Holt (Migration)

[2020] AATA 2591

Holt (Migration) [2020] AATA 2591 (22 June 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Alan Frederick Holt

CASE NUMBER:  1807413

HOME AFFAIRS REFERENCE(S):          BCC2016/2874155

MEMBER:Roger Maguire

DATE:22 June 2020

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(2)(a) of Schedule 2 to the Regulations;

· cl.820.221(1)(a) of Schedule 2 to the Regulations;

· r.2.03A.

Statement made on 22 June 2020 at 1:47pm

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – spouse or de facto partner – registered civil partnership – financial, household and social aspects of relationship – nature of commitment – false or misleading information in previous visa application – previous marriage, divorce and de facto relationship – compassionate or compelling circumstances – sponsor working reduced hours and studying for career change – sponsor’s health and surgeries – visa restrictions and economic conditions – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5CB, 5F, 65
Migration Regulations 1994 (Cth), rr 1.09A, 1.15A, 2.03A; Schedule 2, cls 820.211, 820.221, 820.226, Schedule 4, PIC 4020

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 Home Affairs 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 29 August 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)(a) because the evidence and information provided in relation to the matters prescribed under rr.1.15A and 1.09A were not sufficient to demonstrate that the applicant was the spouse or de facto partner of the sponsor, as defined under s.5F and s.5CB of the Act. The delegate also refused the application on the ground that the applicant did not meet the Public Interest Criterion (PIC) 4020, subclauses 4020(1) or 4020(4), and as such could not satisfy cl.820.226 of Schedule 2 to the Regulations on the date the decision was made.

4. The applicant appeared before the Tribunal on 16 June 2020 to give evidence and present arguments. The Tribunal also received oral evidence from Bao San Huynh, the applicant’s sponsor.

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

   Consideration of claims and evidence

6. The issues in the present case are whether the applicant satisfies cl.820.211(2), and if so, PIC 4020(1) or 4020(4) so as to meet cl.820.226 on the date this decision is made.

   SPOUSE/DE FACTO (cl.820.211(2)(a), (5)(e), (6)(d), cl.820.221)

   Whether the parties are in a spouse or de facto relationship

7. Clauses 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?

8. '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).

9. In forming an opinion as to 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.

10. In reaching its decision, the Tribunal has had regard to the evidence provided by the parties in relation to each matter in r.1.09A(3)(a), (b), (c) and (d), and any other circumstances of the relationship under r.1.09A(2). The individual consideration of these matters is as follows.

    Financial aspects of the relationship – including joint ownership of assets; joint liabilities; extent of pooling of financial resources; any legal obligations owed to the other party; any sharing of day-to-day household expenses

11. The Tribunal has had regard to the Westpac eSaver account statement for the period 19 August 2015 to 19 February 2016 in the name of the applicant, and a Westpac Choice statement for the period 19 February 2018 to 16 March 2018 in the name of the applicant.

12. The Tribunal has also had regard to Westpac Choice statements for the periods of: 2 November 2015 to 29 April 2016; 29 April 2016 to 24 August 2016; 24 August 2016 to 28 October 2016; 28 October 2016 to 22 February 2017; 22 February 2017 to 22 May 2017; 22 May 2017 to 22 August 2017; 22 August 2017 to 22 November 2017; 22 November 2017 to 22 February 2018; 22 February 2018 to 16 March 2018; 22 May 2018 to 22 August 2018; 22 November 2018 to 22 February 2019; and 22 May 2019 to 22 August 2019. This account appears to have been used for a broad range of expenses during this period, including rent, electricity, car registration, shopping, dining and general household expenses. This account appears to receive significant deposits from both parties.

13. The Tribunal has also had regard to documents evidencing a transaction with appliancesonline.com.au in the name of the sponsor and dated around March 2017.

14. The Tribunal is satisfied on the totality of the evidence that the financial aspects of the relationship are consistent with a de facto relationship.

    Nature of the household – including any joint responsibility for care and support of children; parties’ living arrangements; and any sharing of housework

15. In the present case, the parties have no joint responsibility for the care and support of any children.

16. The parties in this case commenced living together on 16 September 2015 and have done so continuously since that date at the address where they currently reside. In July 2016 they registered a civil union, and the present visa application was made on 30 August 2016.

17. The Tribunal has also had regard to residential tenancy agreements for the periods 5 September 2016 to 5 March 2017, 4 September 2017 to 4 March 2018, 5 March 2018 to 4 March 2018 (sic), 4 March 2019 to 1 September 2019, and 2 September 2019 to 30 August 2020, in the names of the parties.

18. The Tribunal has considered the written and oral statements by the applicant and sponsor and is satisfied on the totality of the evidence that the nature of the household is consistent with a de facto relationship.

