Gilbert (Migration)

[2019] AATA 3692

Gilbert (Migration) [2019] AATA 3692 (28 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Eva Gilbert

VISA APPLICANT:  Mr Darren William Simkins

CASE NUMBER:  1723923

DIBP REFERENCE(S):  BCC2017/1077296

MEMBER:Peter Smith

DATE:28 June 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Partner (Provisional) (Class UF) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 309 (Partner (Provisional)) visa:

·cl.309.211 of Schedule 2 to the Regulations;

·cl.309.221 of Schedule 2 to the Regulations; and

·r.2.03A of the Regulations.

Statement made on 28 June 2019 at 10:46am

CATCHWORDS

MIGRATION – Partner (Provisional) (Class UF) – Subclass 309 (Spouse (Provisional)) – genuine de facto relationship – oral evidence – genuine and ongoing – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), ss 5CB, 65
Migration Regulations 1994 (Cth), Schedule 2 cls 309.211, 309.221, rr 1.09A, 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 (the Minister) on 9 August 2017 to refuse to grant a Partner (Provisional) (Class UF) visa under s.65 of the Migration Act 1958 (Cth) (the Act).

2. Darren William Simkins (the visa applicant), a citizen of the United Kingdom, born on 27 April 1963, made a valid application to the Minister on 20 March 2017 for the grant of a Partner (Provisional) (Class UF) visa and a Partner (Migrant) (Class BC) visa in which he claimed to be the de facto partner of an Australian citizen, namely the review applicant and his sponsoring partner, Eva Gilbert who was born on 22 August 1960.

3. The visa application was considered at the Department of Immigration and Border Protection (the Department) by a delegate of the Minister. The Minister’s delegate decided under s.65 of the Act to refuse to grant the visa applicant a Partner (Provisional) (Class UF) visa because she was not satisfied that the visa applicant was the de facto partner of an Australian citizen for the purposes of s.5CB of the Act and cl.309.211(2) and (3) of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). The Minister’s delegate was also not satisfied that the visa applicant had established the matters under reg.1.09A of the Regulations, including the financial aspects of the parties relationship, the nature of the parties household, the social aspects of the parties relationship and the nature of the parties commitment to each other.

4. The review applicant made an application to the Administrative Appeals Tribunal (the Tribunal) on 4 October 2017 for a review of the delegate’s decision.  Included with her application is a copy of the delegate’s Decision Record, dated 9 August 2017.

5. The application for review was heard by the Tribunal on 29 May 2019.  At the hearing the review applicant gave oral evidence and presented arguments in support of her application.  The review applicant was unrepresented at the hearing.  Felix Sam Salib, a witness in support of the application participated in the proceedings by giving his evidence by telephone.  A further witness, Christine Patricia Rutherford could not be reached by on the day of the hearing.  Leave was granted for Ms Rutherford to give her evidence by way of statutory declaration which was received on 11 June 2019.  The visa applicant gave his evidence by telephone from the United Kingdom. 

6. The Tribunal notes from the Department’s file which was lodged with the Tribunal on 27 October 2017 that Mr Saliba and Ms Rutherford had each provided supporting statutory declarations in 2017 at the time of visa application.

7. For the reasons given, the Tribunal has concluded that the application should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The application made to the Minister on 20 March 2017 was for the grant of a Partner (Provisional) (Class UF) visa and a Partner (Migrant) (Class BC) visa.  An application for the grant of a Partner (Provisional) (Class UF) visa is taken to be an application for the grant of a Partner (Migrant) (Class BC) visa.  The application process is divided into two stages.  In the first stage of the process, a provisional or temporary visa can be granted for a period of up to two years based on the parties’ relationship.  After this two year period, the relationship is reconsidered and a permanent visa can be granted if, among other things, the relationship is found to be genuine and continuing.

9. At the time of making his application, Item 1220A of Schedule 1 to the Regulations provided for the grant of a Partner (Provisional) (Class UF) visa and for one subclass of visa called a subclass 309(Partner (Provisional)).  At the time of making his application, Part 309 of Schedule 2 to the Regulations prescribed the criteria to be met by the visa applicant, both at the time of visa application, and at the time of decision. Clause 309.21 of Schedule 2 to the Regulations provides that 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.

