Bui (Migration)

[2019] AATA 5270

Bui (Migration) [2019] AATA 5270 (21 November 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Vu Hoang Oanh Bui

CASE NUMBER:  1703539

HOME AFFAIRS REFERENCE(S):          BCC2016/527507

MEMBER:Nicola Findson

DATE:21 November 2019

PLACE OF DECISION:  Perth

DECISION:The Tribunal remits the application for a Regional Employer Nomination (Permanent) (Class RN) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 187 (Regional Sponsored Migration Scheme) visa:

·cl.187.311 of Schedule 2 to the Regulations.

Statement made on 21 November 2019 at 11:25am

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – member of family unit – genuine de facto relationship – financial aspects – sharing of day-to-day expenses – nature of household – social aspects – commitment to each other – beneficiary of superannuation policy – 12 month requirement – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5CB, 65
Migration Regulations 1994 (Cth), rr 1.09A, 2.03A; Schedule 2, cl 187.311

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 Regional Employer Nomination (Permanent) (Class RN) visa under s.65 of the Migration Act 1958 (the Act).

2. On 4 February 2016, Mr Le Phan Tuan Anh made an application for a Subclass 187 visa.  On 5 December 2016, the applicant was added to Mr Le’s application for a Subclass 187 visa, on the basis that she was a member of the family unit of Mr Le, the primary visa applicant. 

3. A decision was made to grant Mr Le’s visa on 21 February 2017.  However, the delegate refused to grant the visa the subject of this review because the delegate was not satisfied that the applicant met the definition of a “de facto partner” within section 5CB of the Act, and therefore found that the applicant did not meet cl.187.311 of Schedule 2 to the Regulations.

4. The applicant was represented in relation to the review by her registered migration agent.

5. No hearing was held in this case as the Tribunal was able to make a favourable decision on the materials before it.  For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in the present case is whether the applicant and Mr Le were in a de facto relationship within the meaning of s 5CB of the Act  for 12 months ending on the date the applicant was added to Mr Le’s visa application, and if not whether there are compelling and compassionate circumstances for the grant of the visa.

   Are the parties in a de facto relationship?

7. ‘De facto partner’ is defined in s.5CB of the Act and 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).

8. 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.

9. The applicant in this matter is a Vietnamese citizen.  She came to Australia in September 2012 and met Mr Le in February 2015.  A relationship developed and in May 2015 the parties started living together. 

10. The applicant provided the Tribunal with information and documents which included, but were not limited to, statutory declarations of the applicant, Mr Le, and other supporting witnesses; a tenancy agreement, bank statements, a superannuation account statement, car insurance policy certificate, health insurance policy certificate, red cross correspondence, and photos. The Tribunal had before it significantly more information than was available to the delegate.

    Financial aspects of the relationship

11. The Tribunal has taken into account the evidence provided as to the financial aspects of the relationship including the extent of pooling of financial resources and any sharing of day-to-day household expenses.

12. The Tribunal considered the evidence provided to it which included the written statements of the applicant and Mr Le, Commonwealth bank statements in the parties’ joint names from 2016 to 2019.

13. Based on the evidence, the Tribunal is satisfied that when the parties’ commenced living together, they both contributed to their joint living expenses. The applicant and Mr Le set out in their statutory declarations that for the duration of their relationship they have both worked full-time and shared expenses.  Mr Le states that at the beginning, he was responsible for paying their rent and utility bills, while the applicant paid for their food as well as other household and living expenses. Both the applicant and Mr Le state that since November 2016, they have both deposited money into a joint bank account and drawn on that account to pay for their rent, groceries and bills.  They have also purchased appliances and furniture for their home together from this account. This evidence is consistent with the credit and debit entries in the bank account statements before the Tribunal.

14. The evidence before the Tribunal also indicates that in February 2017, the parties opened an additional savings account in joint names, to save for a house deposit, and they both contribute to this account.

15. The applicant and Mr Le purchased a car from their joint account in March 2018.  The vehicle licence and RAC insurance policy costs were also paid out of the parties’ joint account.  The Tribunal notes that the car insurance policy lists both the applicant as well as Mr Le as policy holders.

16. The evidence before the Tribunal reflects that the couples’ tenancy agreement is in joint names; they are noted on the same private health insurance and household contents insurance policies, and they have a joint Red Cross donation account. 

17. The Tribunal finds that the pooling of financial resources and sharing of day-to-day household expenses are indicators of a genuine and continuing de facto relationship.

    Nature of the household

18. The Tribunal has taken into account evidence as to the nature of the household including the parties’ living arrangements and any sharing of housework.

