Brown (Migration)

[2017] AATA 2656

Brown (Migration) [2017] AATA 2656 (4 December 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Kyra Elizabeth Brown

CASE NUMBER:  1601182

DIBP REFERENCE(S):  BCC2014/3026750

MEMBER:Justine Clarke

DATE:4 December 2017

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 (Temporary)) 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 04 December 2017 at 4:17pm

CATCHWORDS
Migration – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner (Temporary)) – Joint assets and joint liability – Joint responsibility for the care of daughter – Shared housework – Social and public recognition

LEGISLATION
Marriage Act 1962, s 5(1), 88D, 88EA
Migration Act 1958, ss 5F, 5CB, 65, 360(2)(a)
Migration Regulations 1994, rr 1.09A, 2.03A, Schedule 2, cls 820.211, 820.221

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision of a delegate of the Minister for Immigration on 27 January 2016 to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant, Miss Kyra Elizabeth Brown, is a 32 year old national of Great Britain.

3. On 12 November 2014, the applicant applied for the visa on the basis of her relationship with her sponsor, Ms Krystal Graham. At the time of this decision, Ms Graham is a 32 year old Australian citizen. At the time of application, Class UK contained only one subclass: Subclass 820 (Partner (Temporary)). The criteria for the grant of this visa are set out in Part 820 of Schedule 2 to the Migration Regulations 1994 (the Regulations).

4. Miss Brown provided the Tribunal with a copy of the primary decision. The delegate assessed the application pursuant to cl.820.211(2), finding it to be the only subclause relevant in the circumstances. The delegate found that Miss Brown did not meet this subclause. The delegate considered that the information and evidence, submitted in support of the application, was not sufficient to demonstrate that Miss Brown satisfied the definition of de facto partner under s.5CB of the Act.

5. On 2 February 2016, Miss Brown applied to the Tribunal for review of the primary decision.

6. Upon reviewing the information and evidence on its file and the Department’s file, the Tribunal decided, pursuant to s.360(2)(a) of the Act, that it should decide the review in the applicant’s favour on the basis of the material before it and that a hearing was not required.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The primary criteria to be satisfied at the time of application are that the applicant is not the holder of a Subclass 771 (Transit) visa and that she meets one of the alternate requirements set out in cl.820.211(2), (5), (6), (7), (8) or (9): cl.820.211(1).

9. The Tribunal has reviewed Miss Brown’s movement records which also detail her visa status at various times. The Tribunal is satisfied that Miss Brown was not the holder of a Subclass 771 (Transit) visa at the time of application. Therefore the Tribunal finds that cl.820.211(1)(a) is met.

10. The subclause relevant to Miss Brown’s circumstances is cl.820.211(2). Accordingly, the issue is whether Miss Brown is Ms Graham’s de facto partner.

    Whether the parties are in a spouse or de facto relationship

11. Clause 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. A copy of the bio-pages of Ms Graham’s Australian passport is on the Department’s file. The Tribunal is satisfied that Ms Graham is an Australian citizen.

    Are the parties in a de facto relationship?

12. Miss Brown and Ms Graham were married in the British Consulate in Perth, Western Australia on 18 July 2016. A copy of the entry of the marriage into the Register Book of Marriages kept at that office is on the Tribunal’s file. At the time of this decision, that marriage is not a marriage that is valid for the purposes of the Act as required by s.5F(2)(a). This is because there is a specific prohibition, in the Marriage Act 1961 (Cth), on the recognition of foreign same sex unions: s.88EA. Also, the meaning of ‘marriage’, as defined in the Marriage Act and applicable to the recognition of foreign marriages, excludes same sex unions: s.5(1) and s.88D. The Tribunal is mindful of reform efforts to change the law in respect of same sex unions—both in respect of future marriages in Australia and recognition of foreign same sex marriages. However, at the time of this decision, the law has not changed and the Tribunal is bound to apply the current law.