    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

19. The Tribunal has had regard to the Form 888 statutory declaration dated 17 March 2018 by Angela Maree Eggers. The declarant said that she had known the applicant since November 2015 and had met and befriended the sponsor when the applicant was doing weekend work. She also said that she continues to see them regularly on a social basis outside the work environment and that they don’t spend more than a week without touching base. Ms Eggers went on to say that the parties had been together since she met them and she “had no doubt there will be in the minority that happily sees their lives out”. She considered they were a match made in heaven, and she could not recall an argument between them. The Tribunal has also had regard to an extract from what appears to be the declarant’s Facebook page showing the parties helping her celebrate her birthday in what appears to be a restaurant or club.

20. The Tribunal has had regard to the Form 888 statutory declaration by Leeanne Carol Koerber dated 28 August 2016, who declared that the parties lived together as if married.

21. The Tribunal has had regard to the Form 888 statutory declarations dated 31 August 2016 and 17 March 2018 by Celina Lucia Bertao Barber who declared that she met the applicant in December 2016 and that they worked closely together and became great friends, socialising outside work hours with their partners. The declarant said she had also become very close with the sponsor and continues to have regular contact with them. The declarant said that she definitely knew the parties had a very strong and happy relationship, and described them as “an inspiring couple”.

22. The Tribunal has also had regard to entertainment tickets for various dates and Titans rugby league 2018 season tickets for adjoining seats issued in the names of the parties, and all other documentation provided by the sponsor, as well as a receipt from Amart Furniture for various items of furniture, dated 8 March 2018.

23. The Tribunal has had regard to various wedding related photographs, including a diamond and a booking at the Marriott Hotel in Brisbane for the evening of Sunday, 28 August 2016. There is also a collection of photographs of the parties together with Ms Eggers and Mrs Barber in 2017, some taken on the Gold Coast in 2016 and in December 2018, and at a birthday party for a friend of theirs. The Tribunal has also seen photographs extracted from a video described as being of the parties’ proposal/engagement. There are also various other photographs taken at sporting and social events dating back to 2013.

24. The Tribunal is satisfied that the social aspects of the relationship are consistent with a de facto relationship.

    Nature of persons’ commitment to each other – including duration of the relationship; the length of time they have lived together; degree of companionship and emotional support they draw from each other; and whether they see the relationship as long-term

25. The parties have now lived together for over 4 and a half years. There have been no periods of separation during this period. The applicant has given strong emotional and financial support to the sponsor, particularly when she went through a very difficult time health wise. He has also given her strong support to enable her to undertake a career change. There is no evidence to suggest that either party regards this relationship as anything other than long-term.

26. The Tribunal is satisfied that the nature of the persons’ commitment to each other is entirely consistent with a de facto relationship.

    Whether the parties are related by family

27. The parties have both given evidence that they are not related by family. The Tribunal accepts this evidence, and finds that the parties are not related by family for the purposes of s.5CB(2)(d) of the Act.

    Any other circumstances of the relationship

    Consideration of PIC 4020

28. Regulation 820.226 is one of the mandatory requirements for the grant of the visa under consideration, and it states: “the applicant satisfies public interest criteria 4020 and 4021”.

29. PIC 4020 and 4021 are contained in Schedule 4 to the Regulations.

30. In evidence given before the Tribunal, the applicant conceded that he had provided false or misleading information in respect of an application for a Temporary Skilled (UC – 457) visa on 6 February 2013. In his application, the applicant told the Department that he was married to a woman who was migrating with him as his spouse, whereas in fact the relationship between them had ceased in August 2007, and they had divorced. Following the divorce, there was a period between 2009 and 2015 where the applicant and his ex-wife lived together in a de facto relationship. The 2013 visa application was prepared by the applicant employer based on an earlier outdated template which had been used for a visa application in 2006, at which time the marriage had remained on foot.

31. Whilst it can be recognised that a proper visa application in 2013 made in reliance upon the existence of a de facto relationship may well have been successful, it would not have resulted in a visa being issued to the applicant’s ex-wife on the basis that she continued to be his spouse. The Tribunal considers that this information is a material particular as it relates to the requirement that the applicant be in a genuine and continuing spousal or de facto relationship with the sponsor (cls.820.211 and 801.221). The Tribunal therefore considers that the applicant failed to meet PIC 4020(1)(a), and therefore did not meet PIC 4020 (1).

32. If PIC 4020(1) is not satisfied, cl.4020(4) provides that PIC 4020 will nonetheless be satisfied if the Minister is satisfied that:

    (a) compelling circumstances that affect the interests of Australia; or

    (b) compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen

    that justify the granting of the visa.

33. Before the Tribunal, it was not contended that PIC 4020(4)(a) was relevant for present purposes.

34. The Tribunal heard evidence from the parties as to the applicability of PIC 4020(1)(b), i.e., the existence of compassionate or compelling circumstances that affect the interests of an Australian citizen, namely the sponsor.

35. The sponsor gave evidence that in the event that the applicant’s visa application is not approved, she will face a combination of hardships. This evidence was supported by further material submitted post hearing.

