Frezik Rozman (Migration)

[2020] AATA 86

Frezik Rozman (Migration) [2020] AATA 86 (7 January 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Yuryitza Frezik Rozman

CASE NUMBER:  1713250

DIBP REFERENCE(S):  BCC2016/643125

MEMBER:John Longo

DATE:7 January 2020

PLACE OF DECISION:  Melbourne

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(1) of Schedule 2 to the Regulations

·cl.820.221(1)(a) of Schedule 2 to the Regulations

·r.2.03A.

Statement made on 07 January 2020 at 3:55pm

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – genuine de facto relationship – financial aspects – joint ownership of assets – pooling of resources – flexible approach to the payment of household expenses – minimal documentary evidence – credible oral evidence – nature of household – social aspects – joint social activities – nature of commitment – support during workplace injury – 12-month requirement – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5CB, 65
Migration Regulations 1994 (Cth), rr 1.09A, 2.03A; Schedule 2, cls 820.211, 820.221

CASES
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 Immigration to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s.65 of the Migration Act 1958 (the Act). The applicant applied for the visa on 13 February 2016. The delegate refused to grant the visa on 8 June 2017.

2. The delegate made the decision on the basis that the evidence of the applicant did not satisfy cl.820.211(2) because the applicant did not meet the definition of de facto partner under s.5CB of the Act. Specifically, the delegate noted a lack of evidence of the pooling of resources, of a joint household and of shared responsibilities of a household. The delegate also found that there was unconvincing evidence that they presented as a couple to family or the wider community and that they saw the relationship as a long term one as required to satisfy a criterion for the grant of the visa under the Migration Regulations 1994 (the Regulations).

3. On 22 June 2017, the applicant applied to the Tribunal for review of the primary decision. The applicant has been unrepresented in this review.

4. On 9 October 2019, the applicant appeared before the Tribunal to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor, Mr Nikola Brajkovic. The Tribunal hearing was conducted with the assistance of an interpreter in the Spanish and English languages. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The primary criteria to be satisfied at the time of application are that the applicant is not the holder of a Subclass 771 (Transit) visa and that she meets one of the alternate requirements set out in cl.820.211(2), (5), (6), (7), (8) or (9): cl.820.211(1).

6. The Tribunal has reviewed the applicant’s movement records which also detail her visa status at various times. The Tribunal is satisfied that the applicant was not the holder of a Subclass 771 (Transit) visa at the time of application. Therefore, the Tribunal finds that cl.820.211(1)(a) is met.

7. The subclause relevant to the applicant’s circumstances is cl.820.211(2). The key issue for determination is whether, at the time of application on 13 February 2016, the applicant was the de facto partner of the sponsor. In the circumstances of this case, the Tribunal considers that it is appropriate to make findings about cl.820.221(1)—a time of decision criterion—as well.

   Whether the parties are in a spouse or de facto relationship

8. 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. The applicant claims to be the de facto partner of the sponsor who is an Australian citizen. The Tribunal notes that a certified copy of the sponsor’s Australian passport is on the Department’s file. The Tribunal is satisfied that the sponsor is an Australian citizen.

   Are the parties in a de facto relationship?

9. ‘De facto partner’ is defined in s.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).

10. 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. Each of the specific matters contained in r.1.09A(3) are effectively questions which must be answered: He v MIBP [2017] FCAFC 206.

    Consideration of the r.1.09A(3) factors

11. In assessing these issues, the Tribunal has had regard to all documents on the Department’s and the Tribunal’s files as well as the oral evidence given at the hearing.

    The financial aspects of the relationship

12. Any joint ownership of real estate or other major assets, any joint liabilities, the extent of any pooling of financial resources, whether one person in the relationship owes any legal obligation in respect of the other and the basis of any sharing of day-to-day household expenses are relevant factors to consider when assessing the financial aspects of the relationship.