19. The evidence before the Tribunal includes the parties’ statutory declarations provided to the Tribunal, as well as various receipts and correspondence addressed to the applicant and Mr Le at a Morley address in Western Australia. 

20. The evidence before the Tribunal indicates that Mr Le asked the applicant to move in with him in May 2015, and that they have lived together continuously since that time. 

21. The parties set out in their statements to the Tribunal that while the applicant does a greater share of the cooking, both the applicant and Mr Le share the general household tasks, including cleaning, laundry, and gardening. The parties’ also stated, and the evidence reflects, that the parties have recently welcomed two dogs in to their household, to care for together.

22. The Tribunal is satisfied that the nature of the household of the applicant and the sponsor is an indicator of a genuine and continuing de facto relationship.

    Social aspects of the relationship

23. The Tribunal has considered the evidence provided as to whether the persons represent themselves to other people as a couple, 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.

24. The Tribunal has had regard to the evidence provided to it, including written statements made by the applicant, Mr Le, the parties’ landlord and a family member, as well as photos. That evidence indicates that family have known the parties to be a couple since the beginning of 2015, and that early on in their relationship the parties introduced each other to their parents in Vietnam by Facetime and Skype. The evidence indicates that Mr Le travelled to Vietnam in 2017, to spend time with the applicant’s family.  The evidence also indicates that the applicant hopes to travel to Vietnam with Mr Le to meet his parents in person, when her visa (which does not currently allow her to travel) is resolved.

25. The evidence before the Tribunal is that Mr Le plays basketball once a week, and the applicant accompanies him to the games.  The parties’ relationship is also known to their work colleagues and they often attend work parties and dinners together.    

26. Based on the evidence, the Tribunal is satisfied that parties represent themselves to other people, including family and friends, as being in a de facto relationship with each other.

    The nature of the persons’ commitment to each other

27. The Tribunal has considered the evidence provided in relation to the nature of the persons’ commitment to one another including the duration of the relationship, the length of time they have lived together, the degree of companionship and emotional support they draw from each other and whether they see the relationship as long term.

28. The Tribunal considered the evidence before it which included the parties’ statutory declarations and superannuation account statements.

29. In their written statements to the Tribunal the parties set out that they have a solid relationship and that their plans for the future are the same.  It is clear from their evidence that the parties have enjoyed over 4 years together and are excited about their future, which includes marriage, purchasing a house together and having children.   

30. During the review process, on 1 February 2018, the applicant and Mr Le became engaged.  The parties state, and the evidence reflects, that they celebrated their engagement with their friends.

31. The applicant’s superannuation policy shows that she has named Mr Le as her beneficiary.

32. On the basis of the evidence before it the Tribunal finds that at the time the applicant was added to Mr Le’s visa application the parties were not living separately and apart on a permanent basis and that they saw their future as a long term one. The Tribunal is also satisfied that the parties continue to have a mutual commitment to a shared life together to the exclusion of others and that the relationship is genuine and continuing.

33. The Tribunal is satisfied that at the time the applicant was added to Mr Le’s visa application and at the time of this decision the parties were in a de facto relationship.

34. On the basis of the above the Tribunal is satisfied that the requirements of s.5CB(2) are met.

    Are the additional criteria for a de facto relationship met?

35. Regulation 2.03A provides for additional criteria that are not part of the s.5CB(2) definition, that apply where a person claims to be in a de facto relationship for the purposes of a visa application. These are: that the couple are both at least 18 years of age; and with limited exceptions, that the 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 he or she can establish compelling and compassionate circumstances for the grant of the visa. The requirement that the relationship existed for 12 months prior to the application does not apply in certain circumstances where the sponsor is or was a humanitarian visa holder, or for applications made on or after 9 November 2009, where the de facto relationship has been registered under a relevant State or Territory law: r.2.03(4), (5). These exceptions do not apply in the present case.

36. The Tribunal accepts on the evidence before it that the applicant and Mr Le were over the age of 18 at the time of application. Therefore the applicant satisfies r.2.03A(2).

37. The documentation submitted, which is now extensive, illustrates that the parties met in February 2015 and began living together in May 2015.  The Tribunal has decided that the relationship is genuine and continuing and the parties live together and do not live separately and apart on a permanent basis.  The Tribunal also accepts on the evidence before it that the applicant committed to an exclusive relationship with Mr Le more than 12 months prior to the date she was added to Mr Le’s Subclass 187 visa application.

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

39. 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 187 visa.

    DECISION

40. The Tribunal remits the application for a Regional Employer Nomination (Permanent) (Class RN) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 187 (Regional Sponsored Migration Scheme) visa:

    • cl.187.311 of Schedule 2 to the Regulations

    Nicola Findson
    Member

    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).