Barnes (Migration)

[2022] AATA 2942

Barnes (Migration) [2022] AATA 2942 (17 May 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Wayne Rockley Barnes

VISA APPLICANT:  Ms Ying Wang

REPRESENTATIVE:  Mr Wang Xiao (MARN: 1466166)

CASE NUMBER:  1826084

DIBP REFERENCE(S):  BCC2017/1983864

MEMBER:Russell Matheson

DATE:17 May 2022

PLACE OF DECISION:  Sydney

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(2) of Schedule 2 to the Regulations.

·cl.309.221 of Schedule 2 to the Regulations.

·r.2.03A.

Statement made on 17 May 2022 at 10:10am

CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – genuine de facto relationship – financial aspects – nature of the household – social aspects – nature of the commitment – additional criteria for a de facto relationship – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5CB, 65
Migration Regulations 1994 (Cth), rr 1.09A, 2.03A; Schedule 2, cls 309.211, 309.221

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 on 20 July 2018 to refuse to grant the visa applicant a Partner (Provisional) (Class UF) visa under s.65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicant (the applicant) applied for the visa on 5 June 2017 on the basis of her relationship with her 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 (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.309. 211(2) because the delegate was not satisfied the applicant was the de facto partner of the sponsor. The applicant seeks review of the delegate’s decision.  

4. The review applicant (the sponsor) appeared before the Tribunal on 6 April 2022 to give evidence and present arguments. The Tribunal also received oral evidence from three witnesses Mr Brian Wall (sponsor’s friend) , Mr Xin Wang (the applicant’s son) and the 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.

   Background

7. The sponsor first met the applicant (Ms Ying Wang) in Sydney, NSW in early February 2015. After a period of dating, the parties’ relationship developed rapidly, and they eventually moved in and lived together in May 2015.

8. The parties registered their relationship in Sydney on 21 March 2016. A copy of the certificate (number 245978/2016) was provided to the Tribunal.

9. The applicant departed Australia on 4 May 2017 due to the refusal of her onshore partner visa application (not satisfying the Schedule 3 requirement). The applicant has not returned to Australia. The parties lodged the application for a Subclass 309 (Partner) (Provisional)) visa in June 2017. 

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in the present case is the same determinative issue on which the visa was refused; that is, the Tribunal must be satisfied that the applicant and sponsor are, as claimed, in a genuine de facto relationship (as defined in s.5CB of the Act), giving consideration to the matters in r.1.09(3) of the Regulations.

11. The Tribunal has before it the Department of Home Affairs (the Department) file relating to the applicant; its own file; and a copy of the Department’s decision provided by the applicant to the Tribunal.

12. The evidence the parties provided at the Tribunal hearing is recorded throughout this decision record.

    Whether the parties are in a spouse or de facto relationship

13. 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 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 Australian citizen.

    Are the parties in a de facto relationship?

14. ‘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).

15. 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 applicant’s and sponsor’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) are effectively questions which must be answered: He v MIBP [2017] FCAFC 206.

    Financial aspects

16. The Tribunal has considered the financial aspects of the relationship including any joint ownership of real estate or major assets, any joint liabilities, the extent of any pooling or sharing of financial resources, especially in relation to major financial commitments, whether any person in the relationship owes any legal obligation in respect of the other, and the basis of any sharing of daily household expenses.

17. The applicant and sponsor provided evidence of opening a joint ANZ account in December 2015 and operating their own individual accounts in Australia and China. The parties provided ANZ bank statements for the period 29 December 2015 to 29 June 2017. The parties claim to have deposited cash into the account for their day-to-day living expenses and payment of utility bills and other household bills. The bank statements show limited transactions indicating purchases of daily living products and payment of household bills. The Tribunal places little probative value on the bank statements provided as strong evidence of the parties sharing and pooling their financial resources as the statements generally show cash deposits and withdrawals from the joint bank account. There is limited evidence before the Tribunal that demonstrates the parties sharing and pooling financial resources and contributing to household expenses. The applicant gave evidence that she was unable to work in Australia due to her visa conditions and utilised her own savings and cash. The parties claim to have shared and pooled their financial resources when living together in Australia and when the sponsor visited the applicant in China. The Tribunal places limited weight on the documentation presented as convincing evidence of the parties sharing or pooling their financial resources given that they had been in a  registered de facto relationship since March 2016.