36. The sponsor would be faced with financial challenges where she would either have to abandon the de facto relationship, and seek more affordable accommodation, and endeavour to maintain the relationship as best she could for the mandatory exclusion period, or abandon her study and career to relocate to the United Kingdom, where there would be further obstacles for her, no doubt among them financial survival.

37. If the sponsor is to remain in Australia, she will not be in a position to pay for her present accommodation as her rent equates approximately to her total pay packet. The sponsor previously worked at the Westpac bank call centre but found that work very stressful and decided to retrain. She is presently rebuilding her career doing reduced working hours and studying childcare. She is relying upon the applicant for financial support so as to enable her to pursue her course, which she is due to finish around September or November this year. The Tribunal notes that in the event that the decision under review is affirmed, the applicant would be subject to a 3 year mandatory exclusion period, by which time he would be 68 years of age, by which time his work prospects in Australia would be unlikely to improve. He is presently in employment, which allows him to provide the sponsor with the support she needs.

38. The applicant gave evidence that at the age of 65, should he have to return to the United Kingdom his work prospects are at best uncertain, firstly because of his age, secondly because of the general climate and the Covid-19 pandemic. The sponsor gave evidence that she had explored the possibility of moving to the United Kingdom, but discovered that the applicant would need to be in employment for a specific period of time at a given level of income before he could sponsor her to enter the country. This evidence was also supported by material submitted post hearing.

39. The cost of a visa in this context would be several thousand pounds, and the duration of the process is uncertain, however, the Tribunal does not expect this would be a swift process. The Tribunal has had regard to evidence which shows that this would at least be a financial strain, and quite possibly simply outside the parties’ joint capacity. The sponsor stated that she is already too old for a youth visa, and in any event is very concerned about the prospect of resettling and assimilating socially, and obtaining employment.

40. The sponsor is Vietnamese by birth, and her parents, both aged 60, continue to live in Vietnam. Were she to relocate the United Kingdom, this would impact on the cost and frequency of her visiting her parents.

41. The sponsor is 34 years of age, and underwent emergency surgery in 2016, and had further significant surgery in 2019. She is under the care of a medical specialist for her condition, and will require surgery if she is to have children. Naturally enough, the applicant is desirous of having children and a 3-year mandatory exclusion period for the applicant could significantly impact on this prospect.  There is no set timeline for her proposed surgery at this stage, however it will necessitate her taking a lot of time off work as the projected recovery period is 9 weeks. A number of factors are contributing to the uncertainty over the timing of this surgery, including the applicant’s study, the current Covid-19 pandemic, and the present visa application.

42. The sponsor is very concerned as to whether she will be able to afford the required surgery in the United Kingdom. The applicant also gave evidence that he is concerned about the prospect of the sponsor suffering racial prejudice in the United Kingdom. The Tribunal accepts that the sponsor is dependent upon the applicant for financial and emotional support, and that this dependence is likely to increase over the coming year or two. The Tribunal also notes that this application has been on foot for nearly 3 years and 10 months, and the Tribunal accepts that this extended period of uncertainty would have impacted greatly on the sponsor, and exacerbated her health worries.

43. Taking all of the foregoing into account, the Tribunal finds that there are compelling circumstances that affect the interests of an Australian citizen, and justify the grant of the visa. The Tribunal therefore finds that by operation of cl.4020(4), PIC 4020 is satisfied.

44. The foregoing evidence satisfies the Tribunal that:

    a.the parties have a mutual commitment to a shared life to the exclusion of all others; and

    b.the relationship between them is genuine and continuing; and

    c.they live together; and

    d.they are not related by family.

45. 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.

46. Therefore the applicant meets cl.820.211(2)(a) and cl.820.221(1)(a).

    Are the additional criteria for a de facto relationship met?

47. 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. Both parties were well over 18 years of age at the time they met, and the Tribunal is therefore satisfied in respect of this requirement. The Tribunal is therefore satisfied that the criterion in r.2.03A(2) is met.

48. 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.

1. The Tribunal also had before it a copy of a Civil Partnership Certificate dated 23 July 2016 issued under the Civil Partnerships Act 2011 (Qld), which is a law prescribed under the Acts Interpretation (Registered Relationships) Regulations 2008. That certificate names the applicant and sponsor as partners.  In reliance on this evidence, the Tribunal finds that the de facto relationship between the applicant and the sponsor was registered as a kind of relationship prescribed in those Regulations. Based on this evidence, the Tribunal finds that subregulation (3) of r.2.03A does not apply in consequence of r.2.03A(5). Accordingly, the 12-month requirement does not apply.

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

3. 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

4. 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(2)(a) of Schedule 2 to the Regulations;

   ·cl.820.221(1)(a) of Schedule 2 to the Regulations;

   ·r.2.03A.

   Roger Maguire
   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).