13. There is no evidence before the Tribunal that the parties jointly own real estate or other major assets. There is some evidence of assets that are shared jointly, including a joint CBA account, which was opened on 13 June 2017. They also have a joint ANZ account for savings. When she first arrived, the applicant’s sponsor was paying for all the expenses because she wasn’t working. The applicant stated that she also has a share of the family business and a blueberry farm which gave her access to some funds that she has used to pay for food and expenses. They went to Thailand after she had been in Australia for three months, for which the sponsor paid the cost of travel and accommodation. However, she contributed to some of the travel costs like dinners and other expenses.

14. They have mutually nominated each other as beneficiaries of each other’s superannuation. She would like to leave the blueberry farm to her nephews because she inherited this from her mother. The applicant stated that they have tried to buy land together but have been unable to do this because of her lack of permanent residence, but they intend to purchase a property together. The home in which they live is in the sponsor’s name but he stated that it is for his children from his previous marriage. The sponsor confirmed that they looked at buying land together in St Leonards but could not do this due to the applicant’s visa status.

15. She started working in aged care on 24 July 2016 and pays her salary into the joint CBA account. Mr Brajkovic was working in demolition and was paid into his own account. She does not have access to this account. The applicant also has her own account in Colombia. The sponsor does not have access to this account. The applicant stated that the sponsor gave her money to deposit into the joint account. The bills are paid by both of them – the sponsor stated that they do not divide the costs but, rather, whoever has the bill pays.

16. There is limited evidence before the Tribunal that either person in the relationship owes any legal obligation in respect of the other. The applicant and the sponsor did not indicate to the Tribunal that they have wills.

17. With respect to any pooling of financial resources and any sharing of day-to-day household expenses, the applicant and the sponsor gave consistent and detailed evidence about their financial arrangements and how the arrangements had changed over time.

18. In the early stage of the applicant’s and the sponsor’s relationship in Australia, they lived in the sponsor’s home (as they continue to do). The sponsor stated that this living arrangement has continued and that the household expenses are paid by both of them but they are not following a particular pattern or division.

19. Both the applicant and the sponsor gave consistent oral evidence about their own and the other’s employment at the time of the hearing. The applicant and the sponsor gave consistent oral evidence about where each person’s income was paid. The applicant and sponsor explained that the payment of utility bills and food are not organised in a specific manner. The Tribunal finds that the parties have taken, and continue to take, a flexible approach to the payment of bills and other household expenses.

20. The Tribunal notes that the applicant submitted minimal documentary evidence in support of these claims. For example, she submitted some utility bills in the sponsor’s name. The Tribunal is not troubled by the lack of documentary evidence as it might be in another case. This is because the Tribunal found both parties’ oral evidence to be frank, honest and credible, and accepts their oral evidence. Accordingly, the Tribunal finds that, at both the time of application and at the time of this decision, the applicant and the sponsor pooled and pool their financial resources to some extent and shared and share their day-to-day household expenses.

21. The Tribunal gives some weight to the evidence of the financial aspects of the relationship.

    The nature of the household

22. Any joint responsibility for the care and support of children, the living arrangements of the persons and any sharing of the responsibility for housework are matters to be considered when assessing the nature of the household. There is no evidence before the Tribunal that the parties have any children together or are otherwise jointly responsible for the care and support of children.

23. Both the applicant and the sponsor gave consistent oral evidence that they commenced living together when the applicant arrived in Australia in the sponsor’s home.

24. They also gave consistent oral evidence about the sharing of the responsibility for housework, both at the time of application and at the present time. For example, they told the Tribunal that, at present, they both shop for groceries and that, most of the time, the applicant does the cooking. They both gave consistent evidence that they shared the cleaning of the house initially but that this has changed due to the sponsor’s workplace injury and reliance on the applicant. They both stated that they have students living at the house which they jointly supervise for maintaining the shared facilities such as the kitchen and bathroom.

25. The Tribunal gives weight to the evidence of the nature of the household.

    The social aspects of the relationship

26. Whether the persons represent themselves to other people as being in a de facto relationship with each other, the opinion of the persons’ friends and acquaintances about the nature of the relationship and any basis on which the persons plan and undertake joint social activities are relevant matters to be considered in determining the social aspects of the relationship.

