Duarte De Paula Costa (Migration)

Duarte De Paula Costa (Migration) [2019] AATA 1582 (25 January 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ms Micheli Duarte De Paula Costa
CASE NUMBER:  1716449
DIBP REFERENCE(S):  BCC2016/2703118
MEMBER:Susan Trotter
DATE:25 January 2019
PLACE OF DECISION:  Brisbane
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
·r.2.03A

Statement made on 25 January 2019 at 1:52pm

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Spouse) – applicant and sponsor in de facto relationship – evidence of relationship provided – significant degree of companionship and emotional support between applicant and sponsor – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 5, 65, 359, 360
Migration Regulations 1994(Cth), rr 1.09, 2.03, Schedule 2, cls 820.211, 820.221
Civil Partnerships Act (Queensland) 2011, s 9
CASES
Bretag v MILGEA [1991] FCA 582
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision of a delegate of the Minister for Immigration on 21 July 2017 to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s.65 of the Migration Act 1958 (the Act).
The applicant is a 32 year old citizen of Brazil. She applied for the visa on 16 August 2016 on the basis of her relationship with her sponsor, Mr Barry Seeto, an Australian citizen. 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 (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.
The delegate refused to grant the visa on the basis that, among other things, they were not satisfied that the applicant and sponsor had provided any documentary evidence demonstrating that they had combined their affairs significantly nor changed their wills or superannuation to show that they see the relationship as a long-term one.
The applicant lodged an application for review of the delegate’s decision with the Tribunal on 28 July 2017.
In accordance with s.360(2)(a) of the Act, the Tribunal considered it should decide the review in the applicant's favour on the basis of the material before it. It was therefore unnecessary to invite the applicant to appear at a hearing before the Tribunal.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
Partner visas involve a two stage process. The visa applicant must hold a provisional visa in order to be granted a permanent visa. The grant of the provisional visa enables the visa applicant to travel to and remain in Australia on a temporary basis. The grant of a permanent visa may subsequently be considered, and generally depends on whether the relationship has continued for a period of at least two years.
The criteria for a Subclass 820 visa are set out in Part 820 of Schedule 2 to the Migration Regulations 1994. Clauses 820.211(2)(a) and 820.221(1) 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, Australian permanent resident or an eligible New Zealand citizen and that the sponsor was not prohibited from being a sponsoring partner under cl.820.211(2B). In the present case, the applicant claims to have been the de facto partner of the sponsor at the time of the visa application and to continue to be his de facto partner now.
‘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, they live together, or do not live separately and apart on a permanent basis, and they are not related by family: s.5CB(2).
In forming an opinion as to the matters required in s.5CB(2), regard must be had to all of the circumstances of the relationship. This includes evidence of the financial and social aspects of the relationship, the nature of the persons’ household and the nature of their commitment to each other, as set out in r.1.09A(3) which is extracted in the attachment to this decision.
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; and with limited exceptions, that the visa applicant has been in the de facto relationship for at least the period of twelve months ending immediately before the date of the visa application, unless he or she can establish compelling and compassionate circumstances for the grant of the visa. The requirement that the relationship existed for twelve 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).
Clause 820.211(2)(c) requires the applicant to be sponsored by their spouse or de facto partner if the spouse or de facto partner has turned 18.
Additionally, the applicant must be the holder of a substantive visa at the time of the visa application, or certain further requirements must be met (cl.820.211(2)(d)).
It follows that the issues to be determined by the Tribunal are:
(a) Was and is the applicant the de facto partner of the sponsor at the time of the visa application and at the time of the decision?, that is:
(i)Were and are the requirements for a de facto relationship met[1]?; and
(ii)Were and are the additional criteria for a de facto relationship met?, including:
A.    were each of the applicant and the sponsor at least 18 years of age?; and
B.   had the applicant and the sponsor been in a de facto relationship for at least twelve months prior to the date of the visa application?; and, if not
C.   Are there compelling and compassionate circumstances for the grant of the visa or were there other circumstances existing such that the requirement to have been in a de facto relationship for at least twelve months prior to the date of the visa application does not apply?
and, if so,
(b) Is the sponsor prohibited from being a sponsoring partner?;
(c) Is the applicant sponsored as required?; and
(d) Did the applicant hold a substantive visa at the time of the visa application?
[1] S.5CB(2) of the Act
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant provided documentation with her visa application in relation to her relationship with the sponsor. She also provided significant additional documentation to the Tribunal.
The Tribunal accepts the evidence before it as summarised where relevant in these Reasons.
Background
The documentary evidence before the Tribunal, which the Tribunal accepts, shows the following background in relation to the applicant’s and sponsor’s relationship as follows:
(a) The applicant, a citizen of Brazil, is 32 years of age and the sponsor is 43 years of age.
(b) The applicant and the sponsor became friends following first meeting on 15 June 2013 at a gym in Carindale, Brisbane. At the time, the applicant was in Australia at the holder of a Subclass 402 (Training and Research) visa, spending six months undertaking a PhD in Oceanography at the University of Queensland. Their relationship became a romantic relationship in October 2013 as the applicant’s time in Australia was coming to an end.
