Kaneva (Migration)

[2019] AATA 388

Kaneva (Migration) [2019] AATA 388 (7 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Kameliya Ivanova Kaneva

CASE NUMBER:  1713726

HOME AFFAIRS REFERENCE(S):           BCC2015/2673144

MEMBER:Helena Claringbold

DATE:7 February 2019

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 of Schedule 2 to the Regulations; and

·r.2.03A.

Statement made on 07 February 2019 at 8:06am

CATCHWORDS

MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner (Temporary)) visa de facto relationship – genuine relationship – shared life – travelled and lived together overseas and in Australia – manage financial commitments – social aspects – third party statements provided – relationship existed for over 12 months – decision under review remitted for reconsideration

LEGISLATION

Migration Act 1958 (Cth), s 5CB
Migration Regulations 1994 (Cth), rr 1.09A, 2.03A Schedule 2 cls 820.211, 820.221

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. On 14 September 2015, Ms Kameliya Ivanova Kaneva, the applicant, applied for a Partner (Temporary) (Class UK) visa. The application was based on her de facto relationship with Mr Paris Justin Lord, also known as Paris Justin Ashton, the sponsor.

2. On 12 June 2017, a delegate of the Minister for Immigration and Border Protection refused to grant the visa. The delegate was not satisfied that the applicant met cl.820.211(2) of Schedule 2 to the Migration Regulations 1994 (the Regulations) made under the Migration Act 1958 (the Act) and regulation r.2.03A of the Regulations. This is a review of the delegate’s decision. This is a review of the delegate’s decision.

3. On 6 February 2019, the applicant appeared before the Tribunal to give evidence and present arguments.  She provided the Tribunal with a copy of the delegate’s decision record. The Tribunal also received oral evidence from Mr Lord.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The Tribunal has taken into consideration all the evidence, individually and as a whole, in the Department of Immigration and Border Protection’s case file and the Tribunal’s case file and the evidence provided at the Tribunal hearing.

   ISSUE

6. The issue in the present case is whether the applicant is the de facto partner of the sponsor as defined in s.5CB of the Migration Act 1958 (the Act). Additionally, whether the applicant meets the requirements of regulations 2.03A of the Regulations.

   BACKGROUND ON THE EVIDENCE

7. The applicant was born in Kavarna, Dobrich, Bulgaria in 1987.  She is a citizen of Bulgaria. Her parents are divorced and live in Bulgaria. She did not declare any siblings.

8. The sponsor was born in 1976 in Australia.  He is an Australian citizen by birth. His parents and two siblings live in Australia.

9. The parties claim that they met on 8 October 2012 and their de facto relationship began on 27 October 2012.

   Is the applicant the de facto partner of an eligible citizen?

10. The Tribunal is satisfied that the sponsor, at the time of visa application and decision, was an Australian citizen who had turned 18. 

    Are the parties in a de facto relationship?

11. As the parties are not married to each other under a marriage that is valid for the purposes of the Act, they cannot satisfy an essential requirement of a spouse relationship, but may meet the criteria on the basis of being in a de facto relationship as defined in s.5CB of the Act. 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).

    CLAIMS AND FINDINGS

12. 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.

13. About the parties’ financial matters, at the time the parties began living together in May 2014, the sponsor was employed and the applicant was a student.  Therefore, the sponsor was responsible for the parties’ expenses.  However, the applicant contributed to the cost of utilities and groceries. This arrangement continued throughout the earlier part of the parties relationship.  In 2015, the parties opened a joint bank account.  They both deposit into this account however it is primarily used by the applicant. The sponsor’s two other bank accounts manage his salary, mortgage repayments for the apartment he is purchasing and savings. Primarily the sponsor pays for utilities but the applicant sometimes contributes to paying the utility accounts and also to the purchase of groceries. Ultimately the parties work together to manage their financial commitments. There is no evidence or claims that the parties have any joint ownership of real estate or other major assets or any joint liabilities or owe any legal obligation in respect of the other.  The Tribunal accepts that the parties pool their financial resources and share day to day household expenses.