   Is the visa applicant the spouse or de facto partner of the review applicant?

10. Clause 309.211 provides that In partner visa applications, the question for the Tribunal on review is to determine whether, at the time of application and at the time of this decision, the visa applicant is the spouse or de facto partner of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen for the purposes of cl.309.211 and subclause 309.221 of Schedule 2 to the Regulations.  In the present case the visa applicant claims to be the de facto partner of an Australian citizen, namely the review applicant.

11. The Tribunal relies on the evidence on the Department’s file which contains a certified copy of the review applicant’s Birth Certificate.  The Birth Certificate was issued by the Registrar of  New South Wales Births, Deaths and Marriages on 11 April 2002 pursuant to the Births, Deaths and Marriages Registration Act 1995 (NSW) (the BDMR Act). The Birth Certificate records the review applicant’s place of birth as Wollongong, New South Wales.

12. Also on the Department’s file is a certified copy of a Change of Name Certificate in respect of the review applicant. The Change of Name Certificate was issued by the Registrar of New South Wales Births, Deaths and Marriages on 14 September 2005 pursuant to the BDMR Act. The Change of Name Certificate records the review applicant’s former registered birth name as ‘Eugenia Samaras’. The Change of Name Certificate also records that the review applicant’s former registered birth name was changed and on 14 September 2005 the Register maintained by the Registry of the Births, Deaths and Marriages was amended to record the review applicant’s change of name to ‘Eva Gilbert’.

13. The review applicant claimed to have previously been married to another person.  The review applicant told the Tribunal that she was married to her former husband on 25 May 1991.  The review applicant told the Tribunal that her marriage to her former husband was dissolved on 23 August 2010 by an order made by a Registrar of the Federal Magistrates Court of Australia (as the Court was then known) on 22 July 2010.   This is supported by the sealed copy of the divorce order. There are two children from the review applicant’s former marriage, namely her daughter who was born in July 1993, and her son who was born in July 1995, both of whom live with the review applicant at her home. 

14. The visa applicant claimed never to have been married previously to any other person.  He has a daughter who was born in April 1988.  She is presently 31 years of age and lives with her partner in the United Kingdom and is not dependent on the visa applicant.  The visa applicant told the Tribunal that he raised his daughter as a single parent due to difficulties with his daughter’s mother. 

    Are the parties in a de facto relationship?

15. The term ‘de facto partner is a defined term in s.5CB of the Act.  Relevantly, it 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).

16. In forming an opinion whether the parties 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 visa applicant’s and review applicant’s 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 questions which must be answered: He v MIBP [2017] FCAFC 206.

    CONSIDERATION OF CLAIMS AND EVIDENCE

17. In conducting this review the Tribunal has had regard to the evidence held on file by the Department in respect of the visa application and its own file and the oral evidence taken from the parties and their supporting witness.

18. The parties claimed to have first met each other in person at a party at Crows Nest on 4 November 1986.  The visa applicant had been living and working in Australia on a 12 month working visa.  The working visa expired in 1987.  The parties claimed to have dated each other for a short time before a relationship between them ensued thereafter.   When the visa applicant left Australian in May 2017 the parties claimed that the review applicant also went to live with the visa applicant and his parents in the United Kingdom until 1988 when the parties decided to end their relationship and part ways.  The review applicant returned to Australia and in late 2010 made telephone contact with the visa applicant.

    Are the additional criteria for a de facto relationship met?

19. 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).  

20. The documents cited and referred to at paras [11] to [12] above record the review applicant’s date of birth to be 22 August 1960.  At the time of visa application the review applicant was 56 years of age.  Presently the review applicant is 58 years of age.

21. The Department’s file also contains a certified copy of the visa applicant’s Birth Certificate which was issued by the General Register Office in West Ham on 23 January 2017.  The Birth Certificate records the visa applicant’s date of birth to be 27 April 1963.  At the time of visa application the visa applicant was 54 years of age.  Presently the visa applicant is 56 years of age.