27. The Tribunal has reviewed and considered the Form 888 statutory declarations that have been made by the sponsor’s friends and daughter in support of the relationship. The Tribunal notes that most of this evidence was before the delegate. The applicant did not submit any further statements from either party’s friends, or from their families, but did nominate his daughter to give evidence in support of the relationship. The Tribunal relied on the sponsor’s daughter’s previous statutory declarations. While in another case, a lack of additional contemporary evidence of the opinion of the persons’ families, friends and acquaintances about the nature of the relationship may trouble the Tribunal, it does not do so in this case. This is because, as noted earlier, the Tribunal found the applicant and the sponsor to be credible.

28. With respect to whether the persons represent themselves to other people as being in a de facto relationship with each other, the Tribunal notes and gives weight to the photos and joint social activities. The Tribunal also notes and gives weight to the evidence of holidays and day trips that the couple have taken together over the years.

29. In view of the evidence before the Tribunal, the Tribunal places weight on the evidence of the social and public recognition of the relationship.

    The nature of the persons’ commitment to each other

30. The duration of the relationship, the length of time during which the persons have lived together, the degree of companionship and emotional support that the persons draw from each other, and whether the persons see their relationship as long term are all aspects to be considered in determining the nature of the persons’ commitment to each other.

31. The Tribunal notes that the applicant and the sponsor each made relationship statements which are on the Tribunal’s file. The applicant stated that they have registered their relationship and a copy of the certificate has been provided on the Tribunal file. At the hearing, the parties provided a broadly consistent account of the inception and development of their relationship. The evidence before the Tribunal is that the parties have been in an exclusive and committed relationship for over five years, having first met in Colombia in 2013. The Tribunal gives weight to the evidence of the duration of the relationship as well as the length of time during which the persons have lived together.

32. With respect to the degree of companionship and emotional support that the persons draw from each other and whether the persons see their relationship as long term, the Tribunal notes the applicant’s oral evidence to the Tribunal where the applicant stated that they like to do things together and are always with each other. The applicant stated that while the relationship has ups and downs, consistent with other relationships, they support and care for each other. The sponsor stated that the relationship has ‘levelled his life’ and that he has someone to share his life and things. He sees their future together and they support each other.

33. The Tribunal notes that the applicant and the sponsor gave credible and consistent oral evidence at the hearing about all of these and related matters. Particularly, the Tribunal notes the support and care provided to the sponsor when he injured himself two and a half years ago at his workplace. Both parties gave evidence of the surgeries required to repair the injuries and the assistance with day-to-day activities he required which the applicant provided, including: showering, changing wound dressings; mobility; attending medical appointments and physiotherapy; and dressing. The Tribunal considers that this exemplifies their mutual companionship and emotional support. The Tribunal gives weight to all of this evidence.

34. The Tribunal has no reason to doubt the truthfulness of the evidence that has been submitted. Having considered all the evidence cumulatively, the Tribunal is satisfied that the applicant and the sponsor have demonstrated, and continue to demonstrate, a level of commitment to one another and to their de facto relationship as contemplated in the Regulations. The Tribunal gives great weight to the evidence of this factor.

    Conclusion on s.5CB(2) requirements

35. For the reasons given with respect to the r.1.09A(3) factors, the Tribunal is satisfied that both at the time of application and at the time of this decision, the applicant and the sponsor:

    ·were not and are not in a married relationship (for the purposes of s.5F of the Act) with each other;

    ·had and have a mutual commitment to a shared life to the exclusion of all others, as required by s.5CB(2)(a) of the Act;

    ·had and have a genuine and continuing relationship, as required by s.5CB(2)(b) of the Act; and

    ·lived and live together, as required by s.5CB(2)(c)(i) of the Act.