(c) The applicant returned to Brazil on 10 November 2013 due to her PhD commitments. The applicant and the sponsor remained in contact following the applicant’s departure from Australia, between November 2013 and September 2015, including by text messages, phone calls and video messages. During this period of time, the applicant visited the sponsor in Brisbane for 10 days (in December 2014).
(d) In May 2015 the applicant received an International Postdoctoral Research Fellowship to return to Australia for a year.
(e) The applicant arrived back in Australia on 4 September 2015 and began living with the sponsor and his two children. The applicant and sponsor have remained living together since that time.
Issue 1 – Was and is the applicant the de facto partner of the sponsor at the time of the visa application and at the time of the decision?
Were and are the requirements for a de facto relationship met?
The Tribunal has had regard to all of the circumstances of the applicant’s and sponsor’s relationship, including the r.1.09A(3) matters to which it is required to have regard, and is satisfied that the applicant and the sponsor were in a de facto relationship at the time of the visa application. In this regard, the Tribunal may have, and has had, regard to later events in relation to an earlier point in time, so long as the later events tend logically to show the existence or non-existence of facts that existed at the time of application: Bretag v MILGEA [1991] FCA 582 (Bretag).The Tribunal has also taken into account recent documentation provided by the applicant and is satisfied that the applicant and the sponsor continue to be in de facto relationship now at the time of the decision.
In particular, the Tribunal is satisfied that at the time of the visa application and now:
(a) the financial aspects of the relationship between the applicant and the sponsor were and are consistent with their claimed relationship. Notably, although there is no evidence of joint ownership of real estate or other major assets, the evidence shows that the applicant and sponsor have a joint bank account, that the applicant has paid the loan fee and registration for the sponsor’s car, that the applicant has been named as a dependent of the sponsor on his tax returns, that the applicant has been named as a nominated beneficiary of the sponsor’s superannuation funds, that the applicant and the sponsor have both contributed to the household by buying household items and that they have jointly taken responsibility for the payment of household expenses since beginning to live together. Further, the applicant and sponsor own a pet dog together. The Tribunal notes and accepts that the sponsor has been living in his family home since 1997 with all utility bills already set up in his name to be paid by direct debit with no need to change those arrangements, but with the applicant contributing to other bills such as Telstra, groceries and entertainment where those direct debit arrangements were not already in place (as evidenced in bank account statements).
(b) the nature of the household of the applicant and sponsor was and is consistent with their claimed relationship. Notably, the evidence before the Tribunal includes correspondence to both the applicant and the sponsor (jointly and separately) addressed to the same address from October 2013 and continuing. Further various statutory declarations of friends and family (and statements of the applicant and the sponsor) attest to the applicant and sponsor sharing a household together as de facto partners since September 2015. The Tribunal notes that as regards the care of children, that notwithstanding that the sponsor’s children are not minors, the documentary evidence shows regular interaction between the applicant and the sponsor’s children and the applicant supporting the children including, for example, by assisting them with expenses such as car registration. Statements by the sponsor and his daughter canvass the commitment and support the applicant provides to the sponsor’s children, including by attending their sporting events, and notes that they see the applicant as a mother figure, someone who always has time for them and whom they can ask about anything.
(c) the social aspects of the relationship between the applicant and the sponsor were and are consistent with their claimed relationship. Voluminous statutory declarations, statements, photographs, travel and other documentation is in evidence before the Tribunal supporting that the applicant and the sponsor represent, and have represented, to other people that they have been in a de facto relationship since at least September 2015, that is the opinion of their friends and acquaintances that the applicant and the sponsor are in a de facto relationship and that the applicant and sponsor regularly plan and undertake joint social activities, including socialising with family and friends and extensive joint travel together and in company with family and friends. Further, documentary evidence before the Tribunal shows that the applicant and sponsor have represented each other as emergency contacts for each other for work, medical and other purposes, consistent with their claimed relationship.
(d) the nature of the applicant’s and sponsor’s commitment to each other was and is consistent with their claimed relationship. Notably, at the time of the visa application the applicant and the sponsor had known each other for over three years, had been romantically involved for nearly three years, had maintained a long-distance relationship during a 22 month period of living in different countries and had been living together for 11 months. They have now known each other for nearly six years and have been living together for nearly three and a half years. The applicant and the sponsor are each nominated beneficiaries of the other’s superannuation funds and they are each other’s emergency contacts at their respective work places and for medical and other purposes. Further, the totality of the documentary evidence before the Tribunal, including photographs, social media pages, travel documentation, details of gifts and statements from family and friends and joint statements of the applicant and sponsor, demonstrate a clear and significant degree of companionship and emotional support that the applicant and the sponsor draw from each other. For example, a statement by the sponsor dated 18 November 2017 canvasses the emotional support provided by the applicant to him including that she has ‘supported me so much during my work, with periods of longer hours and the stress entailed at my previous employment. She has been my rock during this period… organising to work from home when I am sick to ensure that I would be alright.’ and of him also acting reciprocally to the applicant’s needs. As regards the long-term nature of the relationship, reference is made in the sponsor’s statement to him learning to speak Portuguese to help with communication with the applicant’s parents and their plans to marry and have children. Given these and other matters demonstrated in the documentary evidence, including the extended duration of the relationship, the commitment shown financially (such as the nomination of each other as the beneficiary of their respective superannuation funds) and the commitment shown in registering a Civil Partnership on 30 August 2016, the Tribunal is satisfied that the applicant and the sponsor see their relationship as a long-term one.
