Kaur (Migration)

[2019] AATA 3966

Kaur (Migration) [2019] AATA 3966 (26 August 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Harpreet Kaur

CASE NUMBER:  1700454

HOME AFFAIRS REFERENCE(S):           BCC2016/3296602

MEMBER:Helena Claringbold

DATE:26 August 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(2)(a) of Schedule 2 to the Regulations; and

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

·r.2.03A to the Regulations.

Statement made on 26 August 2019 at 7:33am

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – genuine de facto relationship – share living arrangements over several countries – social aspects of relationship – commitment to each other – 12 month requirement – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5CB, 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. On 5 October 2016, Miss Harpreet Kaur (the applicant) applied for a Partner (Temporary) (Class UK) visa. The application was based on her de facto relationship with Mr Parminder Singh, the sponsor.

2. On 29 December 2016, a delegate of the Minister for Immigration and Border Protection refused to grant the visa. The delegate was not satisfied that the applicant and the sponsor are genuine spousal partners. Therefore, the applicant did not meet cl.820.211(2)(a) of Schedule 2 to the Migration Regulations 1994 (the Regulations) made under the Migration Act 1958 (the Act). On 20 May 2019, the applicant provided the Tribunal with a copy of the delegate’s decision record. This is a review of the delegate’s decision.

3. On 16 July 2019, the applicant appeared before the Tribunal, by telephone from Hong Kong to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor by telephone from Hong Kong.

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, individually and as a whole, all the evidence in the Department of Immigration and Border Protection’s (the Department’s) case file and the Tribunal’s case file and the evidence at the Tribunal hearing.

   ISSUE

6. The issue in this matter is whether the applicant is the de facto partner of the sponsor as defined in s.5F of the Act.

   BACKGROUND ON THE EVIDENCE

7. The applicant was born in 1989 in Khanna, Punjab, India. Her parents live in India. On 11 May 2015, she commenced a relationship with Mr Hariom Malik. On 28 June 2015, the applicant entered Australia as the holder of a temporary work visa with Mr Malik listed as a dependent applicant. On 10 July 2015, Mr Malik and the applicant separated and have not lived together since that time. There are no children from this relationship.

8. The sponsor was born in 1968 in Agra, India. His parents and a brother live in Australia. In 1993, he entered Australia. On 12 December 1995, he commenced a relationship with Ms Rachna Singh, whom he sponsored to Australia in July 1996. On 25 June 2015, Ms Singh and the sponsor separated. There are two children from the relationship who were born in 1996 and 2002. The children live in Australia.

9. On 14 August 2015, the parties met. On 22 August 2015, the parties committed to their relationship. On 16 August 2015, the parties moved to West Pennant Hills NSW.  In February 2017, the parties moved to the United Kingdom to enable the sponsor to meet employment commitments. The sponsor then moved to the USA and the applicant reunited with him in September 2017. In February 2019, the sponsor was relocated by his employer to the United Kingdom. In June 2019, the sponsor travelled to India for work and in July 2019 he travelled to Hong Kong, China and the applicant joined the sponsor in Hong Kong, China.

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

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

    Are the parties in a de facto relationship?

11. '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). There is no evidence before the Tribunal that the parties are married.

    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).

13. Regarding the financial aspects of the parties’ relationship, the parties told the Tribunal that the sponsor pays for all the living expenses and travel. However previously the applicant purchased household items for the parties. The parties have a joint bank account which is accessed and used jointly. Various statements have been provided and lists of money transactions from the sponsor to the applicant. The sponsor transfers money to this account and the applicant uses the account to pay for her living expenses or she utilises a credit card associated with the sponsor’s personal bank account. Although the parties state that ‘they’ purchased a property in Buffalo Grove, the property and loan for the property is in the sponsor’s name. The applicant is mentioned as the sponsor’s wife and in a power of attorney document the applicant nominates the sponsor to act on her behalf in relation to the purchase of the property. In her post Tribunal hearing submission the applicant stated ‘earlier we are purchasing ‘ Willoway’, the Tribunal has not been provided supportive information about this claim. An insurance policy for the property is in joint names. Copies of various joint tax documents have been provided and letters from the sponsor’s employer offers financial assistance to the parties to assist settlement in the UK. Other documents include the following: a 2018 E Benefit life insurance policy for $100,000 recording the applicant as a contingent beneficiary and the sponsor’s son as primary beneficiary. On the information before the Tribunal it does not accept that the parties have any joint ownership of real estate or other major assets or that they pool their financial resources, especially in relation to major financial commitments. It accepts that the parties have joint liabilities relating to their joint bank account, tax returns and insurance policies and have a legal obligation in respect of each other in these matters.  The Tribunal accepts that the parties share their day-to-day household expenses.  

