Gonzalez (Migration)

[2021] AATA 1905

Gonzalez (Migration) [2021] AATA 1905 (4 May 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Lisa Marie Gonzalez

CASE NUMBER:  1910532

DIBP REFERENCE(S):  BCC2015/3960431

MEMBER:Christine Kannis

DATE:4 May 2021

PLACE OF DECISION:  Perth

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)(c) of Schedule 2 to the Regulations

Statement made on 04 May 2021 at 6:23am

CATCHWORDS

MIGRATION – Partner (Residence) (Class BS) visa – Subclass 801 (Partner) – genuine and continuing spouse relationship – financial arrangements for household expenses – joint rental tenancy – shared family and social events – joint holiday travel – emotional support during surgery – decision under review remitted           

LEGISLATION

Migration Act 1958, ss 5, 65, 359
Migration Regulations 1994, Schedule 2, cl 801.221; r 1.09

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 on 8 April 2019 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 20 December 2015 on the basis of her relationship with her sponsor, Mr Jason Thomas. 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).

3. The delegate refused to grant the visa on the basis that the applicant did not satisfy cl.801.221(2) which requires that an applicant is, at the time of decision, the spouse or the de facto partner of the sponsoring partner.

4. A copy of the Decision Record was submitted to the Tribunal by the review applicant for the purposes of the review.

5. The Tribunal wrote to the applicant on 9 March 2021 pursuant to s.359(2) of the Act and requested information pertaining to the r.1.09A (3) factors demonstrating that the applicant is the spouse or de facto partner of the sponsoring partner.

6. The applicant appeared before the Tribunal on 19 April 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. No claim has been made that the applicant and the sponsor are in a spousal relationship. The issue in the present case is whether the relationship between the applicant and the sponsor continues to meet the definition of de facto partner in s.5CB of the Act.

   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 related Subclass 820 visa application as the spouse or de facto partner of the applicant. In the present case the applicant claims to be the de facto of the sponsor who is an Australian citizen and was identified in the Subclass 820 visa application. On the evidence before it, the Tribunal is satisfied that the sponsor is the ‘sponsoring partner’ of the applicant.

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).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.

11. The Tribunal considered the r.1.09A(3) matters. At the commencement of the hearing the Tribunal informed the applicant notwithstanding the request in the s.359(2) letter, there was very limited documentary evidence regarding the r.1.09A(3) at the time of decision. The applicant told the Tribunal that she understood the time of decision was the time of the Department’s decision and therefore she had provided minimal current evidence. The Tribunal allowed the applicant additional time following the hearing to provide further evidence. The Tribunal records that the applicant and the sponsor each provided their evidence in a forthright and spontaneous manner.

    Financial aspects of the relationship

12. The Tribunal considered the evidence in relation to the financial aspects of the parties’ relationship including the joint ownership of assets, any joint liabilities, the extent of pooling of financial resources, any legal obligations owed to the other party and any sharing of day-to-day household expenses.

13. In a written statement dated 13 March 2021, the applicant said in March 2018 she and the sponsor opened a Westpac joint account. She said they gradually lessened the use of this account because of the uncertainty of whether she would be permitted to work in Australia and because “ throughout 2018 until April 2019, the future of our relationship felt like we were both stuck in a ‘holding pattern’ while waiting for a decision from the Department of Home Affairs”.  She said due to this uncertainty, and because the sponsor was the primary income earner, he continued accessing his Commonwealth bank account for business and all household expenses. She said although the sponsor’s income covered their household expenses like food, utilities, rent, internet etc, she assisted by managing payments for these items. She said in April 2019 she was advised that she was permitted to work and she chose to do part time housecleaning during the week.

14. At hearing the applicant told the Tribunal that her income is derived from her small cleaning business. She said the sponsor’s sources of income are from his work as a freelance cinematographer and jobseeker payment from Centrelink. She said the sponsor pays the rent, she pays the utilities and they jointly pay for groceries. The sponsor gave generally consistent evidence in this regard.

15. The applicant and the sponsor do not have any joint assets or joint liabilities. The sponsor told the Tribunal that because of the applicant’s uncertain future visa status, they have not acquired joint assets. He said this was also the reason for not having an active joint bank account. The applicant’s uncertain visa status does not, in the Tribunal’s view, provide a reason for not having a joint account however it accepts that couples can choose whether or not to use a joint account and this matter is not in itself determinative of their financial relationship.