22. Based on the evidence referred to at para [21] above, I am satisfied, for the purposes of r.2.03A(2)(a) of the Regulations that the visa applicant was at the time of application and at the time of this decision, over 18 years of age. 

23. Based on the evidence referred to at para [20] above, I am satisfied, for the purposes of r.2.03A(2)(b) that the review applicant was at the time of application and at the time of this decision, over 18 years of age.

24. The visa applicant must also 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.

25. In the present case the Tribunal has not been provided with any evidence that the parties’ relationship is registered under a relevant State or Territory law or that the review applicant held, holds or is applying for a permanent humanitarian visa, so they must meet the 12- month requirement.

26. The parties claimed to have commenced a de facto relationship with each other on 23 April 2011. The visa application was made on 20 March 2017.  After hearing the oral evidence from both parties and their supporting witness the Tribunal is satisfied that the visa applicant had been in the de facto relationship for at least the 12- month period ending immediately before the date of the application.

27. Therefore, the Tribunal is satisfied that the visa applicant meets the additional criteria prescribed in r.2.03A of the Regulations.

    Financial aspects of the parties’ relationship

28. The parties gave evidence that when they have shared households they have shared in day to day expenses.  Apart from these periods there is no evidence that the parties have pooled or shared their financial resources especially in relation to major financial commitments.  

29. There is no evidence before the Tribunal that the parties jointly own real estate or other major assets and do not have any joint liabilities. There is no evidence before the Tribunal that the parties have pooled or shared their financial resources especially in relation to major financial commitments.  Finally, there is no evidence that either party to the relationship owes any legal obligation in respect of the other. 

30. The parties did however give oral evidence at the hearing that they have had discussions with each other about making a joint purchase of real estate in Australia such as a home in which they would live together.  The parties told the Tribunal that they have also discussed selling the visa applicant’s home in the United Kingdom and using the proceeds of the sale of that property towards their future in Australia.    

31. In considering this factor I appreciate the practical difficulties that can arise in circumstances where parties to a relationship live in separate households in different countries.  However, I also have regard to the fact that it is not uncommon for parties to a relationship to not share their financial resources.

32. I therefore give this factor some weight in my assessment.

    Nature of the parties’ household

33. In considering this factor I have regard to the nature of the household of the parties, including whether the parties have any joint responsibility for the care and support of children, the living arrangements of the parties, and any sharing of the responsibility for housework.

34. To the extent that this factor is relevant in the present case, neither party has any joint responsibility for the care and support of children.  The Tribunal notes that both parties have children from previous relationships.  The review applicant told the Tribunal that despite her two children being members of her household they are not in any way dependent on her.  The visa applicant told the Tribunal that his daughter lives with her partner in the United Kingdom.  Accordingly, I am satisfied that the parties do not have any joint responsibility for the care and support of children.

35. In relation to the living arrangements of the parties, the Tribunal notes that for the most part of the parties’ relationship they have lived in separate households however this is because they live in separate countries. 

36. There is evidence that the parties have since the inception of their relationship, namely since April 2011, established a shared household both in Australia and in the United Kingdom.  There is evidence that they shared households together.  The parties told the Tribunal that they share the same bedroom and share their households with other members of the review applicant’s family and also socialise with friends and family.

37. Accordingly, the Tribunal is satisfied that the parties do not live separately and apart on a permanent basis.

38. In relation to the sharing of the responsibility for any housework, the Tribunal accepts the consistent oral evidence given by each of the parties at the hearing that during periods of cohabitation the parties share in the responsibility of the grocery shopping, the preparation and cooking of meals and cleaning, gardening and washing clothes. 

    Social aspects of the parties’ relationship

39. In considering the social aspects of the parties’ relationship I have also considered whether the parties 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.

40. At the hearing the parties told the Tribunal that they represent themselves to other people as being in a de facto relationship and have done so since 23 April 2011.  They told the Tribunal that their friends and acquaintances consider them to be in a de facto relationship that is genuine and ongoing. 