18. The applicant and sponsor gave evidence that they are both receiving a pension and intend to share their financial resources when reunited in Australia. The applicant and sponsor had a sound knowledge of each other’s current financial resources and situation. The Tribunal found the parties’ oral evidence at the hearing genuine and persuasive regarding their future intentions and financial resources.

19. The Tribunal accepts there is a degree of difficulty in establishing and sharing financial resources when the sponsor and applicant are currently living in separate countries.

20. There is no evidence before the Tribunal that the parties have any joint ownership of real estate, major assets, joint liabilities or any one person in the relationship owes any legal obligation in respect of the other. The applicant has provided limited additional information to the Tribunal regarding the financial aspects of the parties’ relationship in relation to pooling and sharing of financial resources and sharing of daily living expenses. The Tribunal accepts that the parties are prepared to share their financial resources and any ongoing and future financial responsibilities.

21. The Tribunal places limited weight on the financial aspects of the relationship.

    Nature of the household

22. The Tribunal has considered the nature of the household, including any joint responsibility for the care and support of children, if any, the living arrangements of the parties and the sharing of the responsibility for housework.

23. The sponsor and applicant provided broadly consistent and detailed oral evidence of their activities and living arrangements when the sponsor visited the applicant in China and of the sharing of household duties and responsibilities when they lived together in Australia. Their evidence was also supported by photographic evidence, statements and oral evidence made by family and friends. The sponsor gave evidence that he has visited the applicant on two occasions in China and had intended to visit her more frequently but has been unable to do so due to the COVID-19 pandemic. The applicant and sponsor in their written submissions gave detailed and consistent evidence about their living arrangements and the Tribunal found their evidence persuasive, genuine and credible.

24. They have provided consistent evidence of their living arrangements and details about their daily lives, social activities, and personal life. The parties provided limited documentary evidence and correspondence addressed in individual and joint names indicating that they have lived together for a significant period at their common address in Australia prior to the applicant’s departure in May 2017. The applicant was aware of the sponsor’s changed circumstances where he is currently living (retirement village) and had sound knowledge of his daily activities. The sponsors witnesses provided convincing and detailed evidence at hearing of the parties’ cohabitation in Australia and China. The Tribunal found the oral evidence of Mr Wall and Mr Wang persuasive and credible.

25. Overall, the Tribunal accepts the parties have lived together and established a joint household. The Tribunal is satisfied that they share the household duties and responsibilities when living together.

    Social aspects

26. The Tribunal considered the social aspects of the relationship, including whether the parties represent themselves to other people as being in a relationship with each other, the opinion of friends and acquaintances about the nature of the relationship, and any basis on which the parties plan and undertake social activities.

27. The parties have provided captioned photographs taken of themselves with each other and  with family and friends at social events, significant events and on holidays in Australia and China. They also provided additional photographic evidence of the sponsor meeting the applicant’s family and sightseeing in China during the sponsor’s second visit along with travel documents and receipts. The Tribunal found their written submissions and photographic evidence persuasive. The parties also provided a number of additional statements from family and friends attesting to the parties’ relationship that give a strong insight into the inception and development of the relationship over a reasonable period of time. The parties provided evidence that both their families are supportive of their relationship.

28. The Tribunal accepts that the relationship is socially recognised by family and friends and they represent themselves to other people as being in a spousal relationship. The Tribunal accepts that the parties plan and undertake joint social activities together. There are statements from third parties who attest to the belief that the relationship is a genuine one.

29. The Tribunal places some weight on the social aspects of the relationship.

    Commitment

30. The Tribunal has considered the nature of the parties’ commitment to each other, including the duration of the relationship, the length of time the parties have lived together, the degree of companionship and emotional support they provide each other, and whether the parties view the relationship as a long-term one.

