KHAN (Migration)

[2018] AATA 5087

KHAN (Migration) [2018] AATA 5087 (3 December 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr RANA SHAHRAM KHAN

CASE NUMBER:  1620273

DIBP REFERENCE(S):  CLF2013/33964 CLF2016/82482

MEMBER:M. Edgoose

DATE:3 December 2018

PLACE OF DECISION:  Melbourne, Victoria

DECISION:The Tribunal remits the application for a Partner (Residence) (Class BS) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 801 (Partner) visa:

·cl.801.221(2) of Schedule 2 to the Regulations

·r.2.03A

Statement made on 03 December 2018 at 1:34pm

CATCHWORDS
MIGRATION – Partner (Residence) (Class BS) visa – Subclass 801 (Partner) – genuine continuing relationship – de facto relationship registered – purchase of land – evidence of longterm commitment – decision under review remitted

LEGISLATION

Migration Act 1958, ss 5F(2)(c), 5CB(2)(b), 65
Migration Regulations 1994, Schedule 2, cl 801.221(2), rr 1.09A(3), 2.03A

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 Immigration on 25 November 2016 to refuse to grant the applicant a Partner (Residence) (Class BS) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 19 February 2013 on the basis of his relationship with his sponsor. At that time, Class BS contained only one subclass: Subclass 801 (Partner). The criteria for the grant of this visa are set out in Part 801 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The primary criteria must be satisfied by at least one applicant. Relevant to this matter, the primary criteria include cl.801.221(2).

3. The delegate refused to grant the visa on the basis that the applicant did not satisfy cl.801.221(2) because the delegate was not satisfied that the claimed de facto relationship between the applicant and the sponsor was genuine and continuing; and hence, that the applicant was not the spouse or de facto partner of the sponsor as defined under sections 5F(2)(c) and 5CB(2)(b) of the Act.

4. The applicant appeared before the Tribunal on 10 September 2018 to give evidence and present arguments. The Tribunal also received oral evidence from Miss Suh Be.

5. The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal 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 issue in the present case is whether, at the time of this decision, the applicant is the spouse or de facto partner of the sponsor for the purposes of the Act.

   Whether the parties are in a spouse or de facto relationship

8. Relevantly to this matter, cl.801.221(2)(c) requires that at the time of this decision, the applicant is the spouse or de facto partner of the sponsoring partner, who must be an Australian citizen or Australian permanent resident or an eligible New Zealand citizen who was specified in the Subclass 820 visa application as the spouse or de facto partner of the applicant. In the present case the applicant claims to be the de facto partner of the sponsor who is an Australian citizen and was identified in the related Subclass 820 visa application approved by the Department on 19 February 2013. On the evidence before it, the Tribunal is satisfied that the sponsor is the ‘sponsoring partner’ of the applicant.

   Are the parties in a de facto relationship?

9. As the parties are not validly married, 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).

10. 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.

    Financial aspects of the relationship

11. The applicant stated to the Tribunal and provided documentation regarding the financial aspects of the relationship. The material included the couple’s two joint banks accounts; a joint Com Sec Trading account; the rental agreement in both the couple’s names and the applicant’s brother’s name; the joint utility and other household bills. The applicant informed the Tribunal that the only one bank account was not in joint names and that account is for when he drives Uber for taxation purposes.

12. The applicant gave oral evidence that the couple pool their financial resources and jointly contribute to the weekly household expenses. As the couple share the house with the applicant’s brother and his family they split the overall household expenses between both couples. They spend approximately $150 per week at Coles and the brother’s wife orders their meat online. The household runs an excel spreadsheet and at the end of every month the bills are split between the two couples. The household cleaning is mainly completed by the sponsor and the brother’s wife.

13. The applicant said to the Tribunal that they have lived together permanently since January 2013 until now and currently rent in Pascoe Vale at a cost of AUD$1739 per month. They have lived at this property since December 2016. The rent is split between the two couples and paid by direct debit through a joint account. The applicant and sponsor purchased land together in early 2018 and plan to build their future home together. 

14. On consideration of the evidence submitted and the oral evidence provided at hearing, the Tribunal is satisfied that the financial aspects of the relationship indicates that both the applicant and sponsor were in a genuine relationship at the time of the application and at the time of this decision.

