Doornbos (Migration)

[2018] AATA 2502

Doornbos (Migration) [2018] AATA 2502 (20 June 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Thomas Giliam Doornbos

CASE NUMBER:  1722755

DIBP REFERENCE(S):  BCC2016/2517404

MEMBER:Mark O'Loughlin

DATE:20^th June 2018

PLACE OF DECISION:  Adelaide

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(2) of Schedule 2 to the Regulations

·cl.820.221of Schedule 2 to the Regulations

· r.2.03A

Statement made on 20 June 2018 at 4:10pm

CATCHWORDS

Migration – Partner (Temporary) (Class UK) visa – Subclass 820 (Spouse) – Genuine de facto relationship – Finances – Joint responsibility for the sponsor’s mortgage – Shared living expenses – Commitment to each other – Wills in each other’s favour – Brief period of physical separation  due to Sponsor’s studies – Lived together in Australia – Represent themselves as a couple to others – Decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth) , ss 5CB, 65

Migration Regulations 1994 (Cth), 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 (“the delegate”) on 7 September 2017 to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 29 July 2016 on the basis of his relationship with his sponsor. At that time, 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). 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.820.211(2) because the parties had not provided adequate evidence to satisfy the delegate that their relationship is and has been a de facto relationship as contemplated by  cl.820.211(2)(a)(i) and 820.221.

4. The applicant appeared before the Tribunal on the 25^th of May 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor, Peta Louise White, and Caroline White, the sponsor’s mother.

5. 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, at the time of the application the parties’ relationship was a de facto relationship for the purposes of cl.820.211(2) and whether, at the time of the decision, the parties’ relationship is a de facto relationship as contemplated by cl.820.221.(1)(a).

   Since the decision of the delegate, a substantial amount of further information has been provided by and on behalf of the applicant.  This further information includes details of a joint bank account, details of certain ongoing expenses shared by the parties, details of shared health cover, information about travel undertaken by the parties, copies of lease documents in the names of both of the parties, copies of wills that the parties have prepared in each other’s favour, various witness statements, and further photographs depicting various outings, holidays and social gatherings.

   This further information provides a much clearer picture of the relationship between the parties than the information that was available to the delegate.

   Whether the parties are in a spouse or de facto relationship

7. 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. 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?

8. 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).

9. 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.

10. Financial Aspects of the Relationship      

11. Joint Ownership of Real Estate or Other Major Assets

12. The applicant gave evidence that at the time of the application the parties were not in a financial position to acquire real estate or any other major assets.  While this does not assist the application, it is understandable and is not fatal.

13. At the time of the hearing relating to this decision the situation had changed.

14. The parties gave evidence that the sponsor has recently bought a residence and that the applicant is contributing to the mortgage payments in equal shares with the sponsor. 

15. They said that they were advised that until the applicant has a permanent visa it will be too difficult for him to obtain finance in his own name.  On that basis the sponsor arranged the mortgage and the title in her name.

16. Her evidence was that, should the visa application succeed, they will make new financial arrangements that will include the applicant as a mortgagor and they will also add his name to the title.

17. While it could not be said that the parties have formally acquired real estate on a joint basis, the Tribunal accepts that they intend to share both responsibility for and the benefit of the sponsor’s mortgage.

18. Any Joint Liabilities

19. At the time of the application the parties rented a home jointly and were both liable for the rent.

20. The mortgage referred to above is the most significant liability at the time of this decision.  Although strictly the applicant is not liable to make mortgage payments, the Tribunal accepts that he does so and that the parties intend that this will be formalised if this application is successful.

21. The Extent of Pooling of Financial Resources

22. At the time of the application the parties pooled financial resources to the extent necessary to cover living expenses including rent. The Tribunal accepts that money was tight but that the applicant contributed within his means.

23. Since the application, in December 2016, the applicant obtained full time employment at Loreto College and the Tribunal accepts the evidence of both parties that he has made a more equal contribution to the couple’s living expenses since then, including at the time of the hearing related to this decision. 

24. Any Legal Obligations Owed by One Party to the Other

25. At the time of the application it is arguable that the parties were jointly and severally liable for rent and to that extent they may have been said to owe legal obligations to one another.

26. At the present time the Tribunal does not find that there are legal obligations that the parties owe each other but the Tribunal accepts that the parties intend to take joint responsibility for the mortgage if this application is successful and in that event there will be mutual legal obligations owed.

27. Sharing of Day to Day Expenses

28. At the time of the application the parties shared rent and household expenses although the applicant was limited in his ability to contribute as he did not have regular work.