31. The applicant and sponsor claim to have met in February 2015 and after their relationship rapidly developed over a short period of time, they started living together in May 2015. They  registered their de facto relationship in March 2016. The parties lodged the application for a Subclass 309 (Partner)(Provisional)) visa in June 2017. Based on the evidence provided the Tribunal accepts the parties have been in a de facto relationship for more than seven years.

32. The couple provided consistent and detailed evidence in their written submissions and oral evidence about their plans for the future. The Tribunal is satisfied that they have discussed their plans and aspirations.

33. The parties described the immense commitment and empathy they have for each other and described how they have worked together to face and address any problems they have had particularly in relation to their linguistic skills and cultural backgrounds. They have continued to support each other during separation, and they contact each other on a daily basis via WeChat. They stated that they have both made a contribution to all aspects of their life together and they spend all their time together when possible, and they confide in each other and rely on each other for emotional support and guidance. Additionally, they have a plan that when the COVID-19 pandemic is over and the border restrictions are lifted to travel together, get married and care for their grandchildren.

34. The Tribunal is satisfied that the parties see their relationship as a stable, mutually supportive and long-term one. The Tribunal considers their evidence regarding their commitment to each other persuasive and genuine.

35. The Tribunal notes that the applicant and the sponsor were able to articulate the reasons for their decision to form a relationship and spoke of their common interests, expectations and future together in their written submission.

36. The Tribunal is satisfied the parties provide each other with a strong degree of companionship and emotional support that is commensurate with a couple having a commitment to a shared life together. The Tribunal is satisfied the couple view their relationship as a long-term one.

    Findings

37. The Tribunal is satisfied that at the time of application the applicant and sponsor had a mutual commitment to a shared life as de facto partners to the exclusion of all others, that their relationship is genuine and continuing and that they do not live separately and apart on a permanent basis. The Tribunal has no evidence that the parties are related by family. Therefore, the applicant meets the requirements of s.5CB(2)(a)-(d) of the Act.

38. Overall, the Tribunal is satisfied, having regard to the totality of the circumstances, that the applicant and the sponsor have a mutual commitment to a shared life to the exclusion of all others. The Tribunal is satisfied their relationship is a genuine and continuing relationship. The Tribunal is satisfied they have lived living together. The Tribunal is satisfied after considering all the circumstances of the relationship, that the parties were in a de facto relationship at the time of application and time of decision (r.1.09A).

39. Based on the above, the Tribunal is satisfied that the requirements of s.5CB(2)(a)-(d) of the Act are met at the time of application. The Tribunal further finds that at the time of decision the applicant is in a de facto relationship with the sponsor within the meaning of s.5F(2)(a)-(d) of the Act and meets the requirements of cl.309.221 of Schedule 2 to the Regulations. Therefore, the applicant meets cl.309.211.

40. The Tribunal is satisfied that the sponsor is not prohibited from being a sponsoring partner and continues to sponsor the applicant. The Tribunal is satisfied that the sponsor, at the time of the visa application and decision, was an eligible Australian citizen who had turned 18.

41. Furthermore, the Tribunal finds at the time of application the applicant meets the requirements of cl.309.211(2)(a) of Schedule 2 to the Regulations.

42. Based on the above, the Tribunal is satisfied that the requirements of s.5CB(2) were met at the time the visa application was made.

    Are the additional criteria for a de facto relationship met?

43. 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.

44. 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.

45. The applicant has provided evidence that the relationship was registered in Sydney on 21 March 2016 under the Births Deaths and Marriages Registration Act 1995 (NSW) as a kind of relationship prescribed in the Acts Interpretation (Registered Relationships) Regulations 2008 (Cth): r.2.03A(5). Accordingly, the 12-month requirement does not apply.

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

47. 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

48. 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(2) of Schedule 2 to the Regulations.

    ·cl.309.221 of Schedule 2 to the Regulations.

    ·r.2.03A.

    Russell Matheson
    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).