13. As the parties are not married to each other under a marriage that is valid for the purposes of the Act, they cannot satisfy an essential requirement of a spouse relationship, but may meet the criteria on the basis of being in a de facto relationship as defined in s.5CB of the Act. 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 r.1.09A(3) which is attached to this decision.

    Consideration of the r.1.09A(3) factors

15. Regulation 1.09A(3) provides relevant factors for determining whether a de facto relationship exists. These factors are (a) the financial aspects of the relationship; (b) the nature of the household; (c) the social aspects of the relationship; and (d) the nature of the person’s commitment to each other.

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

17. The Tribunal notes that, in this review application, Miss Brown submitted a number of documents in support of her application, including:

    ·documents evidencing the financial aspects of the relationship, namely copies of:

    oa statement for a ‘Smart Access’ bank account in both parties’ names, and addressed to them at a property in Bundalaguah, Victoria, for the period 24 May 2013 to 30 June 2013;

    oa statement for the same ‘Smart Access’ bank account in both parties’ names, addressed to them at a property in Belmont, Western Australia, for the period 1 July 2014 to 30 December 2014;

    oa statement for a savings account in both parties’ names, and addressed to them at a property in Bundalaguah, Victoria, for the period 24 May 2013 to 24 November 2013;

    ostatements for the same savings account in both parties’ names, addressed to them at a property in Belmont, Western Australia, for the periods 25 May 2014 to 24 November 2014 and 24 May 2015 to 16 July 2015;

    ostatements for a credit card in the sponsor’s name, addressed to her at  properties in Onslow, Western Australia, for the periods 24 August 2015 to 8 October 2015 and 10 November 2015 to 7 January 2016;

    oa statement for an offset bank account (number ending in ‘79’) in both parties’ names, and addressed to them at a property in Onslow, Western Australia, for the period 25 September 2015 to 31 December 2015;

    oa statement for an offset bank account (number ending in ‘34’) in both parties’ names, and addressed to them at a property in Onslow, Western Australia, for the period 17 October 2015 to 16 January 2016;

    ofour rental statements (various dates in 2015 and 2016) addressed to the parties jointly at a property in Onslow, Western Australia and showing that rental income for a property in Sale, Victoria had been deposited into their joint bank account number ending in ‘79’;

    oa number of printouts of payments made to Miss Brown together with a handwritten annotation explaining the nature of this income; 

    ·documents evidencing the nature of the household, including a copy of:

    othe registered birth certificate for the infant X born in 2016, issued by the Western Australian Registrar of Births, Deaths and Marriages in 2016;

    ·documents evidencing the social recognition of the relationship, namely copies of:

    oa Form 888 statutory declaration made by Ms L H Bailey made on 30 January 2016 (with copy of relevant identity document);

    oa Form 888 statutory declaration made by Mr B J Bailey made on 30 January 2016 (with copy of relevant identity document);

    oa Form 888 statutory declaration made by Ms C M Miller on 1 February 2016 (with copy of relevant identity document);

    oa Form 888 statutory declaration made by Mr P D Ellis on 1 February 2016 (with copy of relevant identity document);

    oa Form 888 statutory declaration made by Mr P J Dwyer on 1 February 2016 (with copy of relevant identity document);

    oa Form 888 statutory declaration made by Ms F L McKay on 2 February 2016 (with copy of relevant identity document);

    oa Form 888 statutory declaration made by Ms S J Warren on 3 February 2016 (with copy of relevant identity document);

    oa Form 888 statutory declaration made by Mr G L Warren on 3 February 2016 (with copy of relevant identity document);

    ovoluminous printouts from the parties’ Facebook profiles, including some pages with handwritten annotations explaining that the various pages showed ‘Kyra’s relationship with Krystal’s mum—total acceptance of relationship’ and ‘Kyra’s relationship with Krystal’s sister’ and so on;

    oa number of photographs of the parties, including two photographs of the parties together; one of Ms Graham and another of Miss Brown with a group of children and a wombat—all of these photographs appear to have been taken on different days and at different locations; and

    ·documents evidencing commitment, such as copies of:

    omedical records detailing the parties’ efforts to have a child—the Tribunal thanks the parties for their openness in sharing these private details with the Tribunal;

    othe entry of the parties’ marriage, at the British Consulate in Perth, in the Register Book of Marriages kept at that office;

    othree photos of the parties—together with the infant X—at what appears to be the British Consulate in Perth on the day they married there.