41. There is evidence from Ms Rutherford who believes that the parties are in a genuine de facto relationship.  Ms Rutherford is a friend of the review applicant.  She deposes in her statutory declaration that she met the visa applicant in 2012 when the visa applicant was visiting the review applicant.  Ms Rutherford deposes that on each occasion the visa applicant has visited the review applicant she and other friends have socialised with him.  She deposes further that the parties are very close and that the review applicant is in daily contact with the visa applicant.

42. The Tribunal did not have the benefit of hearing oral evidence from Ms Rutherford at the hearing however it did have the benefit of hearing oral evidence from Mr Salib.  The Tribunal found Mr Salib to be a reliable and truthful witness who gave clear and direct answers to the questions he was asked.

43. Mr Salib is a friend and work colleague of the review applicant.  He said that he has known the review applicant since 2003.  He said that he has known the visa applicant since approximately April 2011.

44. Mr Salib told the Tribunal that he and the visa applicant have developed a friendship since April 2011.  Mr Salib gave evidence that each time the visa applicant visits the review applicant he stays with her at her home. 

45. He told the Tribunal that each time the visa applicant visits Australia he has been invited to socialise with the parties.

46. Mr Salib told the Tribunal that he has had discussions with both parties about the nature of their relationship including discussions about the parties getting married to each other. 

47. As the evidence of Mr Salib relates to an extensive period of time the Tribunal gives it significant weight.

48. I also take into account the photographs of the parties and the photographs taken of the parties with friends and family including the review applicant’s two children.

49. In respect of the planning and undertaking of joint social activities the Tribunal accepts the oral evidence of the parties that they have each year since April 2011 consistently planned and undertaken a range of social activities together.  The parties gave evidence before the Tribunal that when they visit each other twice each year they undertake short trips within and around Australia and/or within and outside of the United Kingdom either together or with friends and family.

    Nature of the parties’ commitment to each other

50. In considering the nature of the parties’ commitment to each other I have also considered 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.

51. The Tribunal is satisfied from the oral evidence it has received from the parties that they have been in a de facto relationship with each other since 23 April 2011. 

1. Despite some of the difficulties the parties faced during the early stage of their relationship, namely the review applicant’s parental responsibilities to her two children (then aged 17 and 15 respectively), the parties have other than in 2017 (when the visa application was being considered) maintained a mutual commitment to one another by visiting each other twice each year since the inception of their relationship in April 2011.

2. As for the degree of companionship and emotional support the parties draw from each other, the Tribunal notes and accepts the parties’ oral evidence and the evidence of email exchanges that they seek companionship and emotional support from each other daily by staying in touch by email and Skype. 

3. In relation to whether the parties see their relationship as a long term one, the Tribunal is satisfied from the oral evidence it has received from the parties that they see their relationship as a long-term one.  In particular, there is oral evidence that the parties have had discussions about significant aspects of their relationship including marriage, jointly purchasing real estate in Australia that they can both live in as a couple and selling the visa applicant’s house in the United Kingdom and using the proceeds of the sale of the property towards their future together in Australia. 

4. The Tribunal is therefore satisfied based on the oral evidence of the parties that the parties are mutually committed to each other and that their relationship is genuine and ongoing.

   Any other circumstances of the relationship

5. On balance, the Tribunal is satisfied that the parties are in a de facto relationship.

   Whether the parties are related by family?

6. There is no evidence before the Tribunal to suggest that either party is related to the other by family.

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

8. Therefore, the visa applicant meets the criteria in cl.309.211 and cl.309.221. 

9. 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 309 visa.

   DECISION

10. The Tribunal remits the application for a Partner (Provisional) (Class UF) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 309 (Partner (Provisional)) visa:

    ·cl.309.211 of Schedule 2 to the Regulations;

    ·cl.309.221 of Schedule 2 to the Regulations; and

    ·r.2.03A of the Regulations.

    Peter Smith
    Member

    ATTACHMENT  -  Extract from Migration Regulations 1994

    1.09ADe 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).