Durante (Migration)

[2020] AATA 262

Durante (Migration) [2020] AATA 262 (4 February 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Alessio Durante

CASE NUMBER:  1720866

DIBP REFERENCE(S):  BCC2016/84417

MEMBER:Donna Petrovich

DATE:4 February 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for 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; and

·cl.820.221 of Schedule 2 of the Regulation

Statement made on 04 February 2020 at 10:50am

CATCHWORDS

MIGRATION – Partner (Temporary) (Class UK) – Subclass 820 (Spouse) – genuine de facto relationship – evidence provided upon review – relationship registered – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2 cls 820.211, 820.221, r 2.03A

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 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 6 January 2016 on the basis of her relationship with her Australian Citizen partner. The delegate refused to grant the visa on 24 August 2017.

3. On 30 October 2019 this tribunal conducted a public hearing to examine the relationship between the applicant and her sponsor and consider whether they meet the requirements under the act and regulations for the grant of the temporary partner visa. 

4. During the public hearing the applicant provided candid and spontaneous oral evidence, as did his de-facto partner. They exhibited knowledge of each other consistent with a de-facto couple living together. They previously provided a registered relationship certificate, obtained through the Registry of Births, Deaths and Marriages and stated that they had commenced a de-facto relationship on 18 June 2015.

5. The applicant’s agent has provided additional documentary evidence as requested by the Tribunal at the hearing on the 30 October 2019, which consisted of a Statement by Barbara De Michele confirming that the sponsor and the applicant contribute $400 per week in lieu of rent which she invests on their behalf in her RAIZ Invest Australia Fund.  A statement by the sponsor’s father confirming his ownership of the apartment that the sponsor and applicant live in rent free.  A copy of the Raiz investment fund statement confirming $400 per week transfer from the applicant and sponsor. Statements from NAB for the periods between May to September 2019 confirm the payment $400 per week has been transferred to Barbara De Michele’s Raiz account in the name of Alessio Durante and Sara Fantin. 

6. The couple gave evidence that they both work in hospitality and together have very few outgoings as a result of the support of their family, and provision of food through their separate workplaces.  Both the applicant and sponsor work long hours and the sponsor works and studies full time.  The evidence they have provided serves to corroborate the parties’ oral claim of being in a genuine relationship. 

   The Tribunal explored the extent to which immediate family either supported, or do not, their relationship.  The Tribunal discussed with the parties their future intentions, including beginning a family, travel and other social activities anticipated.  This Tribunal examined and discussed with the parties’ their current living arrangements and their employment.  A witness was also present during the Tribunal’s public hearing, and provided basic corroboration in support of the parties’ claims of being in a genuine relationship. This Tribunal has carefully considered these aspects against all the other evidence which speaks to the relationship as claimed. 

   Are the additional criteria for a de facto relationship met?

7. Persons claiming to be in a de facto relationship for a partner visa must also meet the additional criteria in .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 a de facto relationship for the 12 months immediately preceding the date of the application, unless he or she can establish compelling and compassionate circumstances for the grant of the visa. 

8. The requirements 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).

9. The Tribunal finds that the review applicant and the applicant were at least 18 years of age at time of application. The parties therefore met r.2.03A(2)(a) and (b).

10. The Tribunal has had regard to the question of whether, with limited exceptions, at the date of application 6 January 2016 the applicant had been in a de facto relationship with the review applicant for 12 month prior: r.2.03A(3). From all the evidence available to the Tribunal, the parties first met in person and commenced living together in Melbourne on 15 June 2015. The Tribunal accepts that the parties de facto relationship did not exist for a full 12 months before the date of the application, but they have maintained a continuous, and caring relationship and lived together in an exclusive and committed relationship  from the 15 June 2015 until the present time. The Tribunal also notes the parties registered their relationship on 20 January 2016. (T1,f 50). As the parties relationship has been registered - consistent with the provisions in the Act and regulations - the additional criteria has been satisfied, notwithstanding their de facto relationship commenced shy of meeting the ‘12 month rule’.

    Findings      

11. For the above reasons, the Tribunal is satisfied that the applicant meets the additional criteria.

12. On the basis of all the evidence before it, the Tribunal is satisfied that the parties have a mutual commitment to a shared life to the exclusion of all others, that their relationship is genuine and continuing. The Tribunal is satisfied that the parties are not related by family as defined by s.5CB(4).

13. The Tribunal is satisfied that the requirements of s.5CB(2) are met at the time of application and decision. It follows that the Tribunal is satisfied that the requirements of s.5CB(2) are met at the time of application and decision.

14. Accordingly, the applicant meets cl 820.211(2) (a) and cl.820.221.

15. Given the 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

16. The Tribunal remits the application for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 820 visa:

    ·cl.820.211(2), and;

    ·cl.820.221 of Schedule 2 to the Regulations.

    Donna Petrovich
    Member