    The financial aspects of the relationship 

18. Any joint ownership of real estate or other major assets, any joint liabilities, the extent of any pooling of financial resources, whether one person in the relationship owes any legal obligation in respect of the other and the basis of any sharing of day-to-day household expenses are relevant factors to consider when assessing the financial aspects of the relationship.

19. There is evidence that the parties have a joint asset in the form of a property in Sale. The Tribunal notes the signed contract of sale document which is on the Department’s file as well as the earlier mentioned rental statements which evidence that they have both received rental income in respect of this property. There is also evidence that the parties have a joint mortgage. The Tribunal notes the letter from the Commonwealth Bank, dated 11 June 2015, approving a joint home loan which is on the Department’s file as well as the earlier mentioned evidence that the parties have two joint offset accounts. The Tribunal gives weight to this evidence.

20. The record of responses to the Application for migration to Australia by a partner which is on the Department’s file states that the parties opened a joint bank account early in their relationship. As noted in the primary decision, the Department’s file contains three letters from the Commonwealth Bank advising of three separate joint bank accounts. The delegate had been critical that the parties had not provided copies of statements from any of these joint accounts. As noted earlier, in this review, the parties have provided copies of various bank statements. The Tribunal has reviewed these statements and is satisfied that the accounts are being used and that these accounts are joint assets.

21. In view of the documentary evidence, the Tribunal finds that the parties have a number of joint assets and a joint liability in the form of a mortgage. The Tribunal gives significant weight to this evidence.

22. With respect to any pooling of financial resources, the Tribunal notes and gives weight to the evidence given at the time of application in the record of responses to the Application for migration to Australia by a partner. The Tribunal notes that the responses appear to have been written by Ms Graham and not Miss Brown. In that document, it appears that Ms Graham stated:

    At the moment I am working full time and am getting paid on a weekly basis. My pay goes into my bank account which Kyra has complete access to. Kyra handles all the bills and payments that we have to make as a couple and transfers money from my personal account to our joint account as she sees fit.

23. The Tribunal notes that, in the primary decision, the delegate had stated, ‘[y]ou have provided a bank statement from your sponsor’s personal account which shows transfers being made to your joint bank account from 13/08/2014 onwards’.

24. The Tribunal has reviewed these ‘transaction listings’ and notes that, at that time, Ms Graham’s salary was deposited into her personal account and that amounts were frequently transferred into the account ending in the numbers ‘34’. Sometimes the transfers contained an explanation such as ‘rent’, ‘have fun lover’ or ‘Kyra ring’.

25. The Tribunal also notes that the parties’ friend Mr P J Dwyer stated, in his Form 888 statutory declaration made on 1 February 2016, that, ‘[t]he applicant and her fiancée have worked extremely hard together in a relatively short time to save money to purchase their first house’.

26. In view of the evidence before the Tribunal, the Tribunal is satisfied that the parties have pooled their financial resources and gives weight to this evidence.

27. With respect to any sharing of day-to-day household expenses, the record of responses to the Application for migration to Australia by a partner states:

    We shop together for groceries, bedding, camping equipment, clothes, presents for new babies born to our families, Christmas gifts etc. We pay for all bills and insurances out of our joint account. We also have van insurance together.

28. The Tribunal notes that Miss Brown provided some corroborating evidence to the Department in support of such claims. For instance, the Tribunal notes the evidence of joint travel insurance for a holiday in the Pacific region in late 2014.

