Doskocilova (Migration)

[2024] AATA 1165

Doskocilova (Migration) [2024] AATA 1165 (9 May 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Zuzana Doskocilova

REPRESENTATIVE:  Mr Martin Udall (MARN: 0746812)

CASE NUMBER:  1925607

HOME AFFAIRS REFERENCE(S):          BCC2017/1657479

MEMBER:P. Maishman

DATE:9 May 2024

PLACE OF DECISION:  Perth

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

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

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

·reg 2.03A.

Statement made on 09 May 2024 at 2:12pm

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – de facto partnership for 12 months before application made – relationship now registered – financial, household and social aspects of relationship and nature of commitment – length of relationship – supporting statements – decision made without hearing necessary – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5CB(2), 65, 360(2)(a)
Migration Regulations 1994 (Cth), rr 1.09A(3), 2.03A, Schedule 2, cl 820.211(2)(a), 820.221(1)

CASE
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 9 May 2017 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 visa applicant did not satisfy cl 820.211(2)(a) because the delegate was not satisfied the applicant was the de facto partner of the sponsor for 12 months prior to her application.

4. In reaching its 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.

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

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The Tribunal had before it a copy of the Department’s file containing the information and documents received by the Department.

8. The applicant gave the Tribunal a copy of the delegates decision record with her application for review. On 29 April 2024 the Tribunal received updated and current information addressing the criteria. 

9. The issue in the present case is whether the applicant is the de facto partner of the sponsor.

   Whether the parties are in a spouse or de facto relationship

10. 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?

11. '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).

12. 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.

    Financial aspects of the relationship

13. The Tribunal had regard to the evidence of the financial aspects of the relationship including joint ownership of assets; joint liabilities; extent of pooling of financial resources; any legal obligations owed to the other party; any sharing of day-to-day household expenses.

14. The applicant submitted she and the sponsor have maintained a joint NAB bank account since February 2017. Transactions statements from April to June 2017 and June 2023 to December 2023 indicate both parties make deposits to the account and transactions on the account indicate it is used to purchase day to day household items and groceries. The applicant submits she has resided at two premises with the sponsor since 2015. The applicant was included on the sponsors tenancy application dated 6 June 2015 as another resident of the premises. The applicant was included as a lease holder with the sponsor on their subsequent lease agreement from 7 June 2018. The parties have declared each other as spouses on their income tax returns since at least 1 July 2017.  

15. The parties do not claim to jointly own significant assets. The parties have shared liabilities in respect of a shared obligation to meet their rental costs. The Tribunal accepts the parties pool their financial resources in relation to their regular expenses. The Tribunal accepts the parties share their day-to-day living costs.

16. The financial aspects of the applicant and sponsor’s relationship are indicative of a couple in de facto relationship at the time of application and at the time of this decision.    

    Nature of the household

17. The Tribunal had regard to the evidence of the nature of the household including any joint responsibility for care and support of children; parties’ living arrangements; and any sharing of housework.

18. The parties do not claim to have children for whom they are jointly responsible. The applicant submitted she does most of the household duties while the sponsor does more of the cooking. All other household chores are shared.

19. The Tribunal is satisfied the nature of the applicant and sponsors household is indicative of a couple in a genuine de facto relationship at the time of application and at the time of this decision.

    Social aspects of the relationship

20. The Tribunal had regard to the evidence of the social aspects of the relationship including whether parties represent themselves to other people as being in a de facto relationship with each other; the opinion of friends and acquaintances about the nature of the relationship; and any basis on which the persons plan and undertake joint social activities.

21. Photos and documents submitted to the Tribunal support that the applicant and sponsor have shared holidays and family events together since 2015. The sponsor’s sons have provided statutory declarations identifying the applicant as their fathers partner which they have know to be the case since 2015. The Tribunal notes also the applicant’s friends, Jesse Bryant, Bohdana Zajickova, Naomi Johnson and Kristina Buday attest to the genuineness of the applicant and sponsors relationship. 

22. The Tribunal satisfied the social aspects of the parties’ relationship is indicative of a couple in a genuine de facto relationship at the time of application and at the time of this decision.

    Nature of persons’ commitment to each other

23. The Tribunal had regard to the evidence of the nature of the parties’ commitment to each other including duration of the relationship; the length of time they have lived together; degree of companionship and emotional support they draw from each other; and whether they see the relationship as long-term.

24. The parties claim to have first met in 2014 and their relationship developed from Christmas 2014 and committed to a shared life together from June 2015. They have shared accommodation and many trips together since then. Their long term goals include buying a house for a permanent life together in New South Wales.

25. The Tribunal is satisfied the nature of the applicant and sponsors commitment to each other as indicative of a couple in a genuine de facto relationship at the time of application and at the time of this decision.    

    Any other circumstances

26. The Tribunal has considered the circumstances of the applicant and sponsors relationship including the matters set out in reg 1.09A(3). The Tribunal finds that the applicant and the sponsor have a mutual commitment to a shared life to the exclusion of all others, the relationship between them is genuine and continuing, and they live together. The applicant and sponsors birth certificates are contained on the Department’s file. The certificates confirm the applicant and the sponsor are not related by family.

27. On the basis of the above the Tribunal is 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. There is no evidence that the sponsor is prohibited by cl 820.211(2B) from being a sponsoring partner and the applicant accordingly meets cl 820.211(2)(a).

29. The applicant was the holder of a substantive visa at the time she applied for this visa and cl 820.211(2)(d) does not apply.

30. Therefore the applicant meets cl 820.211(2) and cl 820.221(1)(a).

    Are the additional criteria for a de facto relationship met?

31. Persons claiming to be in a de facto relationship for a partner visa must also meet the additional criteria in reg 2.03A. Both members of the couple must be at least 18 years old: reg 2.03A(2). In this case, at the time of application, the applicant and the sponsor were at least 18 years old.

32. 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: reg 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.

33. The applicant has provided evidence that the relationship is registered in New South Wales under the Births Deaths and Marriages Registration Act 1995 as a kind of relationship prescribed in the Acts Interpretation (Registered Relationships) Regulations 2008: reg 2.03A(5). Accordingly, the 12 month requirement does not apply.

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

35. 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

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

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

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

    ·reg 2.03A.

    P. Maishman
    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).