16. The Tribunal accepts that there is a degree of joint pooling of financial resources and sharing of day-to-day expenses. The Tribunal decided that these are indicators of a de facto relationship at the time of decision.  

    Nature of the household

17. The Tribunal considered the evidence in relation to the nature of the household including any joint responsibility for care and support of children, the parties’ living arrangements and any sharing of housework.

18. A Residential Tenancy Agreement for a property at Railway Road, Subiaco WA (Railway Road) was provided. The document indicates that the applicant and the sponsor leased the property from 24 July 2020 to 23 July 2021. Correspondence dated in February 2021 and March 2021 addressed to the applicant and the sponsor individually at Railway Road was provided to the Tribunal.

19. The applicant told the Tribunal that she and the sponsor hope to renew their lease for Railway Road for a further term.

20. In a written statement dated 13 March 2021, the applicant said she and the sponsor currently reside at Railway Road, Subiaco WA. She said they have resided there since July 2020. She said they do the main food shopping together, usually at Coles supermarket.

21. The applicant told the Tribunal that she is responsible for the cleaning and laundry and the sponsor does most of the cooking and is responsible for the outdoor area. She said they do the shopping together. The sponsor gave consistent evidence in this regard.

22. The Tribunal finds that the applicant and the sponsor are joint lessees of Railway Road accommodation at the time of decision. The Tribunal finds that the nature of the household of the applicant and the sponsor at the time of decision is an indicator of a genuine and continuing de facto relationship.

    Social aspects of the relationship

23. The Tribunal considered the evidence in relation to the 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.

24. In a written statement dated 13 March 2021, the applicant said she and the sponsor share birthdays, Christmas celebrations and holidays with friends. She referred to photos showing them eating ice creams with the Kendrick family and a Christmas celebration at Jan’s house. She said in July 2019 she and the sponsor holidayed together in Bali. She said she accompanied the sponsor to Albany and Denmark in March 2019 when he was working filming part of the Perth Festival 2019.  The applicant also said:

    One aspect to our social lives Jason and I enjoyed immensely and still enjoy is spending time alone together. These occasions (during the time of decision in 2019 and now in 2021) we most enjoy are typified by a train trip to Fremantle where we would have dinner together at one of our favourite restaurants like, Pizza Bella Roma. We would walk from our house in Claremont to get a morning coffee from a local cafe, Archie and Max.

25. Prior to the hearing several photos were provided. One photo of the parties together was described as “Photo Bali”. Two photos were described as “Photo Social Christmas”. One of these photos was of the sponsor alone and the other photo showed five people in what appeared to be a garden setting. Other photos provided included photos described as showing a garden, garden veggies, daybed and fireplace. The photos provided did not show the applicant and the sponsor socialising with other people and the Tribunal gives them no weight.

26. Following the hearing the applicant provided several photos noted to be taken in 2020. Only one of the photos showed the parties with other people. This photo was indicated to have been taken on Christmas Day 2020 and shows the parties with Shane Kendrick and Joanne Kendrick. The other photos of the applicant and the sponsor are indicated to have been taken on Rottnest Island and at City Beach. The Tribunal accords the photos taken in 2020, and in particular the Christmas Day 2020 photo, some weight.

27. A statutory declaration dated 18 March 2021 made by Mr Shane Kendrick was provided. Mr Kendrick said he had known the applicant and the sponsor to have been in a harmoniously committed and genuine relationship for the past three years. He did not provide reasons for this belief and the other information provided in the statutory declaration attested to the applicant’s good character. The Tribunal accords this evidence minimal weight.

28. A written statement dated 17 March 2021 made by the sponsor’s mother, Mrs Susanne Thomas was provided. Mrs Thomas said she first met the applicant in 2016. She said since that time she has watched the parties’ relationship grow. Mrs Thomas said she was writing the statement as evidence of a past and ongoing relationship between the sponsor and the applicant. The Tribunal gives this evidence some weight.

29. At hearing the applicant told the Tribunal that she has a cordial relationship with the sponsor’s two adult children from a previous marriage. When asked the reason she did not provide written evidence from them, she said she did not want to involve them in her visa application and did not want to place them under any pressure to be involved. She said the situation the sponsor’s relationship with the mother of his children is complex and they do not have an amicable relationship. The Tribunal accepts this explanation.

