Booras (Migration)

[2023] AATA 2715

Booras (Migration) [2023] AATA 2715 (8 August 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Elsa Marie Booras

REPRESENTATIVE:  Mrs Margaret Taaffe (MARN: 0851585)

CASE NUMBER:  1932937

HOME AFFAIRS REFERENCE(S):          BCC2018/2114935

MEMBER:Justin Meyer

DATE:8 August 2023

PLACE OF DECISION:  Melbourne

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(1) of Schedule 2 to the Regulations

·reg 2.03A

Statement made on 08 August 2023 at 3:10pm

CATCHWORDS

MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – genuine and continuing relationship – registered relationship – joint bank account – shared pet dog ownership – joint travel – social media evidence – emotional support – decision under review remitted       

LEGISLATION

Migration Act 1958, ss 5, 65, 360
Migration Regulations 1994, Schedule 2, cls 820.211, 820.221; rr 1.09, 2.03

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 Home Affairs to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 16 May 2018 on the basis of her relationship with her sponsor. 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 (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 delegate was not satisfied the applicant met cl 820.211 of Schedule 2 to the Regulations. Relevantly, the delegate was not satisfied that there was sufficient evidence to demonstrate that the applicant was the ‘spouse’ or ‘de facto partner’ of her sponsor at the time of the application.

4. The applicant seeks review of the delegate’s decision.

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

6. The applicant provided further information to the Tribunal in support of her claims in May 2023. This information, which was accompanied by a submission addressing each of the relevant criteria, was comprehensive, detailed and cogent. The updated evidence included statutory declarations from parties, bank statements, statements from others, and correspondence between the parties.

7. The evidence and submissions provided by the applicant strongly supported her claims. The submissions provided were clear, directed to the issues that required determination and were supported by, or referred to, specific evidence provided or already provided.

8. Accordingly, in reaching my decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the visa applicant on the basis of the material before it, pursuant to s 360(2)(a) of the Act.

9. For the following reasons, I have concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in the present case is whether visa applicant was the de facto partner of her sponsor at the time of the application and whether she continues to be so at the time of this decision.

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

    Whether the parties are in a spouse or de facto relationship

12. Clause 820.211 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?

13. '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).

14. 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 reg 1.09A(3) which is attached to this decision. Each of the specific matters contained in reg 1.09A(3) are effectively questions which must be answered: He v MIBP [2017] FCAFC 206.

15. In assessing these issues, the Tribunal has had regard to all documents on the Department’s and the Tribunal’s files.

16. The relationship can be summarised as follows:

    Summary of relationship

    ·The applicant Ms Elsa Marie Booras (born on 31 October 1990 in the USA) is sponsored by Mr Adi Joseph Zayon (born on 14 August 1987 in Australia) who is an Australian citizen. 

    ·The applicant declared one brief previous de facto relationship and the sponsor disclosed two brief previous de facto relationships. Neither of them has children from their respective pervious relationships.

    ·The parties claim that they met through a dating app in May 2017 and ‘hit it off’ instantly and became inseparable. It is claimed that they commenced their de facto relationship on 12 May 2017. Parties registered their relationship on 8 June 2023.  A Victorian relationship certificate was provided. As per information provided by the parties, the applicant is a self-employed dog handler and the sponsor is a school teacher.

    Evidence

    Financial aspects

    Evidence before the Department:

    ·The applicant stated in the visa application that the parties discussed and divided up costs on a daily basis, such as taking turns paying for groceries and household items and splitting travel costs. She also indicated at that time that they had just opened a joint bank account. No supporting evidence in this regard was provided to the department.

    Evidence before the Tribunal

    ·Parties claim that they have been equal in sharing their spending. Before they began regularly using their joint bank account, they would take turns paying for meals, groceries, dates and trips.  In 2019 they adopted a dog  - the sponsor paid for the dog and the applicant took care of food costs and some vet visits until they started using the joint bank account for these.  They both contribute to the joint bank account with monthly payments from both and they use this account for bills, groceries, gifts and expenses related to their pet dog and other household expenses.