29. Further, the Tribunal has noted that the bank statements submitted in this review evidence a number of payments for day-to-day household expenses having been made from their joint bank account/s. For instance, the statement for the joint offset account ending in the numbers ‘34’, for the period 17 October 2015 to 16 January 2016, records payments to Bupa and Telstra.

30. On the basis of the evidence before it, the Tribunal finds that: the parties have joint assets in the form of a number of Commonwealth Bank accounts (one being a savings account and the other being both a Smart Access account and an Offset Account) and a property in Sale; the parties pool their finances and they share day-to-day household expenses.

31. The Tribunal gives great weight to the evidence of the financial aspects of the relationship.

    The nature of the household

32. Any joint responsibility for the care and support of children, the living arrangements of the persons and any sharing of the responsibility for housework are matters to be considered when assessing the nature of the household.

33. Miss Brown and Ms Graham are each listed as a mother of the infant female child X who was born in the first half of 2016 in the birth certificate referred to earlier. At the time of this decision, X would be about 18 months old. Three of the photos submitted to the Tribunal evidence X being held by her mothers. The photos provide some evidence—albeit extremely limited—that both parties are responsible for the care and support of their daughter. The Tribunal finds that both parties are jointly responsible for the care and support of X. 

34. The information and evidence before the Tribunal is that the parties first started living together in a de facto relationship shortly after meeting in the first part of 2013. The Tribunal notes that there is documentary evidence that, over the years, the parties have lived together in various properties in Victoria and Western Australia. For example, the Tribunal notes the copy of the signed residential tenancy agreement which is on the Department’s file which evidences both parties as the sole tenants of a property in Exmouth, Western Australia from 30 October 2015 to 29 October 2016. The Tribunal notes that there have been changes to the parties’ address this year. On 18 April 2017, Miss Brown wrote to the Tribunal and stated ‘we have moved’ and gave her new address at a property in Sale, Victoria. More recently, on 25 August 2017, Miss Brown completed and submitted a change of contact details form giving her new residential address at another property in Sale.

35. With respect to any sharing of the responsibility for housework, the Tribunal notes the detailed responses given in the Application for migration to Australia by a partner and in Miss Brown’s relationship statement, which are both on the Department’s file. The latter states:

    Krystal and I both share a passion for cooking. We now love to cook together[;] experimenting with tastes. In the beginning of our relationship[,] because of my hand injury[,] Krystal did most of the household duties i.e. cooking, cleaning, vacuuming, and washing up. That has since changed with my hand back to fully fit strength. We share in household duties except for when Krystal is working. As she works full-time[,] I like to do what is needed. I love Krystal to come home and be able to relax unwind and enjoy a dinner I have prepared.  

36. The Tribunal accepts and gives weight to this evidence.

37. The Tribunal gives significant weight to the evidence of the nature of the household.

    The social aspects of the relationship

38. Whether the persons represent themselves to other people as being in a de facto relationship to each other, the opinion of the persons’ friends and acquaintances about the nature of the relationship and any basis on which the persons plan and undertake joint social activities are relevant matters to be considered in determining the social aspects of the relationship.

39. The Tribunal has reviewed and considered the many Form 888 statutory declarations and statements that have been made by the parties’ friends. The Tribunal notes that all of the declarants have known the parties for a number of years, were aware of their de facto relationship and that their reasons for considering the parties’ de facto relationship to be genuine and continuing are well considered and detailed.

40. From the voluminous documentary evidence before it (including photographs, printouts from Facebook profiles and joint invitations to events and congratulatory cards on their engagement), the Tribunal accepts that Miss Brown and Ms Graham have represented themselves socially to family and to their friends as a couple and that they continue to do so at the time of this decision.

1. The Tribunal also notes and gives weight to the evidence of holidays that the couple have taken together over the years, including to Bali where they became engaged and their 14,000km trip around Australia in their van. A number of the parties’ friends referred to the parties’ travels in their Form 888 statutory declarations.

