Gamain (Migration)

[2019] AATA 1185

Gamain (Migration) [2019] AATA 1185 (22 January 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Teophile Gamain

CASE NUMBER:  1701626

DIBP REFERENCE(S):  CFL2013/94899

MEMBER:Amanda Mendes Da Costa

DATE:22 January 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Partner (Residence) (Class BS) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 801 (Partner) visa:

·cl.801.221(2) of Schedule 2 to the Regulations; and

·r.2.03A.

Statement made on 22 January 2019 at 2:02pm

CATCHWORDS

MIGRATION – Partner (Residence) (Class BS) visa – Subclass 801 (Partner) – continuing de facto relationship – living arrangements – sponsor stayed at parents’ apartment during weekdays to pursue studies – not intended to be permanent arrangement – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), ss 5CB, 65
Migration Regulations 1994 (Cth), rr 1.09A, 2.03A; Schedule 2, cl 801.221

CASES

He v MIBP [2017] FCAFC 206

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

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 on 4 January 2017 to refuse to grant the applicant a Partner (Residence) (Class BS) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 2 May 2013 on the basis of his relationship with his sponsor. At that time, Class BS contained only one subclass: Subclass 801 (Partner). The criteria for the grant of this visa are set out in Part 801 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 applicant did not satisfy cl.801.221 because the delegate was not satisfied that the evidence showed that the applicant continued to be the spouse or de facto partner of the sponsor.

4. The applicant seeks review of the delegate’s decision and for that purpose, provided the Tribunal with a copy of the primary decision.

5. The applicant appeared before the Tribunal on 18 January 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor, Jessica McColl.

6. The Tribunal notes that on 22 December 2014 the applicant was granted a Subclass 820 visa.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether at the time of this decision, the applicant is the spouse or de facto partner of the sponsoring partner for the purposes of the Act: cl.801.221(2)(c).  The Tribunal notes that the applicant was granted a Subclass 820 partner visa on 22 December 2014.

   Whether the parties are in a spouse or de facto relationship

9. Relevantly to this matter, cl.801.221(2)(c) requires that at the time of this decision, the applicant is the spouse or de facto partner of the sponsoring partner, who must be an Australian citizen or Australian permanent resident or an eligible New Zealand citizen who was specified in the Subclass 801 visa application as the spouse or de facto partner of the applicant. In the present case the applicant claims to be the de facto partner of the sponsor who is an Australian citizen by birth and was identified in the related Subclass 820 visa application. On the evidence before it (including a copy of the bio-pages of the sponsor’s Australian passport), the Tribunal is satisfied that the sponsor is the ‘sponsoring partner’ of the applicant.

   Are the parties in a de facto relationship?

10. ‘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).

11. 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.

    The financial aspects of the relationship

12. The Tribunal is required to consider all the circumstances of the financial aspects of the relationship.

13. The applicant did not provide the Tribunal with documentation regarding the financial aspects of the relationship.  He told the Tribunal that he and Ms McColl had never held a joint bank account together.  In answer to a question by the Tribunal about the reason for this, he said that they had never seen reasons for opening a joint account as they shared any household expenses and in any event had very limited savings between them.

14. The applicant and sponsor are employed on a casual and part-time basis respectively.  Their modest wages are deposited into their own bank accounts.

15. The parties told the Tribunal that they have shared household expenses, motor vehicle expenses and rental payments throughout their relationship.  The applicant is currently living in two caravans purchased by the couple which are situated on a farm in Ocean Grove.  They pay no ground rent or utility bills to the owner of the property as the applicant provides his labour to assist with farm tasks in lieu of rent.  The sponsor lives part of the week at an apartment owned by her parents for which she pays no rent, and spends the weekends with the applicant at Ocean Grove.  The parties have no utility accounts in either their own or joint names.

16. The parties pay for their own food and personal expenses from Monday to Friday and share those expenses on the weekend.  All major purchases and expenses such as motor vehicle registration, the purchase of the caravans and household items, such as a refrigerator, are shared by the couple.

17. The applicant and sponsor own no real estate (either separately or together) and have minimal savings.  They each own a motor vehicle and share the ownership of the caravans and their contents.  The parties do not owe any legal obligation in respect of the other.

18. Although the Tribunal accepts that the parties’ financial arrangements reflect their living arrangements and limited financial resources, it attaches limited weight to the financial aspects of the relationship.

    Nature of the household

19. Any joint responsibility for the care and support of children, the living arrangements of the parties and any sharing of the responsibility for housework are matters to be considered when assessing the nature of the household.

20. The parties have no children and therefore the Tribunal finds that they have no joint responsibility for the care and support of children.  The Tribunal is satisfied that they have lived together in various rental properties and from time to time at the home of the sponsor’s parents in the Geelong area.  For the past two years the applicant has been living in two caravans, purchased by the parties and situated on a farm in Ocean Grove.  The sponsor lives in Melbourne on weekdays and shares the caravans with the applicant on weekends.  During the time that the parties lived together and in rental properties they shared the responsibility for housework, home maintenance and gardening.  They both enjoy cooking and have shared this task.  Since moving to Ocean Grove, the parties care for themselves from Monday to Friday and continue to share household, shopping and cooking on the weekends.  They have also continued to share responsibility for making decisions about purchases for their caravan home and payment of expenses associated with their motor vehicles.  The Tribunal notes that the sponsor keeps most of her belongings in one of the caravans at Ocean Grove.