    In support of their claims, the following supporting evidence was provided:

    ·A selection of their Westpac joint bank account statements covering the periods from December 2019-June 2020, June-December 2022 and December 2022-May 2023 were provided to the Tribunal showing the account was opened on 19 December 2019. The statements appear to show that the parties have been transferring a set amount each month to the joint bank account. It appears that the applicant has been contributing AUD500.00 to AUD150.00 monthly. The bank statements indicate that the joint account has been used to pay groceries, online shopping, pet costs, meals and subscriptions among other things. Also provided were the sponsor’s bank statements for the period from April to July 2018 showing that the sponsor’s salary was deposited to this account.

    ·Documents relating to the pet dog were provided in support of claims that they have shared financial responsibilities regarding their pet. They include a pet adoption agreement showing that the sponsor as the owner, a pet registration renewal notice issued by the council to the sponsor regarding a dog, a pet insurance policy issued by RSPCA showing the applicant as the policy owner and a vet invoice billed to the sponsor.

17. Having regard to this evidence, I accept that the parties have shared their finances and household expenses. I am also satisfied that the applicant and sponsor jointly own assets, and this gives weight to a finding that there is a spousal relationship

18. Nature of the household

    Evidence before the Department:

    ·The applicant stated in the visa application that before May 2018, the parties maintained separate leases but she would stay at the sponsor’s place close to five nights per week. In May 2018, they moved in together to the sponsor’s father’ home at Caulfield North. She indicated that she and the sponsor did not have to pay rent or bills. However, they shared joint responsibilities by watching the sponsor’s two young nephews who come over frequently throughout the week and look after the family dog.

    ·An Australian Federal Police check issued to the sponsor on 4 December 2018 addressed at the above address.

    Evidence before the Tribunal:

    ·The parties claim that in February 2019 they moved from the sponsor’s father’ house to a house owned by the sponsor’s late grandmother in Caulfield North. They live there with their pet dog, whom they both walk, feed and nurture. As the property is family owned, they have not been required to pay rent or utilities apart from some bills such as internet and entertainment streaming services. The parties claim that they will be purchasing their first house together as the sponsor’s grandmother has recently passed away.

    ·A copy of the sponsor’s grandmother’s death certificate was provided. Also provided were copy of the sponsor’s grandmother’s will and a family trust deed showing that the sponsor is one of the beneficiaries of her estate/family trust and the sponsor was also appointed as a co-executor of the will. A letter from Gary & Peer dated 9 May 2023 sent to the sponsor states that the property has an estimated market value in the vicinity of AUD2.0-2.2 million.

    ·Mail and correspondences addressed to the applicant and sponsor jointly or separately at the addresses were provided, including those from the ATO, Westpac, Hostplus, internet provider TPG, local council and receipts from pharmacy/doctor/pathology provider.

19. Based on the above evidence, I am satisfied that the applicants have established a joint household and share domestic responsibilities. The living arrangements of the persons are reflective of a joint household and I give this weight. I am satisfied that there has been much interaction between them and they have been living together.

20. Social aspects of the relationship

    Evidence before the department:

    ·The applicant stated in the visa application that both parties regularly post/share pictures and videos, tag each other on their Instagram pages, showing that they are in a committed and loving relationship. They also mingled with each other’s friends. They have attended weddings, parties, sporting and religious family events and may other social functions together. They travelled together to Bali, Indonesia for a two-week holiday and to Chicago and Denver to be with the applicant’s family. They also travelled within Victoria together and made a road trip to Sydney and the Blue Mountains.

    ·Evidence of joint travel to Bali, Indonesia from 3 October 2019 to 13 October 2019 including flight itineraries in both names was provided in support of applicant’s application for a Bridging visa B for this travel.

    ·The application form listed details of two supporting witnesses being friends of the applicant: Hannah Rachel Cowell and Stephanie Kate Vitasovich. However, no statements from the witnesses were provided.

    Evidence before the Tribunal:

    ·The parties state that they went to Bali for a second time.

    ·Flight itineraries of joint travels were provided, showing the partied have travelled together to the Gold Coast in September 2018 and June-July 2021 and a joint travel to Darwin and Perth in January 2021. 

