship is registered under the a Relationships Register Act 2016, South Australia, as a kind of relationship prescribed in the Acts Interpretation (Registered Relationships) Regulations 2008: r.2.03A(5). Accordingly, the 12 month requirement does not apply.

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

5. Therefore, the visa applicant meets cl. 820.211(2) and 820.221(1)(a)

6. 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

1. 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

   Grant Chapman
   Senior 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).

1. 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.

2. 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).