HSU (Migration)

[2020] AATA 613

HSU (Migration) [2020] AATA 613 (2 March 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Che-Jui HSU

CASE NUMBER:  1919581

HOME AFFAIRS REFERENCE(S):          BCC2018/354371

MEMBER:Steven Griffiths

DATE:2 March 2020

PLACE OF DECISION:  Adelaide

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) of Schedule 2 to the Regulations

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

·r.2.03A

Statement made on 02 March 2020 at 9:53am

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) – Subclass 820 (Partner) – de facto partner – financial, household and social aspects of relationship – nature of commitment – relationship registered under state law – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), ss 5CB, 65

Migration Regulations 1994 (Cth), rr 1.09A(3), 2.03A, Schedule 2, cll 820.211(2), 820.221(1)

CASE
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 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, Mr. Che-Jui Hsu, applied for the visa on 22 January 2018 on the basis of his relationship with his sponsor, Ms. Min Meng Choo. 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.

3. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.820.211 because the delegate was not satisfied the visa applicant was the de facto partner, as defined in s.5CB of the Act, of the sponsor.

4. The applicant appeared before the Tribunal on 28 February 2020 to give evidence, respond to questions and present arguments. The Tribunal also received oral evidence from the sponsor, the sister of the sister and a long term friend of the sponsor. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.   

5. The applicant was represented by his registered migration agent, who attended the hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The Tribunal has taken into consideration all the evidence in the Department of Immigration file, the Tribunal file, additional information provided by the applicant and the oral evidence from the Tribunal hearing.

   ISSUE

8. The issue in the present case is whether the visa applicant is the de facto partner, as defined in s.5B of the Act, of the sponsor.

   BACKGROUND OF THE EVIDENCE

9. Mr. Hsu was born in Kaohsiung, Taiwan, in 1994. His parents, born 1965 & 1969, are divorced and he has a brother, born 1992, with all living in Taiwan. He arrived in Australia in September 2014 on a subclass 417 working holiday visa and remained from November 2016 as a subclass 500 student. 

10. Ms. Choo was born in Belarus in 1989. Her parents, born 1948 & 1962, live in Malaysia and she has a sister and brother, born 1991 & 1994, living in Australia. She arrived in Australia on a subclass 572 student visa, remaining on a subclass 190 skilled nominated visa from October 2015 and became an Australian permanent resident on 12 December 2016.

    INFORMATION TO THE TRIBUNAL

11. Since the Department of Immigration made its decision, the applicant has provided further information to the Tribunal including:-

    Applicant name electricity account, November 2019

    Sponsor name gas account, December 2019

    Joint name car purchase in October 2019

    Migration Agent Statement

    Sponsor relationship statement, not dated

    Sister of sponsor relationship statement, not dated

    Statement by brother and mother of applicant, 12/2/20

    Statement by parent of sponsor, not dated

    Joint names Commonwealth Bank account, 8/7/19 to 16/2/20

    Photos of webcam discussions with parents, 8/2/20

    19 photos with friends

    Is the sponsor an Australia citizen, and Australian permanent resident or an eligible New Zealand citizen?

12. 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. The Tribunal accepts the documented evidence of the sponsor becoming an Australian permanent resident on 12 December 2016.    

    Are the parties in a de facto relationship?

13. '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).

14. 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.

    CLAIMS AND FINDINGS

    Financial aspects of the relationship that must be considered include:-

    (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 expense

15. The Tribunal determines from the oral evidence of the parties that at the time of the visa application, no real estate was jointly owned by the parties.

16. The Tribunal determines from the documented and oral evidence of the parties that at the time of this decision the parties jointly own a car.     

17. The Tribunal determines from the oral evidence of the parties that at the time of the visa application the parties do not have any joint liabilities.

18. The Tribunal determines from the documented and oral evidence of the parties that at the time of this decision the parties have joint responsibility for the liability of funds borrowed to purchase a car.

19. The Tribunal determines from the oral evidence of the parties that at the time of the visa application and this decision, none of the parties has a legal obligation with regard to the other.

20. The Tribunal accepts the documented and oral evidence of the applicant working as chef.

21. The Tribunal accepts the documented and oral evidence of the sponsor working as a registered nurse for an aged care provider.   

22. The Tribunal accepts the documented and oral evidence, confirmed independently by the parties, of the joint bank account opened in January 2018 in to which deposits are made, as required, by both parties to pay for commitments such as home rent and car repayment costs, with the parties individually meeting the cost of household services, with 2 other tenants who rent rooms in the house and make proportionate payments to the parties, and  determines, at the time of application and this decision, this account confirms the pooling of financial resources in relation to major financial commitments and the sharing of day-to-day household costs. 