2. In view of the evidence before the Tribunal, the Tribunal places great weight on the social and public recognition of the relationship.

   The nature of the person’s commitment to each other

3. The duration of the relationship, the length of time during which the persons have lived together, the degree of companionship and emotional support that the persons draw from each other, and whether the persons see their relationship as long-term are all aspects to be considered in determining the nature of the person’s commitment to each other.

4. The evidence before the Tribunal is that the parties have been in an exclusive and committed relationship for over four and a half years, having first met on 23 March 2013 at a bar in Sale where Ms Graham was working. The Tribunal notes that Miss Brown made an undated relationship statement which is on the Department’s file. She appears to have made a typographical error in stating at one point that they met on 23 March 2014 but it is clear from the rest of this statement and the other evidence before the Tribunal that the parties met in March 2013.

5. The responses given in the Application for migration to Australia by a partner nominate 23 March 2013 as the date they commenced their de facto relationship and committed to a shared life to the exclusion of all others.

6. The Tribunal has taken into account the couple’s respective ages, backgrounds and life experiences and accepts that neither Miss Brown nor Ms Graham was in a relationship with any third party at the time of application, or that this is the case at the time of this decision.

7. The Tribunal gives weight to the fact that the parties have been in a relationship for over four and a half years, living together for almost all of this time.

8. With respect to emotional support, the Tribunal notes and accepts Miss Brown’s detailed statements, made in her relationship statement, about the support that Ms Graham provided during the period when she had a serious hand/wrist injury. In her own words, she ‘needed a lot of help emotionally, physically and financially’.

9. In light of all of the evidence before the Tribunal, the Tribunal finds that the parties see their relationship as long term. For instance, the Tribunal notes that the completed Application for migration to Australia by a partner states that they were ‘going to buy a house, get married and have a family’. At the time of this decision, the parties have achieved these three goals.

10. The Tribunal places great weight on the nature of each person’s commitment to the other.

    Conclusion on s.5CB(2) requirements

11. Accordingly, the Tribunal is satisfied, considering all of the evidence cumulatively, that Miss Brown and Ms Graham have demonstrated, and continue to demonstrate, a level of commitment to one another and to their de facto relationship as contemplated in the Regulations. The Tribunal is satisfied that Miss Brown and Ms Graham are in a genuine and continuing relationship.

12. For these reasons, the Tribunal is satisfied that, at the time of application and the time of this decision, Miss Brown and Ms Graham

    ·were and are not in a married relationship, for the purposes of s.5F of the Act, with each other;

    ·had and have a mutual commitment to a shared life to the exclusion of all others, as required by s.5CB(2)(a) of the Act;

    ·had and have a genuine and continuing relationship, as required by s.5CB(2)(b) of the Act; and

    ·lived and live together, as required by s.5CB(2)(c)(i) of the Act.

13. Section 5CB(2)(d) of the Act requires that the parties not be related by family. There is nothing in the information before the Tribunal to suggest that the parties are related by family. To the contrary, in the record of responses to the Application for migration to Australia by a partner that is on the Department’s file, it was stated that they are not related by blood, marriage or adoption. The Tribunal finds that Miss Brown and Ms Graham are not related by family. Section 5CB(2)(d) of the Act is met.

14. The Tribunal finds that the requirements in s.5CB(2) of the Act are established.

15. However, the de facto or spouse requirement in cl.820.211(2)(a)(i) is not the only requirement in cl.820.211(2) which must be satisfied at the time of application.

    Time of application and time of decision requirements

16. The sponsorship requirements in cl.820.211(2)(a)(ii) and cl.820.211(2)(c) must also be satisfied, and, if the applicant was not the holder of a substantive visa at the time of application, then the requirements in cl.820.211(2)(d) must also be satisfied. 