29. Since December 2016 he has contributed to all of the day to day costs and in particular the Tribunal is satisfied that the parties have shared the cost of health care, rent, power, groceries and entertainment expenses, including at the time of the hearing related to this decision.

30. Further in respect of the financial aspects of the relationship, the Tribunal has been provided with copies of wills that the parties have prepared in each other’s favour and also accepts their evidence that they have nominated each other as beneficiary of their superannuation entitlements.

31. The Nature of the Household

32. Care of Children

33. The parties do not have children and are neither jointly nor individually responsible for the care of any children.

34. Living Arrangements

35. At the time of the application the parties were renting a residence in the city.  The Tribunal has been provided with lease documents to that effect. 

36. Further the tribunal has heard from the parties and from the sponsor’s mother, Caroline White and on the basis of that evidence accepts that they had been cohabiting since 31 June 2015 without any substantial breaks.

37. The Tribunal has further heard, and accepts, that the parties cohabited in the Netherlands from the 28 July 2014 until the 2^nd March 2015.  The Tribunal has heard and accepts that the sponsor returned to Australia in March 2015 to resume study and that the applicant moved to Australia on 31^st July 2015. The parties were therefore apart for about 5 months but did not consider themselves to be living separately and apart on a permanent basis during that time.

38. Some strength is lent to that evidence by the fact that the parties have cohabited continuously since the applicant’s arrival in Australia nearly three years ago.

39. During the first 9 months of the parties’ time living together in Australia, they lived as a couple with the sponsor’s parents.

40. The Tribunal has heard and accepts that since then they have shared occupation of two homes and that they have lived in each as a couple and as the sole occupants of the homes.

41. At the time of the application the Tribunal accepts that the parties lived together in a rented home in Adelaide.

42. The Tribunal accepts that at the time of this decision the couple share a home that they are buying in Norwood.

43. Sharing of Housework

44. The Tribunal has heard from the parties and accepts that at the time of the application and at the time of this decision they have lived together as sole occupants of their residence and have shared housework.

45. Further to the above the Tribunal notes that the parties have apparently registered their de facto relationship with the SA Department of Consumer and Business Services although this was done recently and is not persuasive.

46. The Tribunal does note that the Sponsor declared her relationship with the applicant to Centrelink in July of 2016 which the Tribunal accepts as an indication that the parties had established a household.

47. Social Aspects of the Relationship

48. Representation of Relationship as a De Facto Relationship

49. The Tribunal has had regard to the evidence of the parties given at the hearing, the evidence of the sponsor’s mother, Caroline White, photographic evidence of various social and entertainment events that they have attended as a couple, statements from friends of the couple (Natalia Kaspryk, Holly Rawson and Sarah Matkovic), letters of support from the sponsor’s brother and his fiancée, Mr Chris Penny of Loreto Rowing and Ms Kathryn Burrow, a former workmate of the sponsor’s.

50. On the basis of the evidence set out above the Tribunal accepts that at the time of the application the couple presented to friends and family as being in a de facto relationship with each other.

51. Further, the Tribunal accepts that at the time of this decision the couple continue to so represent themselves.

52. The Opinion of Friends and Acquaintances of the Parties as to the Relationship

53. On the basis of the above evidence the Tribunal also finds that at the time of the application friends and acquaintances of the parties held the opinion that they were in a de facto relationship.

54. There is little evidence of the opinion of friends and acquaintances of the parties at the time of this decision although the parties assert that there has been no change in the way that they present to friends and acquaintances.

55. Any Basis on Which the Persons Plan and Undertake Joint Social Activities

56. The parties have an active social life and there is evidence in the form of photographs, invitations, and various screenshots of exchange of messages which all support this.

57. The Nature of the Persons’ Commitment to each other.

58. The Duration of the Relationship

59. The Tribunal has heard from the parties and from the sponsor’s mother that the parties have been in a relationship since September 2013 and that they started to live together in late July 2014.

60. There was a period from March to late July 2015 during which the parties were physically separated by circumstances but they did not consider themselves to be living separately and apart on a permanent basis.   The parties have lived together since then.

61. The Tribunal accepts that the parties committed to each other at some time prior to August 2014 and that the relationship is therefore one of about 4 years duration.

62. The Length of Time During Which the Persons Have Lived Together.

63. At the time of the application the parties had lived together for about 2 years save for about 5 months when the sponsor returned to Australia to study.  The Tribunal accepts that the parties were not living separately and apart on a permanent basis during that 5 month period.

64. At the time of the decision the parties have lived together for about 4 years save for the period of about 5 months referred to in the preceding paragraph..