21. Accordingly, the Tribunal attaches significant weight to the household aspects of the relationship.

    The social aspects of the relationship

22. Whether the persons represent themselves to other people as being in a de facto relationship together, 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.

23. The parties live together each weekend, mostly at their caravans in Ocean Grove or at the sponsor’s apartment in Melbourne.  They also attend family functions all the time with the sponsor’s parents and siblings, including Christmas, family birthday celebrations and family dinners.  The Tribunal notes that the applicant provided it with statutory declarations from the sponsor’s parents and siblings.  Although these statements were declared some years ago, the Tribunal is satisfied by the parties’ evidence that they continue to have regular contact with the sponsor’s family and continue to be regarded by them as being in a de facto relationship.  They also entertain friends at their caravans in Ocean Grove and when in Melbourne visit bars and restaurants with the sponsor’s sister (who shares the sponsor’s apartment).

24. The Tribunal further notes that during the course of their relationship, the parties have made two visits to the applicant’s family in France, staying with the applicant’s parents for three months during the first visit and for several weeks during the second visit.  The Tribunal also accepts that the applicant’s brother and cousin have visited the parties in Australia and spent time with them.

25. The Tribunal has been provided with numerous photographs of the couple’s social life with friends and members of the sponsor’s family.  The photographs provided show the applicant and sponsor together and/or with others in a range of social settings and appear spontaneous and casual.

26. On the basis of the evidence before it, the Tribunal finds that the parties represent themselves to others as being in a de facto relationship, and that the couple plan and undertake joint social activities.  The Tribunal also finds that the relationship is viewed as genuine and continuing in the opinion of the couple’s friends and family.

    The nature of the persons’ commitment to each other

27. 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 the relationship as a long term one are all aspects to be considered in determining the nature of the persons’ commitment to each other.

28. The parties met in Tokyo, Japan on 24 December 2010.  The applicant was living there and working as an au pair for a French family.  The sponsor was visiting and working as a model.  They met in a bar and afterwards contacted each other via Facebook.  On 1 January 2011 they went on their first ‘date’ in Tokyo.  After the sponsor returned to Australia they continued to communicate via social media sites and telephone.  In August 2011 the applicant arrived in Australia and the parties commenced living together.

29. The sponsor told the Tribunal that she was aware at first meeting the applicant that he was her intended life partner and that she loved him from the beginning.  In his evidence, the applicant was more equivocal about his intentions when he arrived in Australia.  He certainly intended to live with the sponsor and continue their relationship but was initially less certain about whether the relationship would become a permanent one.  In any event the Tribunal is satisfied that from late 2011 the applicant was as committed to the relationship as the sponsor and that they have continued in a genuine de facto relationship since that time.

30. Despite a short period of difficulty in their relationship some years ago, the parties have remained together with no periods of separation.  The Tribunal acknowledges that for the past 12–18 months the applicant has been living on a full time basis in Ocean Grove and the sponsor has been living with him on weekends and spending Monday-Friday either living with her parents or in their apartment in Melbourne.  This has enabled her to pursue her studies in law.

31. The Tribunal accepts that the sponsor’s principal home is with the applicant at Ocean Grove where she spends a significant amount of time and where most of her belongings are located.  The Tribunal further notes that the sponsor has weekend employment in Point Lonsdale and that, apart from family, the couple’s friends and social life are centred around the Bellarine Peninsula.

32. The sponsor told the Tribunal that once she graduates from her studies in July 2019 she intends to seek employment as a lawyer in Geelong or on the Bellarine Peninsula.  The couple also have plans for the sponsor to live on a full time basis at Ocean Grove with the parties eventually buying a block of land in the area and building their own home.  The Tribunal accepts the evidence of the applicant that he is currently in the process of building a bathroom at the property at Ocean Grove for himself and the sponsor, in preparation for her moving in on a full time basis.

33. The Tribunal is satisfied that although the sponsor is staying at her parents’ apartment for some part of each week, while she is studying, it is not intended by the parties to be a permanent arrangement and that the parties are not living separately and apart on a permanent basis.

34. Based on the evidence before it, the Tribunal is satisfied that the applicant and sponsor have lived together (and not separately and apart) since the applicant arrived in Australia in August 2011. The Tribunal finds that the parties draw on each other for a significant degree of companionship and emotional support, and that they view their relationship as a long term one.  The Tribunal is therefore satisfied that the nature of the parties’ commitment to each other attests to the genuine and continuing de facto relationship between the parties.

35. The Tribunal is satisfied that the parties are not related to each other by family.

36. On the basis of the above the Tribunal is satisfied that the requirements of s.5CB(2) are met at the time of this decision. Therefore, the applicant meets cl.801.221(2)(c).

    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). The Tribunal notes that the applicant was born [in] 1990 and the sponsor was born [in] 1989.  Accordingly the Tribunal finds that 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. The Tribunal accepts the evidence of the applicant and sponsor that they have been in a de facto relationship since August 2011.  Accordingly, the Tribunal is satisfied that the applicant had been in the de facto relationship for at least the 12 month period ending immediately before the date of the application.

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

41. 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 801 visa.

    DECISION

42. The Tribunal remits the application for a Partner (Residence) (Class BS) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 801 (Partner) visa:

    ·cl.801.221(2) of Schedule 2 to the Regulations; and

    ·r.2.03A.

    Amanda Mendes Da Costa
    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).