17. The Tribunal has reviewed documents on the Department’s file such as the record of responses to the Application for migration to Australia by a partner. On the basis of this documentary evidence, the Tribunal is satisfied that Miss Brown is sponsored by Ms Graham and that cl.820.211(2)(c)(i) is met. There is no information before the Tribunal to suggest that the circumstances outlined in cl.820.211(2B) apply so the Tribunal finds that Ms Graham is not prohibited by that subclause from being a sponsoring partner. Accordingly, the Tribunal finds that cl.820.211(2)(a)(ii) is met.

18. Miss Brown’s movement records evidence her as having being granted a Working Holiday  (Temporary) (Class TZ) Subclass 417 visa on 1 August 2013. She held this substantive visa upon applying for the Partner (Temporary) (Class UK) Subclass 820 visa on 12 November 2014. As Miss Brown held a substantive visa at the time of application, the further requirements in cl.820.211(2)(d) need not be met.

19. The Tribunal finds that Miss Brown meets the time of application requirements in cl.820.211 as she meets all the requirements in cl.820.211(2).

20. With respect to criteria to be satisfied at the time of decision, the Tribunal finds that Miss Brown continues to meet the requirements of cl.820.211(2) and so meets cl.820.221(1)(a).

21. Miss Brown meets cl.820.211 and cl.820.221 of Schedule 2 to the Regulations.

    Are the additional criteria for a de facto relationship met?

22. 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 (r.2.03A(2)); and

    ·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 certain circumstances exist (r.2.03A(3)).

23. The Tribunal is satisfied that, at the time of application, which was 12 November 2014, both parties were at least 18 years old as required by r.2.03A(2).

24. As Miss Brown applied for the visa on 12 November 2014, she and Ms Graham must have started their relationship on 12 November 2013 in order to meet the requirement in r.2.03A(3).

25. Curiously, in the primary decision, the delegate identified the relevant 12 month period as ‘15/12/2013 and 15/12/2014’. The date ‘15/12/2013’ was given in a few respects. For example, the delegate stated:

    While I am satisfied that you currently have some joint financial commitments with your sponsor, I am not satisfied that as of 15/12/2013 you and your sponsor had any joint assets, had made any joint purchases, or that you shared any ongoing financial responsibilities.

26. The Tribunal takes a different view to the delegate and considers that there is sufficient evidence to satisfy the Tribunal that the parties’ de facto relationship pre-dates 12 November 2013. The Tribunal gives weight to the evidence of the social recognition of the relationship prior to 12 November 2013. The record of responses to the Application for migration to Australia by a partner states:

    My friends loved us as a couple. We were honoured with an invitation to [C] and [A] Miller’s wedding 09/November/2013 and were very proud to attend. (This invitation is included as evidence) …

27. The Tribunal confirms that a copy of this invitation is on the Department’s file.

28. The delegate acknowledged this evidence but does not appear to have given it much weight. The Tribunal is mindful that, at the time of this decision, it has further evidence in support of the social recognition of the relationship than what had been available to the delegate at the time of the primary decision. The Tribunal notes the Form 888 statutory declaration made by Ms C H Miller on 1 February 2016 where she states that she was first introduced to the applicant by Ms Graham in early April 2013. She further states that the parties were invited as a couple to her wedding on 9 November 2013. Miss Brown also submitted photographs said to be taken at this wedding. Further, Ms F L McKay, Mr P J Dwyer, Ms L H Bailey and Mr B J Bailey all stated in their Form 888 statutory declarations, that are on the Tribunal’s file, that Ms Graham had introduced them to Miss Brown in April 2013 as her partner and/or girlfriend. The Tribunal accepts and gives weight to this evidence which corroborates the parties’ claims that their de facto relationship pre-dates 12 November 2013.

29. The Tribunal finds that the parties’ de facto relationship existed 12 months prior to the visa application being lodged.

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

31. 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

32. 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 (Temporary)) visa:

    ·cl.820.211 of Schedule 2 to the Regulations

    ·cl.820.221 of Schedule 2 to the Regulations

    ·r.2.03A

    Justine Clarke
    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).