14. Regarding the nature of the parties’ household, the parties lived in Australia as de facto partners from August 2015 to March 2017. As a result of the sponsor’s employment with a multinational company he is required to travel. In February 2017, the sponsor was transferred to the UK and the parties lived there for a time. Shortly after their arrival the sponsor was transferred to the USA.  At that time, the applicant returned to India to see her parents. While in India she became ill with chickenpox and her recovery was lengthy. When she recovered the sponsor was based and working in the USA.  The sponsor worked in Toronto and the USA and travelled between both places. The parties lived in rented accommodation in Toronto. In February 2019, the sponsor was transferred to the UK. In a letter dated February 2019, the employer undertakes if necessary they will maintain and accommodate the sponsor and the applicant by providing financial support to a specific level. From 11 June 2019 to 30^th June 2019 the parties lived together in Hong Kong. In a statement dated 2019 Harinder, the applicant’s landlord in Toronto stated that the parties lived with her and her family since May 2018.  At the time of the Tribunal hearing the parties were in Hong Kong. There is no evidence that the parties have any joint responsibility for the care and support of children.  The Tribunal accepts that the parties share living arrangements over several countries and when living together the applicant primarily cooks and the sponsor assists with housework. The Tribunal accepts that the parties share the responsibility for housework.

15. Regarding the social aspects of the parties’ relationship, the parties previously provided evidence that they holidayed together, watch movies at home and like to go out for dinner. The parties told the Tribunal that they socialise with the sponsor’s work colleagues and with both of their families and friends. In third party statements: Manoj, a friend of the parties stated the following: he had known the parties for 14 months.  He rented a granny flat to them. They are friends and socialise together and see each other daily. The parties’ relationship is genuine. Asanga, a neighbour of the parties in Australia stated the following: he had known the parties for 14 months. They had contact about twice weekly and he knows the parties have lived together and the relationship is genuine. Dalbir, the sponsor’s brother stated the following: he met the applicant in 2015 and the parties have been in a relationship since 2015. He travelled with the parties to Fiji in June 2016 and to Doha in 2017. He was also with the parties in 2017, when the sponsor travelled to India and visited the applicant’s home in the Punjab and in September 2017 they holidayed in Puskhar. He has been with and has driven the parties to many places.  He believes that the parties are planning a family together. Siddiq a work colleague and friend of the sponsor stated the following: he has known the sponsor since February 2017 and remains friends with him. He met the applicant in July 2017, at the Highfield Road address. He believes that the parties are a professional couple and wishes them well and hopes they have a settled life in the USA. In 2017 the applicant’s parents stated the following: the applicant visited them in December 2015, with the sponsor as her new partner. They stayed with them for a few days and had their blessing. Photographic evidence depicts the parties together and with others at different locations. The Tribunal accepts the following: that the parties represent themselves to other people as being in a de facto relationship and the opinion of their friends and acquaintances is that the parties’ relationship is genuine and that the parties plan and undertake joint social activities together.

16. Regarding the parties’ commitment to their relationship, the parties began living together in July 2015 in Australia. Their de facto relationship began in August 2015 and the parties have lived together as de facto partners since that time. As a result of the sponsor’s employment the parties lived together in the United Kingdom, India, the USA, Canada and Hong Kong.  During the parties’ relationship they have also lived separately. Regardless of where they are living the parties provide companionship and support for each other. The parties told the Tribunal that the applicant will go to the UK to live with the sponsor. They would like to settle in one place and have a child. They envisage that eventually they will live in Australia. The Tribunal accepts that the parties provide companionship and emotional support to each other and that they see their relationship as long term.

17. Although, the Tribunal has concerns about certain inconsistent information provided by the parties, overall, it 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.  On the basis of the above the Tribunal is satisfied that, the requirements of s.5CB of the Act are met, at the time the visa application was made and at the time of this decision.

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

18. 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.

19. The Tribunal is satisfied that at the time of application the parties were at least 18. 

20. There is no evidence that the relationship is registered under a relevant State or Territory law or that the sponsor held, holds or is applying for a permanent humanitarian visa, so they must meet the 12 month requirement. The parties’ de facto relationship began in August 2015.  The applicant applied for the partner visa in October 2016.  Accordingly, the Tribunal is satisfied that the applicant had been in the de facto relationship for at least the 12 month period ending immediately before the date of the application.

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

22. Therefore the applicant meets cl.820.211(2)(a) and cl.820.221 of the Regulations.

23. 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

24. 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(2)(a) of Schedule 2 to the Regulations; and

    ·cl.820.221(2) 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).