    Nature of the household

15. The applicant informed the Tribunal about the nature of the couple’s household, including their living arrangements, daily work, social and recreational routines. As stated above, the couple share a house with the applicant’s brother and his family and that they as a whole share the general household jobs and splits the bills between the two couples.

16. The applicant stated that the sponsor and the applicant’s brother wife do the majority of the cooking in the home and the housework. The sponsor and applicant’s brother wife does the weekly shop at Coles generally together and the applicant’s brother wife purchases the meat for the household online.

17. The evidence of the nature of the household clearly indicates to the Tribunal that the applicant and sponsor live together and share responsibility of the housework and other domestic duties. The Tribunal finds no evidence that the parties have joint responsibility for the care and support of children. Overall the Tribunal is satisfied that the nature of the household that both the sponsor and applicant are in a genuine and continuing de facto relationship.

    Social Aspects of the Relationship

18. The Tribunal has considered the substantial photographic evidence submitted and the oral testimony at hearing regarding the social aspects of the relationship. The photographic evidence confirmed the couple’s social and recreational activities both locally and interstate. The photographs show the couple together and in the company of family members from both parties’ and friends at a wide range of settings.

19. The applicant stated that he has a close relationship with his brother. The applicant informed the Tribunal that the sponsor’s parents only found out about the relationship in January 2018. Before this time the sponsor’s parents had known about the applicant but did not know about their relationship. The applicant said that the sponsor’s father suffers from a range of mental health issues and that the sponsor only sees her parents approximately once a month. The applicant stated that the sponsor is closer to her mother and that she sees her on a more regular basis than her father.

20. The applicant stated that they do not go out all that much as they are frantically saving for their house and that their most recent dinner out was at a Chinese restaurant on Sydney Road called Mama Wong Restaurant on a Tuesday night in September 2018.

21. In 2017 they went on a holiday together to the Gold Coast and during their time on the Gold Coast they stayed in an apartment and visited Wet n Wild and the other theme parks. They also visited Phillip Island and a range of other beaches in Victoria.

22. The Tribunal asked the applicant what they do together on weekends and the applicant responded that the sponsor works Wednesday to Saturday nights doing evening shifts and that on a Saturday night he does Uber driving. Generally Sundays and Mondays are their days off from work and they spend it together watching television and doing the laundry.

23. On the basis of the evidence before the Tribunal, the Tribunal considers the applicant and sponsor present themselves to other people as being in a genuine de facto relationship with each other and in the opinion of the couple’s family members, friends and acquaintances. The Tribunal is therefore satisfied that the social aspects of the relationship show that the couple are in a genuine and continuing de facto relationship between the parties.

    Nature of the person’s commitment to each other

24. The couple first met in August 2011 at the photocopier while studying at MIT and have been together ever since. On 5 December 2012 the couple formally registered their relationship and they have lived together since January 2013.

25. The applicant sees that their relationship will be a lifelong one considering they obtained a relationship certificate in December 2012 as stated in paragraph 30 and that they recently purchased land together to build their future family home. The applicant stated that they are planning for children in the future once they move into their new house which is still to be built. Getting married at this point in time is not their plan but it could be something that they look at in the future.

26. Overall the Tribunal is satisfied that the nature of the person’s commitment to each other will be a long-term one; and that the duration of the relationship will be long lasting considering the substantial amount of time they have already lived together; and that the degree of companionship and emotional support they draw from each other is evident. The Tribunal is satisfied of the commitment both the applicant and sponsor have towards each other and that they are in a genuine de facto relationship at the time of this decision.

27. On the basis of the above the Tribunal is satisfied that the requirements of s.5CB(2) are met at the time of this decision. Therefore, the applicant meets cl.801.221(2)(c).

    Are the additional criteria for a de facto relationship met?

28. 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.  

29. 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.

30. The applicant has provided evidence that the relationship was registered on 5 December 2012 (DIBP Folio 208) 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. For these reasons, the Tribunal is satisfied that the applicant meets the additional criteria prescribed in r.2.03A.

31. 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 801 visa.

    DECISION

32. The Tribunal remits the application for a Partner (Residence) (Class BS) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 801 (Partner) visa:

    ·cl.801.221(2) of Schedule 2 to the Regulations

    ·r.2.03A

    M. Edgoose
    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).