    ·Also provided to the Tribunal are witness statements from three witnesses signed in May 2023. The sponsor’s sister Ms Alexi Lamm states that the couple have been in a relationship for six years and are part of the family. She also states that the couple look after her two boys regularly and she is in contact with them at least once a week. The sponsor’s father Mr Barry Issac Zayon writes that the couple live nearby and often come over to his house and they have meals together and regular family gatherings. Ms Aimee Louise, a common friend of the couple also writes to confirm that the parties are in a love and committed relationship.  

    ·Screenshots of a selection of the parties’ social media posts from 2017 were provided. They include 56 posts/pictures, which appear to depict the couple together by themselves, with their dog and eating out or on holidays, as well as in various social settings with families and friends over the years.

    ·A selection of 31 photographs with captions from 2017 up to January 2023 depicting the couple of themselves including some intimacy moments and with families/friends at various settings, including the couple’s travel to Bali in September 2017 and their visit of the applicant’s family in the USA in January 2018.

    ·Also provided was a selection of cards and wedding invitation addressed at both the applicant and sponsor, as well as a selection of a chat history covering a period from 2019 to 2020 showing the applicant and the sponsor were part of a chat group among several others.

21. There is significant evidence of the applicant undertaking joint social activities. I also accept that there is evidence before the Tribunal that the relationship between the visa applicant and the review applicant is known to friends and family and is socially recognised.

22. Nature of the persons’ commitment to each other

    Evidence before the department:

    a.The applicant outlined the matters going to the various aspects of the relationship and the parties’ commitment in the visa application. No separate relationship statement was provided to the department. The applicant stated that the sponsor was there for her not only as a partner but also her best friend and had supported her through difficult times when her aunt and grandfather had passed away and at the relevant times she was unable to make her way back to Chicago to be with her family. She referred to the sponsor’s support when she had experienced issues with medications and bouts of depression, as well as the sponsor’s visit of her family in Chicago and Denver along with her.

    Evidence before the Tribunal

    b.Each of the parties provided their respective relationship statement in May 2023, through which, they address the development of their relationship and matters relating to the various aspects of the relationship, some of which were referred to above. The parties state that they have been together for six years. Together their relationship is growing stronger after having gone through the COVID pandemic and several deaths from their respective family. They indicate that they have large dreams for their future such as having a beautiful wedding and having children but state that at the moment they are still enjoying their time with one another and with their dog.

    c.Victorian relationship certificate showing the applicant and sponsor’s relationship was registered on 8 June 2023 following an application made on 11 May 2023.

    d.A sponsorship form 40SP signed by the sponsor on 8 May 2023.

23. It is evident from the above that the parties have a commitment to each other, taking to account a long duration of the relationship of some six years, having met in 2015 and committed to each other in 2017), living together over most of that long period, and companionship and emotional support that the persons draw from each other. I am satisfied that they see the relationship as a long term one.

24. Based on the information before me, and there is no evidence to the contrary, I am satisfied that the relationship between the applicant and the sponsor is genuine and continuing. The Tribunal is satisfied, based on the information provided and the detailed submissions, that the applicant and sponsor have a mutual commitment to a shared life to the exclusion of others. Furthermore, there is no evidence to suggest that the applicant and the sponsor live separately and apart on a permanent basis.

    Conclusion

25. As already noted, the applicant, through her representative, has provided cogent relevant evidence in support of her claim that she is in a genuine de facto relationship with the sponsor and has been in such a relationship from the time that they committed to each other in 2017. Further, there is not a 12-month relationship requirement as the de facto relationship is a relationship that is registered under a prescribed law of a State (per reg 2.03A(5)).

26. The statements and documentary evidence provided, including those from the applicant and the sponsor, were detailed. I found them to be plausible and persuasive.

27. On the basis of the above I am satisfied that the requirements of s 5CB(2) are met at the time the visa application was made and the time of this decision.

28. 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

29. The Tribunal remits the applications for Partner (Temporary) (Class UK) visas, with the direction that the first named applicant meets the following criteria for a Subclass 820 (Partner) visa:

    ·cl 820.211 of Schedule 2 to the Regulations; and

    ·cl 820.221(1) of Schedule 2 to the Regulations.

    ·reg 2.03A

    Justin Meyer
    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).