30. Following the hearing the applicant provided statutory declarations from friends, Mr Brett Smith, Ms Joanne Kendrick and Dr Amy Bright, all of who attested to the genuineness of the parties’ relationship. Each of the declarants have regular and frequent contact with the parties and each declarant provided detailed and persuasive reasons for their belief that parties’ relationship is genuine and continuing. The Tribunal gives these statutory declarations significant weight.

31. Prior to the hearing the applicant provided a Centrelink SS284 Relationship details form dated 10 March 2021 signed by the sponsor in which the he indicates he is in a de facto relationship with the applicant. At hearing the applicant and the sponsor gave consistent evidence that the sponsor had notified Centrelink of his partnered status. Following the hearing the applicant provided proof that this document had been provided (uploaded) to Centrelink for its records. 

32. The applicant told the Tribunal that in their leisure time she and the sponsor watch movies on Netflix and go for walks. She said they spend time with the sponsor’s mother and with friends. When asked to name friends she referred to “Shane” and “Brett’. The sponsor gave generally consistent evidence in this regard.

33. The Tribunal accepted the written and oral evidence and finds the applicant and the sponsor represent themselves to other people, including Centrelink, as being in a de facto relationship and that they engage in joint social activities at the time of this decision.

    Nature of persons’ commitment to each other

34. The Tribunal considered the nature of the persons’ commitment to each other including the duration of the relationship, the length of time they have lived together, the degree of companionship and emotional support they draw from each other, and whether they see the relationship as long-term.

35. In a written statement dated 13 March 2021 the applicant said:

    Nature of persons’ commitment to each other at the time of decision

    Our personal commitment to each other during this time was solid however (as I previously mentioned in part 1.)it felt like we were in a strange type of holding pattern limbo while external forces (beyond our control) decided our relationship fate. Despite these anxieties Jason and I remained in a continuous de facto relationship which extends to the present day since May 2014. Importantly, since our de facto relationship was deemed ambiguous by a third party (at the time of decision), yet we did not, meant Jason and I could only make short term plans and only really, live our lives together one day at a time. We were (and still are) both 100% committed to each other walking this journey

36. In a written statement dated 23 March 2021 the sponsor said he is currently in a de facto relationship with the applicant and has been since 2014.

37. In written statements made by the applicant dated 4 April 2021 and by the sponsor dated 8 April 2021, they each stated that like all relationships they have had their ups and downs.

38. Utilising the s.359AA procedure the Tribunal put to the applicant that on 27 August 2020 the sponsor advised the Tribunal by email that:

    Effective immediately I wish to withdraw unconditionally, my support for Lisa’s application (and I no longer support her Partner Visa application with IMMI).

    My reasons are personal yet genuine.

39. At hearing the applicant told the Tribunal that she and the sponsor separated briefly in 2018. She said they were together in August 2020 and she did not know the reason the sponsor emailed the Tribunal advising of withdrawal of his sponsorship. When asked about the email at hearing, the sponsor said he had been upset about their relationship at the time however his reasons for sending the email were personal and he did not wish to disclose them to the Tribunal.

40. The applicant told the Tribunal that the sponsor provided her with emotional support when she had surgery in 2020 and has continued to provide support in her visa application process. She said she provides the sponsor with emotional support and gave the example of advising and calming him when he distressed about his children. The sponsor gave consistent evidence in this regard.

41. In terms of their future, the applicant and the sponsor each told the Tribunal that they wish to continue to build a life together. The applicant said they have discussed marriage however they like the way they are at the moment.

42. The Tribunal finds that the parties provide each other with emotional support and that they see the relationship as long-term. The Tribunal places weight on the nature of each person’s commitment to the other.

    Conclusion

43. At hearing the parties provided consistent evidence about their financial circumstances, the nature of their household, their social life and the emotional support they provide to each other. The Tribunal records some concern regarding the sponsor’s email to the Tribunal on 27 August 2020 and his reluctance to provide information at the hearing with respect to the circumstances which caused him to send the email. The Tribunal also records its concern that the applicant appeared to have been unaware of any problem in the relationship at that time. However, the Tribunal accepts the parties’ written statements and oral evidence and found the applicant and the sponsor to be credible witnesses.

44. Having regard to all of the evidence, the Tribunal concludes as follows:

    ·the parties live together, or do not live separately and apart on a permanent basis;

    ·they are not related by family;

    ·they have a mutual commitment to a shared life together to the exclusion of others; and

    ·the relationship is genuine and continuing.

45. 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).

46. 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

47. 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)(c) of Schedule 2 to the Regulations

    Christine Kannis
    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).