Duval (Migration)

[2024] AATA 3131

Duval (Migration) [2024] AATA 3131 (29 August 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Jean-Francois Leon Raymond Duval

REPRESENTATIVE:  Mr Matheus Da Silva (MARN: 1466919)

CASE NUMBER:  2003277

HOME AFFAIRS REFERENCE(S):          BCC2017/4459602

MEMBER:Edward Howard

DATE:29 August 2024

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

·reg 2.03A

Statement made on 29 August 2024 at 4:56pm

CATCHWORDS

MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – genuine and continuing relationship – confirmation of sponsorship form – joint responsibility for regular expenses – shared residence in two countries and travel – joint social activities – family recognition – decision under review remitted  

LEGISLATION

Migration Act 1958, ss 5, 65, 360
Migration Regulations 1994, Schedule 2, cls 820.211, 820.221; rr 1.09, 2.03

CASES

Ally v MIAC [2008] FCAFC 49
Bretag v IRT [1991] FCA 582
He v MIBP [2017] FCAFC 206
Jayasinghe v MIMA [2006] FCA 1700

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 review applicant a Partner (Temporary) (Class UK) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The review applicant applied for the visa on 25 November 2017 on the basis of his relationship with his 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. In the decision record of 7 February 2020, the delegate noted that the department’s preferred method of confirmation of sponsorship is via the Sponsorship for a partner to migrate to Australia form. The delegate noted that this form was not submitted by the sponsor at the time of application. It was noted that in the absence of such form, the delegate must be satisfied that the legislative requirements have been met pursuant to cl 820.211.

4. The delegate refused to grant the visa on the basis that the review applicant did not satisfy cl 820.211(2) of Schedule 2 of the Regulations, in failing to prove that he was the spouse or de facto partner of the Australian citizen referred to in the application.

5. The Tribunal has had the benefit of receiving extensive evidence and submissions from the parties since the time of the delegate’s decision, which information was unavailable to the delegate. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

6. In reaching its decision the Tribunal did not consider a Hearing to be necessary, as it was able to find in favour of the review applicant on the basis of the material before it, pursuant to s 360(2)(a) of the Act.

   ISSUES AND LAW

7. The review applicant is Jean Francois Duval, aged 75 years, a citizen of France and the sponsor is Desley Ann Truscott, aged 70 years, an Australian citizen.

8. There is a two stage process for onshore Partner visas. A visa applicant must first hold a provisional visa, enabling them to remain in Australia on a temporary basis, prior to the grant of a permanent visa. The grant of a permanent visa would generally depend on whether the relationship has continued for a period of at least two years. In this matter, the Tribunal is considering the first, temporary stage.

9. Where the Tribunal is considering a criterion that requires the definition of spouse or de facto partner to be met at the time of the visa application, the information supplied in relation to the reg 1.09A(3) matters may relate to circumstances after the time of application. In forming a view of the relationship at the time of application, the Tribunal must consider all relevant evidence, which may include evidence of events after the date of application insofar as it assists in the task of determining whether the visa applicant and the sponsor were in a partner relationship at the time of the application. Evidence of events after the visa application is relevant if it tends logically to show the existence or non-existence of facts relevant to the issue to be determined.[1] The Tribunal observes this to be a matter where the review applicant submitted limited documentary evidence in support of his visa application to the Department of Home Affairs and then furnished the Tribunal with further evidence that was unavailable to the primary decision maker.

   [1] Ally v MIAC [2008] FCAFC 49 at [32]–[35]; Jayasinghe v MIMA [2006] FCA 1700 at [35], citing MIEA v Poche (1980) 4 ALD 139 at [24] per Deane J which held that evidence of subsequent events may be taken into account if it ‘tends to logically show the existence or non-existence of’ the relationship at that particular time; and see also Bretag v IRT [1991] FCA 582 at [13]–[15].

10. The issue in the present case is whether at the time of the visa application and the time of this decision, the review applicant is the spouse or de facto partner of the sponsor.

    Whether the parties are in a spouse or de facto relationship

11. Clauses 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 review 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 review applicant claims to be the de facto partner of the sponsor who is an Australian citizen.

    Are the parties in a de facto relationship?

12. '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).

13. 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.

14. 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 review applicant and the sponsor were at least 18 years old.

15. The review 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 review 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.

16. Having considered all the evidence and for the reasons as set out below, the Tribunal is satisfied that the parties were in a de facto relationship for in excess of 12 months prior to the date of application and therefore satisfy the additional criteria in reg 2.03A.

    Are the other requirements for a partner relationship met?

    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.

17. The evidence of the parties is that they share all their expenses and financial obligations evenly. As each of them own a residence, they individually take care of the financial obligations in respect of the utilities and outgoings of each residence. However, they pool their resources and share in their everyday living and household expenses.

18. The Tribunal finds that in relation to the financial aspects of the relationship, whilst the parties do not have joint ownership of real estate or any major assets, they have joint responsibility for regular outgoings and commitments. The Tribunal is satisfied that the parties pool their resources and contribute to the financial relationship. Their financial arrangements are consistent with the financial situation of a committed and genuine partner relationship. The Tribunal weighs the financial aspects of the relationship in favour of the review applicant.

