He (Migration) - [2021] AATA 5325

He (Migration) [2021] AATA 5325 (7 September 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ms Cuiyi HE
CASE NUMBER:  1904648
HOME AFFAIRS REFERENCE(S):          BCC2015/3209152; CLF2013/44658
MEMBER:Mireya Hyland
DATE:7 September 2021
PLACE OF DECISION:  Sydney
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; and
·cl.820.221(1) of Schedule 2 to the Regulations; and
·r.2.03A.

Statement made on 07 September 2021 at 5:18pm
CATCHWORDS
MIGRATION –Partner (Temporary) (Class UK) visa – Subclass 820 – Federal Court remittal – applicant had been in the de facto relationship for at least the 12-month period – 12-month requirement met – de facto relationship–genuine and committed relationship at the date of decision –decision under review remitted
LEGISLATION
Migration Act 1958, ss, 5, 65, 360
Migration Regulations 1994, rr 2.03A, 1.09, Schedule 2, cls 820.211, 820.221
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

This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicant, Cuiyi He, a Partner (Temporary) (Class UK) visa under s.65 of the Migration Act 1958 (the Act).
Ms He applied for the visa on 2 November 2015 on the basis of her relationship with her sponsor, Mr Danny LIANG. At that time, Class UK contained 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 issue in the present case is whether Ms He is Mr Liang’s de facto partner as defined by s.5CB of the Act. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
Background
Ms He was born on [date] in Guangzhou City, Guangdong Province, China and is 58 years of age. She is a citizen of China. She claims two previous relationships. Ms He married Tianjin Yang, born [date], on 1 February 1988. There is one child of the marriage, her daughter [Ms A] born [date] who is living in Australia. Ms He and Mr Yang divorced on 3 April 2000. Ms He then married Varro Malcolm Shi, born [date], on 28 June 2003. She divorced Mr Shi on 17 March 2006. Ms He was a travel agent and ran a number of travel businesses before she retired in 2017.
Ms He first entered Australia as the holder of a Short Stay (Visitor) (Class TR) Subclass 676 (Tourist (Short Stay)) visa on 7 February 2000 and departed on 13 February 2000. On 26 March 2001, she was granted a Temporary Business Entry (Class UC) Subclass 456 (Business (Short Stay)) visa and made several business trips to Australia…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] AATA 5325
Decision Date: 7 September 2021

CaseChat Overview and Summary

This matter concerned an application for a Partner (Temporary) (Class UK) visa, Subclass 820, made by Ms He, a citizen of China, who claimed to be the de facto partner of Mr Liang, an Australian citizen. The Administrative Appeals Tribunal was required to determine whether Ms He and Mr Liang were in a de facto relationship as defined by section 5CB of the Migration Act 1958 (Cth) and the relevant regulations, and whether Ms He met the criteria for the visa.

The Tribunal was tasked with assessing whether Ms He and Mr Liang had a mutual commitment to a shared life to the exclusion of all others, whether their relationship was genuine and continuing, whether they lived together or did not live separately and apart on a permanent basis, and whether they were not related by family. In making this assessment, the Tribunal was required to consider all the circumstances of the relationship, including financial aspects, the nature of the household, social aspects, and the nature of their commitment to each other, as outlined in regulation 1.09A(3) of the Migration Regulations 1994.