65. The Degree of Companionship and Emotional Support that the Persons Draw From Each Other

66. At both the time of the application and the time of the decision the parties spent a substantial amount of time in each other’s company and drew significant companionship from each other.

67. This is evident both from the parties’ evidence to that effect and from the extensive social media evidence that they provided.

68. Evidence of emotional support is limited but the parties say, and the Tribunal accepts, that the applicant has found the uncertainly of the visa process emotionally demanding and that the sponsor has been able to offer him comfort.

69. Whether the Persons See the Relationship as a Long Term One

70. The parties say that both at the time of the application and at the time of the hearing they saw the relationship as a long term one and that their plans include further travel and building a life together.

71. More recently, as discussed above, the parties have bought a flat together which suggests a long term commitment.

72. The Tribunal accepts the parties’ evidence in this regard and finds that the applicant and sponsor see the relationship as a long term one.

73. For the purposes of the definition of a de facto relationship at s.5CB(2) the Tribunal is obliged by regulation 1.09A (2) to consider the matters listed at 1.09A(3).

74. The Tribunal’s consideration of those matters is set out above.

75. The Tribunal has found that the financial aspects of the relationship between the applicant and the sponsor are sufficiently shared to suggest that the relationship is a de facto relationship as contemplated by s5CB(2) and the regulations. The parties have shared a wide range of expenses including the cost of shared accommodation and living expenses.

76. Further, the Tribunal has found that the parties have committed to a purchase of real estate which is a substantial indication of shared finances.

77. As regards the nature of the household the Tribunal has found that although there are no children of the relationship, the parties’ living arrangements and the sharing of housework are such as to bring them within the definition in the act.

78. The Tribunal has found that consideration of the social aspects of the relationship provides a clear picture that they present themselves as being in a de facto relationship.

79. This is supported by the important evidence of the sponsor’s mother who has observed the relationship for some years, and also by a range of evidence of social occasions at which the parties have assisted.

80. The Tribunal has had regard to the evidence of the nature of the parties commitment to each other and is satisfied that it is sufficiently well established and close to fall within the factors contemplated by the regulations.

81. Further, the Tribunal is satisfied that the parties view the relationship as a long term relationship which is a factor upon which the Tribunal places significant weight.

82. On the basis of the above the Tribunal is satisfied that both at the time the visa application was made and at the time of this decision the requirements of s.5CB(2) were and are met in that the applicant and sponsor had and continue to have a mutual commitment to a shared life to the exclusion of all others, that the relationship between them was and is genuine and ongoing, that they did and continue to live together and that they are not related by family as defined.

83. There is a certified copy of the sponsor’s birth certificate and passport among the application documents which show that she was born an Australian citizen. There is nothing to suggest that she has renounced her Australian citizenship and so the Tribunal finds that the sponsor was an Australian citizen at the time that the application for this visa.

84. The sponsor is not a woman who was granted a subclass 204 visa.

85. Therefore the applicant meets cl.820.211  (2) (a) (i) and (ii).

86. For the purposes of cl.820.211(2)(c) the Tribunal finds that the applicant is sponsored by his de facto partner who had turned 18 at the time of the application.

87. Correspondence on the file confirms that at the time that the applicant made the application subject of this review, he held a Working Holiday (Temporary) visa which is a substantive visa for the purposes of cl 820.211(2)(d) and he is not therefore required to satisfy the other provisions of that subclause.

88. On the basis of the above findings the Tribunal finds that the applicant meets the requirements of cl.820.211(2) and  cl.820.221.

    Are the additional criteria for a de facto relationship met?

89. 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.

90. 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.

91. The persons have submitted evidence that the relationship is registered under South Australian law, namely a copy tax invoice for the registration of a relationship with White, P which was paid for by the applicant, Thomas Doornbos. 

92. There is no certificate of registration and nothing to indicate whether this registration is as a kind of relationship prescribed in the Acts Interpretation (Registered Relationships) Regulations 2008.

93. The evidence of relevant registration of the relationship is not, therefore, conclusive.

94. In that event the persons must meet the 12 month requirement in r2.03A(3).

95. The Tribunal has already found that the relationship was well established by August of 2014. There was a period during which the persons lived apart but this separation was not permanent and did not serve to interrupt the de facto relationship.

1. Accordingly, the Tribunal is satisfied that the applicant had been in the de facto relationship for at least the 12 month period ending immediately before the date of the application.

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

3. 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

4. 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 (2)of Schedule 2 to the Regulations

   ·cl.820..221 of Schedule 2 to the Regulations

   ·r.2.03A

   Mark O'Loughlin
   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).