Having taken into account all of the circumstances of the relationship, including the r.1.09A(3) matters to which the Tribunal is required to have regard, the Tribunal is satisfied that at the time of the visa application and now, the applicant and sponsor had and have a mutual commitment to a shared life to the exclusion of all others, that the relationship between them was and is genuine and continuing and that they lived together at the time of the visa application and continue to live together. Further, the Tribunal is satisfied that they are not related by family as that term is defined in s.5CB(4) of the Act. The Tribunal is therefore satisfied that the requirements of s.5CB(2) were met at the time of the visa application and continue to be met now.
The Tribunal therefore finds that the applicant was the de facto partner of the sponsor at the time of the visa application and continues to be the de facto partner of the sponsor now.
Were and are the additional criteria for a de facto relationship met?
Were each of the applicant and the sponsor at least 18 years of age?
The Tribunal is satisfied that the applicant and the sponsor were both at least 18 years of age at all relevant times.
Had the applicant and the sponsor been in a de facto relationship for at least twelve months prior to the date of the visa application?
Subject to the exceptions specified in r.2.03A(4) and (5), the Tribunal must also be satisfied that the applicant had been in the de facto relationship with the sponsor for at least the period of twelve months ending immediately before the date of the visa application, unless compelling and compassionate circumstances exist for the grant of the visa: r.2.03A(3).
It is submitted on behalf of the applicant that although she and the sponsor did not live together until September 2015 (only eleven months prior to the date of the visa application), they had been in a committed and genuine relationship since October 2013, and notwithstanding a separation between November 2013 and September 2015 for study (the applicant) and work (the sponsor) reasons, they were in a de facto relationship.
There is no requirement that a couple have lived together or are living together in order to be in a de facto relationship. Rather s.5CB of the Act requires that they ‘live together or do not live separately and apart on a permanent basis’. However, having regard to the totality of the evidence before it the Tribunal is not satisfied that the level of commitment and other circumstances of the relationship between the applicant and the sponsor was consistent with a de facto relationship until such time as the applicant committed to and returned to Australia and commenced living with the sponsor in September 2015. It follows that the Tribunal is not satisfied that the applicant and sponsor had been in a de facto relationship for at least twelve months prior to the date of the visa application.
Are there compelling and compassionate circumstances for the grant of the visa or were there other circumstances existing such that the requirement to have been in a de facto relationship for at least twelve months prior to the date of the visa application does not apply?
Relevantly r.2.03A(5) provides that r.2.03A(3) does not apply if the de facto relationship is a relationship that is registered under a law of a State or Territory prescribed in the Acts Interpretation (Registered Relationships) Regulations 2008 as a kind of relationship prescribed in those regulations.
The evidence before the Tribunal includes a registered relationship certificate dated 30 August 2016 between the applicant and the sponsor, in accordance with section 9 of the Civil Partnerships Act (Queensland) 2011. The Civil Partnerships Act (Queensland) 2011 is prescribed.
The Tribunal therefore finds that based on the registered relationship certificate, r.2.03A(3) does not apply.
For these reasons, the Tribunal is satisfied that the additional criteria prescribed in r.2.03A(2) were met at the time of the visa application and r.2.03A(3) does not apply.
Issue 2 - Is the sponsor prohibited from being a sponsoring partner?
There is no evidence before the Tribunal that the sponsor is prohibited under cl.820.211(2B) from being a sponsor.
Issue 3 - Is the applicant sponsored as required?
The sponsor sponsored the visa application and is over the age of 18 years. The Tribunal finds that the requirements of cl.820.211(2)(c) are met.
Issue 4 - Did the applicant hold a substantive visa at the time of the visa application?

Records show, and the Tribunal finds, that the applicant held a substantive visa at the time of the visa application. Clause 820.211(2)(d) is therefore met.
Conclusion
As the requirements of s.5CB(2) are met, the Tribunal is satisfied that at the time of the visa application and at the time of the decision, the applicant was and is the de facto partner of the sponsor. Further, there is no evidence that the sponsor is prohibited from being a sponsor and the Tribunal has found the applicant was sponsored as required and held a substantive visa at the time of the visa application. The Tribunal therefore finds that the requirements of cl.820.211(2) were met at the time of the visa application and continue to be met at the time of decision such that cl.820.221(1) is also met.
The Tribunal has also found that the requirements of r.2.03A are met.
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
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(1) of Schedule 2 to the Regulations
·r.2.03A
Susan Trotter
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).

[2019] AATA 1582

25 January 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice