Fu (Migration)

[2018] AATA 988

Fu (Migration) [2018] AATA 988 (21 March 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Kung-ju Fu

CASE NUMBER:  1700100

DIBP REFERENCE(S):  BCC2015/2755794

MEMBER:Paul Maishman

DATE:21 March 2018

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 (Temporary)) visa:

·cl.820.211(2)(a) of Schedule 2 to the Regulations

·cl.820.221 of Schedule 2 to the Regulations

·r.2.03A

Statement made on 21 March 2018 at 2:08pm

CATCHWORDS
Migration – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner (Temporary)) - Whether the applicant is in a genuine de facto relationship with the sponsor – Joint finances – Social aspects of relationship consistent with genuine de facto relationship – Whether relationship has been ongoing for at least 12 months – Relationship has been ongoing for more than 12 months

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision of a delegate of the Minister for Immigration on 20 December 2016 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 21 September 2015 on the basis of his relationship with his sponsor. At that time, Class UK contained only one subclass: Subclass 820 (Partner (Temporary)). 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.

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 there was sufficient evidence to demonstrate that the visa applicant was the spouse or de facto partner of the sponsor.

4. The applicant appeared before the Tribunal on 12 March 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor, Mr Barry White, and witness Ms Beverly Milward. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

5. Substantially more information was available to the Tribunal than was before the delegate.

6. The applicant was represented in relation to the review by his registered migration agent Mr John Galloway.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The applicant is a 32-year-old male born in, and a citizen of, Taiwan. The sponsor is a 70-year-old Australian male. The applicant and sponsor claim to have met on 3 August 2013 and commenced a committed de facto relationship on 19 October 2013. The current visa application was lodged on 21 September 2015.

9. The issue in the present case is whether the parties are in a de facto relationship and whether that relationship existed for 12 months prior to the date of application.

   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. As the parties are not married to each other under a marriage that is valid for the purposes of the Act, they cannot satisfy an essential requirement of a spouse relationship, but may meet the criteria on the basis of being in a de facto relationship as defined in s.5CB of the Act. 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 r.1.09A(3) which is attached to this decision.

13. In assessing these issues the Tribunal has considered all documents on the Department’s file, the Tribunal’s files and the oral evidence given at the hearing.

14. The Tribunal considered the financial aspects of the relationship.

15. The applicant gave evidence that he had bought a car, the Mitsubishi Triton. The sponsor owns a collectible car, a Cadillac, which is too big for him to drive. The sponsor also has a vehicle for his business. The parties gave evidence that each is free to use the other’s vehicle at any time. Both parties gave evidence that they don’t directly hold joint bank accounts as it is easy enough to transfer funds from one account to another as needs be. The parties were consistent in their evidence that the sponsor pays the rent and the applicant purchases groceries and does the cooking. The parties evidence indicated they were reasonably fluid in their approach to the day-to-day sharing of expenses, paying for each other when either had the means.

16. The applicant’s Kinetic Superannuation account nominates the sponsor is a beneficiary and interdependent relation. The sponsor has adjusted his will to bequeath the whole of his estate to the applicant.

17. The Tribunal is satisfied that the financial arrangement of the applicant and sponsor is that expected between people in a de facto relationship.

18. The Tribunal considered the nature of the household.

19. The parties were consistent in their evidence about their sleeping arrangements, and arrangements for undertaking household duties.

20. The parties share responsibility for the running of the house with the applicant doing the cooking and the sponsor doing most of the laundry and cleaning.

21. The Tribunal is satisfied that the household arrangements are indicative of that expected between people in a de facto relationship.

22. The Tribunal considered the social aspects of the relationship.

23. The applicant gave evidence that he had not told his family about his relationship and that he doesn’t talk to them very much. The sponsor gave evidence that he had not met the applicant’s family, however the applicant’s father helped out with the purchase of the applicant’s vehicle.

24. Both party’s evidence was that the sponsor’s family were all fully aware and supportive of the relationship. The sponsor gave evidence that the applicant and helped him look after his elderly mother and cousin for a time and they were fully aware of the applicant and sponsors relationship. The sponsor’s sister Ms Milward, gave compelling evidence that the applicant had become a part of the sponsor’s extended family.

25. The applicant provided a number of statutory declarations to the Tribunal from Christina Leao, Amanda Hall and Steven Hall each supporting the existence of a relationship going back a number of years.

26. They enjoyed each other’s company, socialised together frequently with the sponsor’s family, enjoyed the casino theatre shows and concerts together, and walking the dog and swimming together.

27. The parties were frank in their evidence that they were not overtly affectionate in public. They did not however hide their relationship in any way. Both parties expressed that their friends, family and work colleagues would be familiar with their relationship because the relationship had not been anything other than what it was.

28. The Tribunal is satisfied that the social aspect of the relationship is that expected between people in a de facto relationship.

29. The Tribunal considered the nature of the party’s commitment to each other.

30. The parties both gave evidence that they were largely free to come and go as they pleased. There was no compulsion on either party to participate in the other’s activities.

31. Both parties gave evidence that they had been together for a long time and are very compatible. They enjoyed each other’s company and companionship.

32. The parties maintain separate interests and hobbies and find it very easy to live together.

33. Both parties are in good health and plan to undertake extensive travel in the future.

34. The Tribunal is satisfied that the parties are committed to each other as expected from a couple in a de facto relationship.

35. The parties are not related by family. The Tribunal is satisfied that at the time the application was made and at the time of this decision the applicant and the sponsor had a mutual commitment to a shared life to the exclusion of all others, that their relationship is genuine and continuing and that at the time of the application they did not live separately and apart on a permanent basis while at the time of this decision, they live together.

36. On the basis of the above the Tribunal is satisfied that the requirements of s.5CB(2) are met at the time of application and decision.

    Are the additional criteria for a de facto relationship met?

37. 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.

38. 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.

39. 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 this application the Tribunal must be satisfied that the parties were in a de facto relationship since at least 20 September 2014.

40. The Tribunal found the parties oral evidence to be consistent, credible and convincing.

41. The parties gave evidence they first met in around August 2013. By around October 2013 the applicant moved into the sponsors accommodation, attached to his bed-and-breakfast business. The parties approach to their finances has always been fluid with either paying depending on their means at the time. They have continued to share the household chores, with the applicant doing the shopping and cooking and the sponsor predominantly doing the cleaning. The only absence the applicant has had was for a couple of months from May to 2014 while he travelled around the eastern states. The parties kept their relationship going with frequent phone and SMS contact.

42. The applicant gave oral evidence that he assisted the sponsor with the running of the bed-and-breakfast business in small ways but did not work there. As a symbol of their ongoing commitment to one another they purchased a dog in around August 2014 for which they both remain responsible.

43. Accordingly, the Tribunal is satisfied that the applicant had been in the de facto relationship for 12 months prior to the date of the application.

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

45. 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

46. 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)(a) of Schedule 2 to the Regulations

    ·cl.820.221 of Schedule 2 to the Regulations

    ·r.2.03A

    Paul 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).