The Tribunal found that the applicant met the criteria for the Subclass 820 visa, including the requirement that the de facto relationship existed for at least 12 months prior to the application. However, due to inconsistencies in the evidence regarding the commencement of the relationship and the need for a face-to-face hearing to assess credibility, the Tribunal determined that the matter should be remitted for reconsideration. The Tribunal directed that the applicant met the criteria specified in cl.820.211, cl.820.221(1), and r.2.03A of the Regulations.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The issue in the present case is whether Ms He is Mr Liang’s de facto partner as defined by s.5CB of the Act. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.Background Ms He was born on [date] in Guangzhou City, Guangdong Province, China and is 58 years of age. She is a citizen of China. She claims two previous relationships. Ms He married Tianjin Yang, born [date], on 1 February 1988. There is one child of the marriage, her daughter [Ms A] born [date] who is living in Australia. Ms He and Mr Yang divorced on 3 April 2000. Ms He then married Varro Malcolm Shi, born [date], on 28 June 2003. She divorced Mr Shi on 17 March 2006. Ms He was a travel agent and ran a number of travel businesses before she retired in 2017. Ms He first entered Australia as the holder of a Short Stay (Visitor) (Class TR) Subclass 676 (Tourist (Short Stay)) visa on 7 February 2000 and departed on 13 February 2000. On 26 March 2001, she was granted a Temporary Business Entry (Class UC) Subclass 456 (Business (Short Stay)) visa and made several business trips to Australia for her travel agency. Ms He was granted a further Subclass 456 visas on 14 May 2002 and continued to make a large number of trips to Australia until her Subclass 456 visa was cancelled on 4 September 2003. On 25 September 2003, she applied for a Partner (Provisional) (Class UF) Subclass 309 (Spouse (Provisional)) as Mr Shi’s spouse, which was refused on 19 November 2003. Ms He was granted further Subclass 456 visas in 2004, 2005, and 2006. She regularly travelled to Australia doing work for a travel agency she set up in Australia in 2005 and stayed up to three months until she was granted a Temporary Business Entry (Class UC) Subclass 457 (Business (Long Stay)) visa on 15 April 2011. Ms He has continued to travel regularly in and out of Australia since 2011, although her travel diminished after 2017 when she retired. Mr Liang was born on [date] in Guangzhou City, Guangdong Province, China and is 60 years of age. He is a citizen of China and Australia. He claims two previous relationships. Mr Liang first arrived in Australia on 24 May 1987. He married Beidi Xin, born in [year], on 14 May 1989 and gained permanent residency through Australia’s previous partner visa program. He was granted Australian citizenship on 17 November 1992. Mr Liang and Ms Xin divorced on 3 April 1993. He then married Lai Wan Wong, born [date], on 13 September 1993 and sponsored her for a partner visa. There are two children of the marriage, his daughter [Ms B] born [date] and his son [Mr C] born [date]. Mr Liang and Ms Wong divorced on 8 November 2010. Mr Liang does handyman work and light construction. Ms He divorced Mr Shi in March 2006 and Mr Liang divorced Ms Wong in November 2010. In May 2011, having been granted a long stay business visa in effect until 2015, Ms He moved into Mr Liang’s house at [address] [Suburb 1]in New South Wales. She then applied for a Partner visa approximately 18 months later claiming that she and Mr Liang first met in Guangzhou through a mutual friend in June 2004 but did not start dating until they decided they wanted to be together in January 2011. This version of their relationship is inconsistent with the Department of Immigration’s (the Department) records that show Mr Liang did not leave Australia between 13 August 2000 and 6 March 2005 so he was not in China in June 2004. However, the records do show that Ms He and Mr Liang have repeatedly departed and re-entered Australia on the same day since 20 January 2006 indicating regular joint travel. The statutory declaration by Choi Chi Pui, Ms He’s business landlord for many years, notes that he first met Ms He’s partner in 2007 and the 2013 statutory declaration by Ping Kwong Wong, Mr Liang’s work colleague, states he had known Mr Liang’s partner for five years, putting his introduction to Ms He by Mr Liang in 2008. Procedural History

Evidence

Evidence Before The Court

The matter was returned to the Tribunal by the Department, however an outbreak of the novel corona virus, SARS-CoV-2 (Covid-19), became a global pandemic and in March 2020 the Tribunal stopped holding in-person hearings. Since this matter turns on Ms He’s and Mr Liang’s credibility, for procedural fairness reasons the Tribunal determined that it required a face to face hearing. Ms He was finally able to appear before the Tribunal as currently constituted on 23 June 2021 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Liang. The Tribunal hearing was conducted with the assistance of an interpreter in the Chinese (Cantonese) and English languages. Ms He was represented in relation to the review by her solicitor. The representative attended the Tribunal hearing. Where relevant the evidence given at the hearings is set out below. It is not necessarily set out in the order in which it was given.CONSIDERATION OF CLAIMS AND EVIDENCE At the time of the application Ms He was not the holder of a Subclass 771 (Transit) visa and, for the reasons below, she met the requirements of cl.820.211(2) at the time of the application. Therefore, she satisfies cl.820.211(1) of the Regulations. Clause 820.211(2)(a) and cl.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 Ms He claims to be the de facto partner of her sponsor, Mr Liang, who is an Australian citizen: cl.820.211(2)(a)(i). Also, the sponsor must not be prohibited by cl.820.211(2B) of the Regulations from being a sponsoring partner: cl.820.211(2)(a)(ii). Since he is not a woman who was granted a Subclass 204 (Woman at Risk) visa within the five years immediately preceding the application, Mr Liang is not prohibited from being a sponsoring partner: cl.820.211(2B)(a).Whether Ms He and Mr Liang are in a De Facto Relationship '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) of the Act. In forming an opinion about whether Ms He and Mr Liang are in a de facto relationship consideration must be given to all of the circumstances of the relationship. This includes evidence of the financial aspects and the nature of the household, as well as the social aspects 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[1] and the Tribunal has put its mind to, and satisfied itself about, each.[1] He v MIBP [2017] FCAFC 206.

Decision

Reasons for decision

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 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(1) of Schedule 2 to the Regulations·r.2.03AMireya HylandMemberATTACHMENT - Extract from Migration Regulations 19941.09A 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).

Ratio Decidendi

Legal Principle Established

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(1) of Schedule 2 to the Regulations·r.2.03AMireya HylandMemberATTACHMENT - Extract from Migration Regulations 19941.09A 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).