23. The Tribunal accepts the oral evidence, confirmed independently by the parties, of the sponsor having a higher wage income and the parties each retaining having individual bank accounts in to which their wage income is deposited and they then transfer funds to the joint name account as required, with each paying for social and entertainment costs as agreed, and determines, at the time of application and this decision, these payments to represent the pooling of financial resources.

    Nature of the household aspects that must be considered include:-

    (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

24. The Tribunal accepts the oral evidence from the parties that they do not have children, or provide care for the children of others.  

25. The Tribunal accepts the documented and oral evidence, confirmed independently, of the parties living together since September 2017 and determines, at the time of application and this decision, the parties live together at all times

26. The Tribunal noted the home of the parties has been shared with the sister of the sponsor since that time and the brother of the sponsor since January 2018.   

27. The Tribunal accepts the oral evidence, confirmed by the parties independently, on the roles the parties and two others who also live in the home undertakes, and determines, at the time of application and this decision, the parties share the responsibility for housework.

    Social aspects of the relationship that must be considered include:-

    (i)whether the persons represent themselves to other people as being a de facto partner to 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

28. The Tribunal accepts the photographic, documented and oral evidence and determines, at the time of application and this decision, the parties represent themselves to other people as being de facto partners.  

29. The Tribunal accepts the documented, photographic and oral evidence of family and friends of the parties and determines, at the time of application and this decision, the opinion of family, friends and acquaintances as being supportive of the de facto relationship. 

30. The Tribunal accepts the oral evidence of the contact between the parties and determines, at the time of application and this decision, the parties have a high knowledge of, and involvement in, the activities of the other.

31. The Tribunal notes the discussions between the parties and their families in Taiwan and Malaysia of a future home purchase, then marriage and children.

32. The Tribunal accepts the photographic, documented and oral evidence, confirmed by the parties independently, of the activities of the parties and determines, at the time of application and this decision, the parties plan and undertake joint social activities.

    Nature of the commitment to each other that must be considered include:-

    (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.

33. The Tribunal accepts the evidence of the parties making contact via a dating website in February 2017, meeting in May 2017, commenced living together in September 2017 and committing as de facto partners in December 2017.     

34. The Tribunal accepts the photographic, documented and oral evidence that the parties have lived together since September 2017.

35. The Tribunal accepts the documented and oral evidence of the parties of the support the parties provide to each other and determines, at the time of application and this decision, a high level of companionship and emotional support is provided by each of the parties.

36. The Tribunal accepts the oral evidence of the parties, confirmed independently, of marriage occurring within 2 years, with marriage ceremonies to be held in Malaysia and Taiwan to ensure family members are able to attend.  

37. The Tribunal accepts the oral evidence of the parties and determines, at the time of application and this decision, they have had and continue to have an ongoing commitment to each other and see the relationship, de facto partnership and future marriage as being long-term.

    Any other circumstances in the relationship

38. The Tribunal accepts the sponsor was driving a car involved in a car accident in Malaysia in 2016 and has not driven since, which requiring the 2 cars she and the applicant have purchase together to have high level safety protection built in and this has come at a significant cost, one she has resolved to fund the majority of.   

    Whether the parties are related by family

39. The Tribunal was determines that the parties are not related by family. 

40. The Tribunal considered all the evidence on the circumstances of the parties and determines that the evidence supports a finding that, at the time of the application and this decision, the parties have had and continue to have a mutual commitment to a shared life together as a de facto couple to the exclusion of all others, with the relationship genuine and continuing and they have and continue to live together.

41. The Tribunal accepts that the parties have been in a committed relationship since September 2017 and do not live separately and apart of a permanent basis.

42. On the basis of the above the Tribunal is satisfied that the requirements of s.5CB(2) are met at the time of the visa application and the time of this decision. The Tribunal is further satisfied the sponsor is not prohibited by subclause (2B) from being a sponsoring partner.

43. The applicant therefore meets cl.820.211(2)(a). The Tribunal accepts the applicant was sponsored and therefore meets cl.820.211(2)(c). Accordingly, the applicant meets cl.820.211(2). The applicant continues to meet these requirements at the time of decision and therefore meets cl.820.221(1). 

    Are the additional criteria for a de facto relationship met?

44. 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.

45. 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.

46. The applicant has provided evidence that the relationship is registered, on 18 December 2017, under the South Australian Relationships Act 2016 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.

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

48. 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

49. 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) of Schedule 2 to the Regulations

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

    ·r.2.03A

    Steven Griffiths
    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).