14. Regarding the parties’ household, when the parties lived in China the sponsor did the cooking and the applicant did the washing up and the parties shared other housework. Their current routine in Australia is similar with the sponsor being responsible for cooking and the remainder of the housework is shared. The parties share the responsibility for walking their dog. No evidence has been provided and no claims have been made that the parties have any responsibility for children.  The Tribunal accepts that the parties share the responsibility for housework.

15. Regarding the social aspect of the parties’ relationship, the parties provided evidence of their social activities and their travel in China, Bulgaria, Serbia and Australia.  Third party statements provide insight into the parties’ social activities and provide evidence that the parties were recognised as de facto partner from May 2014. On the evidence before the Tribunal it accepts that the parties presented and were recognised as de facto partners since May 2014.  It accepts that the parties plan and undertake social activities.

16. Concerning the parties’ commitment, the parties met at university in Harbin, China.  They began dating in October 2012. In May 2014, the applicant moved to Shanghai and the parties lived together until the end of July 2014.  At that time the applicant returned to Bulgaria for three months. On 1 November 2014, the applicant returned to Shanghai and the parties lived together for six months. In December 2014, the applicant travelled to Australia to meet the sponsor’s family. In April 2015, the sponsor left China and returned to Australia to take advantage of an employment opportunity. On 23 July 2017, the applicant entered Australia and the parties resumed living together. The Tribunal considered the evidence, including the witness statements and the details they provide about the conception of the parties’ de facto relationship.  It accepts that the parties’ de facto relationship began in May 2014. The Tribunal is of the view that prior to this time the parties shared a girlfriend- boyfriend relationship.  During their relationship the parties provided each other with companionship and emotional support. This is evidenced by the information the parties provided and also by third party statements. The Tribunal understands that three months after the parties’ de facto relationship began, they were separated for three months and that this separation was due to visa issues related to the applicant. It also accepts that the parties recommenced living together once the visa issues were resolved and have continued to live together as de facto partners.  The Tribunal accepts that, at the relevant time and at the time of this decision the parties consider their relationship to be long term.

17. This decision record is a synopsis of the evidence before the Tribunal. The Tribunal considered all the evidence individually and as a whole including the Department and Tribunal case files and the evidence provided at the Tribunal hearing. Overall, the Tribunal is satisfied that the applicant and the sponsor have a mutual commitment to a shared life as de facto partners to the exclusion of all others; that their relationship is genuine and continuing and that they do not live separately and apart on a permanent basis. The applicant therefore meets the requirements of s.5CB of the Act.

18. Therefore the applicant meets cl.820.211 and cl.820.221 of Schedule 2 to the Regulations.

    Are the additional r.2.03A criteria for a de facto relationship met?

19. Persons claiming to be in a de facto relationship for a partner visa must also meet the additional criteria in r.2.03A of the Regulations. These are: that the couple are both at least 18 years of age and with limited exceptions that the applicant has been in the de facto relationship for at least the period of 12 months ending immediately before the date of the application, unless he or she can establish compelling and compassionate circumstances for the grant of the visa. The requirement that the relationship existed for 12 months prior to the application does not apply in certain circumstances, where the sponsor is or was a permanent humanitarian visa holder, or for applications made on or after 9 November 2009, where the de facto relationship has been registered under a relevant State or Territory law: r.2.03(4) and (5).

20. The Tribunal is satisfied that at the time of application the parties were at least 18. As detailed above the Tribunal accepts that the parties’ de facto relationship began in May 2014. The application for the partner visa was lodged on 14 September 2015. Therefore, the applicant meets the additional criteria of r.2.03A

21. 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

22. 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 (Temporary)) visa:

    ·cl.820.211 of Schedule 2 to the Regulations; and

    ·cl.820.221 of Schedule 2 to the Regulations; and

    ·r.2.03A to the Regulations.

    Helena Claringbold
    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).