    Nature of the household – including any joint responsibility for care and support of children; parties’ living arrangements; and any sharing of housework.

19. The parties first begin their relationship in 2010 and began living together at that time. They spend six months of each year in the review applicant’s home in France and the other six months at the sponsor’s home in Australia. The parties evidence is that they share household duties and general chores.

20. The Tribunal is satisfied that the parties’ household and living arrangements are consistent with that of a de facto couple in a genuine relationship. The Tribunal weighs the household aspects of the relationship in favour of the review applicant.

    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. The evidence of the parties is that they spend regular time in the company of their children and friends, both in France and Australia. The parties are provided their passports and evidence relating to the extensive travel that they have undertaken together as a de facto couple over the last 14 years.

22. The parties have provided extensive photographs of themselves together and in the company of family and friends. These photographs cover a range of occasions and locations in both France and Australia.

23. The parties have also provided a number of statutory declarations in support of the relationship. Each of the declarants have known the review applicant since 2010 and have been close friends with the sponsor for up to 30 years. The Tribunal notes that each of the declarants provide specific and credible observations of the time that they have spent with the parties and their belief in the genuineness of the relationship. The Tribunal gives weight to these statutory declarations.

24. It is the evidence of the parties that they are socially accepted as a de facto couple. The parties have provided evidence supporting their claim of being a de facto couple in a genuine relationship. The evidence demonstrates the clear recognition by family and friends, of the relationship between the parties, recognising the parties as a genuine couple over a period of 14 years.

25. The Tribunal is satisfied on the evidence that the parties represent themselves to other people as being in a genuine partner relationship, that they hold the favourable opinion of family, friends and acquaintances about the nature of the relationship and that they regularly plan and undertake joint social activities. The Tribunal weighs the social aspects of the relationship in favour of the review applicant.

    Nature of persons’ 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.

26. The review applicant is Jean Francois Duval, aged 75 years, a citizen of France and the sponsor is Desley Ann Truscott, aged 70 years, an Australian citizen.

27. The parties first begin their relationship in 2010 and began living together at that time. They spend six months of each year in the review applicant’s home in France and the other six months at the sponsor’s home in Australia. The evidence of the parties is that they spend regular time in the company of their children and friends, both in France and Australia.

28. The parties have provided extensive photographs of themselves together and in the company of family and friends. These photographs cover a range of events and locations in both France and Australia. The parties have also provided a number of statutory declarations in support of the relationship.

29. The parties have provided evidence of an ongoing financial relationship, together with evidence of household and living arrangements over an extended period of time consistent with that of a de facto couple in a genuine, long-term partner relationship. The evidence demonstrates the clear recognition by family and friends of the relationship between the parties, recognising the parties as a genuine couple over a period of 14 years.

30. From the evidence provided, the Tribunal finds that the parties are in a genuine and continuing partner relationship, show a strong commitment to each other, provide significant emotional support to each other and clearly see the relationship as long-term. The Tribunal weighs the nature of the commitment in favour of the review applicant.

    Overall Conclusions

31. The Tribunal has considered separately and as a whole, the evidence before it regarding each of the prescribed matters under r. 1.09A, that is, the financial, household, social and commitment aspects of the relationship.

32. In forming a view, the Tribunal is mindful of the authority in ^[1] Ally v MIAC [2008] FCAFC 49 at [32]–[35]; Jayasinghe v MIMA [2006] FCA 1700 at [35], citing MIEA v Poche (1980) 4 ALD 139 at [24] per Deane J which held that evidence of subsequent events may be taken into account if it ‘tends to logically show the existence or non-existence of’ the relationship at that particular time; and see also Bretag v IRT [1991] FCA 582 at [13]–[15].

33. Having carefully considered all the evidence and for the reasons above, the Tribunal is satisfied that at the time of application, the parties had a mutual commitment to a shared life as a de facto couple to the exclusion of all others; that the relationship between them is genuine and continuing; and that they live together and have done so since they were married. The Tribunal is therefore satisfied the requirements of section 5CB of the Act were met the time of the visa application.

34. The Tribunal is further satisfied that at the time of this decision the parties continue to have a mutual commitment to a shared life to the exclusion of all others and that the relationship between them has been and remains genuine and continuing. The Tribunal is also satisfied that they have lived together and not separately and apart on a permanent basis since their marriage. The Tribunal is therefore satisfied the requirements of section 5CB of the Act are met at the time of this decision.

35. The Tribunal is therefore satisfied that the parties relationship fulfilled the criteria contained in cl 820.211(2)(a) of the regulations at the time the visa application was made.

36. Pursuant to cl 820.221(1), in order to be eligible for the grant of a subclass 820 (UK) visa, the review applicant must also continue to meet the requirements of cl 820.211(2) at the time of this decision. Having regard to the evidence before the Tribunal, the Tribunal is satisfied that the review applicant continues to meet the requirements of clause 820.211(2), hence satisfying the criteria in clause 820.221.

37. Therefore, the Tribunal finds that the review applicant meets the requirements of clauses 820.211(2) and 820.221(1).

38. 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

39. The Tribunal remits the application for a Partner (Temporary) (Class UK) visa, with the direction that the review 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

    Edward Howard
    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).