Harrington (Migration)

[2019] AATA 6315

Harrington (Migration) [2019] AATA 6315 (22 November 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Miles Harrington

CASE NUMBER:  1726115

HOME AFFAIRS REFERENCE(S):          BCC2016/1854298

MEMBER:Adrienne Millbank

DATE:22 November 2019

PLACE OF DECISION:  Brisbane

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 of Schedule 2 to the Regulations

·cl.820.221 of Schedule 2 to the Regulations

·r.2.03A

Statement made on 22 November 20019 at 5:02pm

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) – Subclass 820 (Spouse) – genuine long-term relationship – joint asset and liability – house purchased – pooled financial resources – shared expenses and housework – shared responsibility of children – undertake joint social activities – companionship and emotional support – Civil Partnership Certificate provided –
decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5, 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 and Border Protection 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 26 May 2016 on the basis of his relationship with his sponsor. At that time, Class UK contained only one subclass: Subclass 820 (Partner). 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) because evidence was not provided that he was the spouse or de facto partner of an Australian citizen, Australian permanent resident or eligible New Zealand citizen.

4. The applicant appeared before the Tribunal on 15 October 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor.

5. Further documentary evidence was received by the Tribunal on 24 October 2019 and 12 November 2019.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is whether the parties were in a genuine relationship at the time of application and decision.

   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. 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?

9. 'De facto partner' is defined in 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.

    Financial aspects of the relationship

11. At hearing the parties described how they are both unemployed: the sponsor has two young children and the applicant has had difficulty obtaining employment while on a bridging visa. At the time of decision the sponsor is in receipt of Centrelink benefits.

12. The parties each demonstrated knowledge about the funds held in each other’s personal bank accounts: the remains of savings, in the case of the applicant, and of an inheritance, in the case of the sponsor. They stated that they are living with the sponsor’s parents, and draw funds from either of their personal accounts to meet day-to-day expenses. The sponsor stated that they both view funds held in their bank accounts as joint funds for joint and family purposes.

13. The applicant advised at hearing that the parties are building a house into which they intend to move in January 2020, and that he drew on his savings to make the deposit.  

14. Statements of transactions from the parties’ bank accounts were provided, confirming their financial arrangements as described at hearing. A copy of a countersigned Contract of Construction was also provided, showing the parties’ joint purchase of a ‘Tiny Home’.

15. The Tribunal finds that the parties have a joint asset and liability, the house they are purchasing together; that they have pooled their financial resources; and that they share-day-to-day expenses.

    Nature of the household

16. The parties have lived in the sponsor’s house, with the sponsor’s parents, since the applicant joined the sponsor in Australia in 2016.  As noted above, evidence was provided showing that they have saved to build a Tiny Home, into which they will move on its completion in January 2020.

17. The parties have two young children, born in 2017 and 2019. At hearing they described how they have shared the care of their children and contributed to the shopping and housework while living in the sponsor’s parents’ home. A letter was provided by the sponsor’s parents, signed on 16 October 2019, confirming that the applicant, the sponsor, and their two young children have been living with them since 15 March 2016. In the letter the sponsor’s parents describe the applicant as a ‘very reliable, patient, caring and helpful member of our household’.

18. The Tribunal finds that the parties live together as a couple and family; that they share the care and responsibility for their children; and that they share the housework.

    Social aspects of the relationship

19. The parties’ written statements describe how they spent time as a couple with each other’s parents and other family members in the UK and Australia. The applicant described how the sponsor’s parents were present when he proposed to the sponsor, in Paris. As noted, the parties are at the time of decision living with the sponsor’s parents.

20. Photos were provided showing the parties together as a couple and as a young family, with family and friends.

21. At hearing the parties stated that their social life as a couple has been less active since they had children.  The applicant described how their closest friends had a child at the same time as the sponsor. The sponsor described a planned camping holiday the parties are organising with nine other young families.

22. The Tribunal finds that the parties have represented themselves to other people as being in a de facto relationship with each other; that in the opinion of family, friends and acquaintances they are a couple in a genuine relationship; and that they plan and undertake joint social activities as a couple.

    Nature of persons’ commitment to each other

23. The parties met in 2006 and have been in a relationship since 2007. They have lived together for over 10 years and have two children of the relationship. Copies of the parties’ emails to each other, and photos of them together as a couple, were provided to the Tribunal. As noted, they are building a house, a Tiny Home, extended to meet the needs of a family of four. At hearing they described plans to live and work in Queensland.

24. Copies of the parties’ children’s birth certificates were provided, certifying that their son was born in Brisbane on 5 March 2017, and their daughter was born in Brisbane on 6 July 2019. Photos were provided of the parties together at the time of the birth of their children.

25. The parties presented at hearing as open and forthright. The Tribunal found them compelling witnesses and accepted their testimony. The Tribunal accepts on the evidence provided that the parties are in a long-standing relationship; that they are each other’s main source of companionship and emotional support; and that they see the relationship as long-term.

    Any other circumstances of the relationship

26. The applicant stated at hearing that he regretted not providing the information sought by the Department at the time of application. He advised that he did not receive the request because he was locked out of his Microsoft account for a period, and that the parties were distracted at this time by the birth of their son.

27. The parties are not related by family.

28. 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 the time of this decision.

29. Therefore the applicant meets cl.820.211(2)(a) and cl.820.221.

30. The parties are both over 18 years of age and the applicant is sponsored by his de facto partner. Therefore the applicant meets cl.820.211(2)(c). The applicant was the holder of a substantive visa at the time of application. Therefore the applicant meets cl.820.211(2)(d).

31. Therefore the applicant meets cl.820.211 and cl.820.221.

    Are the additional criteria for a de facto relationship met?

32. 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.

33. 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.

34. On 12 November 2019 the Tribunal received a copy of a Civil Partnership Certificate, certifying that the applicant and the sponsor registered their relationship in Brisbane on 5 November 2019.

35. The applicant has provided evidence that the relationship is registered under the Queensland Civil Partnerships Act 2011 as a kind of relationship prescribed in the Acts Interpretation (Registered Relationships) Regulations 2008: r.2.03A(5). Accordingly, the 12 month requirement does not apply.

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

37. 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

38. 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 of Schedule 2 to the Regulations

    ·cl.820.221 of Schedule 2 to the Regulations

    ·r.2.03A

    Adrienne Millbank
    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).