36. Section 5CB(2)(d) of the Act requires that the parties not be related by family. There is nothing in the information before the Tribunal to suggest that the parties are related by family. To the contrary, in her record of responses for the visa application that is on the Department’s file, the applicant declared that she is not related to the sponsor by blood, marriage or adoption. The Tribunal accepts the veracity of this statement and finds that the applicant and the sponsor are not related by family. Section 5CB(2)(d) of the Act is met.

37. On the basis of the above, the Tribunal is satisfied that the requirements of s.5CB(2) are met both at the time the visa application was made and at the time of this decision. Therefore, the applicant meets cl.820.211(2)(a)(i).

38. However, the de facto or spouse requirement in cl.820.211(2)(a)(i) is not the only requirement in cl.820.211(2) which must be satisfied.

    Time of application and time of decision requirements

39. The sponsorship requirements in cl.820.211(2)(a)(ii) and cl.820.211(2)(c) must also be satisfied, and, if the applicant was not the holder of a substantive visa at the time of application, then the requirements in cl.820.211(2)(d) must also be satisfied.

40. The Tribunal has reviewed documents on the Department’s hard copy file notes that the sponsorship for a partner to migrate to Australia form (Form 40SP) is included. Accordingly, the Tribunal is satisfied that the applicant is sponsored by Mr Brajkovic and that cl.820.211(2)(c)(i) is met and that Mr Brajkovic is not prohibited by cl.820.211(2B) from being a sponsoring partner. Accordingly, the Tribunal also finds that cl.820.211(2)(a)(ii) is met.

41. The applicant’s movement records evidence her as having been granted a Visitor (Class FA) Subclass 600 visa on 16 August 2015. She held this substantive visa upon applying for the Partner (Temporary) (Class UK) Subclass 820 visa on 13 February 2016. As the applicant held a substantive visa at the time of application, the further requirements in cl.820.211(2)(d) need not be met.

42. The Tribunal finds that the applicant meets the time of application requirements in cl.820.211(1) as she meets the requirements in cl.820.211(1)(a) and (b), the latter on the basis of meeting all the requirements in cl.820.211(2).

43. With respect to criteria to be satisfied at the time of decision, the Tribunal finds that the applicant continues to meet the requirements of cl.820.211(2) and so meets cl.820.221(1)(a).

44. The Tribunal finds that the applicant meets cl.820.211(1) and cl.820.221(1)(a) of Schedule 2 to the Regulations.

    Are the additional criteria for a de facto relationship met?

45. 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.

46. 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.

1. There is no evidence that the relationship is registered under a relevant State or Territory law or that the sponsor held, holds or is applying for a permanent humanitarian visa, so they must meet the 12-month requirement. In the relationship statement of the applicant that was filed with the Tribunal, the applicant explained that they met in September 2013 in Colombia. They travelled together and then continued to maintain contact via social media and phone calls. They decided to meet in Croatia for a couple of months to get to know each other in July 2014 and met both her family and the sponsor’s family. After the trip to Croatia, she went back to Colombia and applied for a visitor visa to come to Australia. Both the applicant and the sponsor’s evidence to the Tribunal was consistent that they were in a de facto relationship from when the visa was granted and she arrived in Australia on 16 August 2015. She stayed with Mr Brajkovic at his home and has been living there since arriving. At the hearing, they gave broadly consistent oral evidence about the inception and development of their relationship.

2. The applicant and the sponsor gave consistent oral evidence that they were living together in a partner relationship when the applicant arrived in Australia, which the Tribunal notes from her movement records was on 16 August 2015. They both said that there had been no gaps of time since that date when they had not lived together. The Tribunal found both parties to be highly credible witnesses so it accepts their evidence in this regard.

3. On the basis of the oral evidence before it, the Tribunal is satisfied that the applicant had been in the de facto relationship with the sponsor for at least the 12-month period ending immediately before the date of the application on 13 February 2016.

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

   CONCLUSION

5. 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

6. 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(1) of Schedule 2 to the Regulations

   ·cl.820.221(1)(a) of Schedule 2 to the Regulations

   ·r.2.03A.

   John Longo
   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).