Boland (Migration)

[2019] AATA 6458

Boland (Migration) [2019] AATA 6458 (13 November 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Davina Margaret Boland

CASE NUMBER:  1800879

HOME AFFAIRS REFERENCE(S):          BCC2016/3848555

MEMBER:Nicholas McGowan

DATE:13 November 2019

PLACE OF DECISION:  Melbourne/Sydney

DECISION:The Tribunal remits the application for a Partner (Temporary) (Class UK) visa, with the direction that the applicant meets the following criteria for a Subclass 820 (Partner) visa:

·cl.820.211(2) of Schedule 2 to the Regulations

·cl.820.221of Schedule 2 to the Regulations; and,

·r.2.03A

Statement 13 November 2019 at 7:19am

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Spouse) – relationship certificate provided – parties in de facto relationship 12 months before visa lodgement – relationship recognised under Australian law – parties over 18 years old at time of application – additional evidence provided – decision under review remitted

LEGISLATION
Acts Interpretation (Registered Relationship) Regulations 2008
Migration Act 1958 (Cth), s 5CB(2)
Migration Regulations 1994 (Cth), rr 1.09A, 2.03A, Schedule 2, cls 820.211, 820.221

REVIEW

1. On 16 November 2016 the applicant applied for a Partner (Temporary) (Class UK) visa under s.65 of the Migration Act 1958 (the Act).

2. On 4 January 2018 a delegate for the immigration minister refused to grant the visa.

3. The delegate refused to grant the applicant the temporary partner visa because the applicant failed to satisfy the requirement (at Regulation 2.03A).

4. Regulation 2.03A requires the applicant and her sponsor to have been in a de facto relationship 12 months prior to their visa lodgement. That is, 12 months prior to 16 November 2016.

5. The delegate went on to considered the alternative to the criterion, and determined that none of the circumstances necessary to meet the alternatives to 2.03A(3), those contained in 2.03A(4) or 2.03A(5), were applicable in the applicant’s application.

6. The applicant appealed the Minister’s refusal decision to this independent tribunal for a merits review on 11 January 2018.

   EVIDENCE AND FINDINGS

7. Prior to this tribunal’s public hearing conducted in Sydney on 14 October 2019, the applicant provided a relationship certificate (dated 21 February 2018) at folio 69 of this tribunal’s file number 1800879.

8. In light of the new evidence, this tribunal is satisfied that the requirements of Regulation (2.03A) have now been met because the provision of the ‘relationship certificate’ means the stipulations under 2.03A no longer prevent the applicant from meeting the criteria for the grant of the visa, because it gives rise to Regulation 2.03A(5), as the applicant’s circumstances are now such that the parties’ de facto relationship has been recognised under an Australian State law as prescribed in the Acts Interpretation (Registered Relationship) Regulations 2008.

9. As this tribunal has found the applicant now satisfies Regulation 2.03A (5) for the purposes of Regulation 2.03A(3); and, the parties were both over 18 years of age at the time of application on 16 November 2016; the applicant has satisfied this tribunal she now meets the requirements specified in Regulation 2.03A for the purposes of clause 820.211(2).

10. Further, this tribunal is satisfied, having considered the circumstances as set out under the Act and Regulations, that the applicant was at the time of the temporary partner visa application, the de facto partner of her sponsor who is an Australian born citizen (as evidenced by his Australian Citizenship certificate contained at folio 64 of Department of Immigration file number BCC2016/3848555).

11. It follows that this tribunal is satisfied that at the time of application the applicant met the requirements of clause 820.221(2) for the purposes of her partner visa application.

12. Since the time of application, the parties’ relationship has continued and evolved. The applicant and her sponsor are now engaged to be married. They are planning their wedding. They continue to live together. They have the support of their families and friends, which is evidenced by the attendance of the applicant’s future parents-in-law to this tribunal’s hearing, and they are broadly known to be the partner of each other.

13. The additional documentary evidence the applicant has provided this tribunal (which are in addition to those documents given to the Department of Immigration previously) also speak to and corroborate the applicant’s claims, further evidencing their joint social activities (including travel and vacations together), general recognition of their relationship, and financial transactions made as partners.

14. The above additional documentary evidence will be shared with the Department for their information.

15. On the basis of the additional oral and document evidence of the applicant herself, her partner and her future  parents-in-law, each who provided spontaneous and consistent oral evidence at this tribunal’s public hearing held in Sydney on 14 October 2019, this tribunal has concluded the applicant also satisfies the requirements of s.5CB(2) at the time of this decision.

16. Given all the above, the applicant satisfies cl.820.211 and cl.820.221.

17. Given these findings, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 820 visa.

    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).