Khine (Migration)

[2023] AATA 3119

Khine (Migration) [2023] AATA 3119 (18 September 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Zoe Angela Khine

REPRESENTATIVE:  Mr Nigel James Dobbie

CASE NUMBER:  1835464

HOME AFFAIRS REFERENCE(S):          BCC2016/3119264

MEMBER:Edward Howard

DATE:18 September 2023

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) of Schedule 2 to the Regulations

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

·reg 2.03A

Statement made on 18 September 2023 at 12:49pm

CATCHWORDS

MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – genuine and continuing relationship – Relationship Certificate – cohabitation before relationship ceased – pooled financial resources – joint social activities – claimed family violence – expert reports by psychologist and Mental Health Social Worker – decision under review remitted      

LEGISLATION

Acts Interpretation (Registered Relationships) Regulations 2008
Migration Act 1958, ss 5, 65
Migration Regulations 1994, Schedule 2, cls 820.211, 820.221; rr 1.09, 1.23-1.25, 2.03
Relationships Act 2008 (Vic)

CASES

Ally v MIAC [2008] FCAFC 49
Bretag v IRT [1991] FCA 582
He v MIBP [2017] FCAFC 206
Jayasinghe v MIMA [2006] FCA 1700

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 (Cth) (the Act).

2. The applicant applied for the visa on 20 September 2016 on the basis of her relationship with her 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 (Cth) (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 applicant did not satisfy cl 820.211.

4. The applicant appeared before the Tribunal on 12 September 2023 to give evidence and present arguments.

5. The applicant was represented in relation to the review. The representative attended the Tribunal hearing.

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

   Issues And Law

7. There is a two-stage process for onshore Partner visas. A visa applicant must first hold a provisional visa, enabling them to remain in Australia on a temporary basis, prior to the grant of a permanent visa. The grant of a permanent visa would generally depend on whether the relationship has continued for a period of at least two years. In this matter, the Tribunal is considering the first, temporary stage.

8. Where the Tribunal is considering a criterion that requires the definition of spouse or de facto partner to be met at the time of the visa application, the information supplied in relation to the reg 1.09A(3) matters may relate to circumstances after the time of application. In forming a view of the relationship at the time of application, the Tribunal must consider all relevant evidence, which may include evidence of events after the date of application insofar as it assists in the task of determining whether the visa applicant and the sponsor were in a partner relationship at the time of the application. Evidence of events after the visa application is relevant if it tends logically to show the existence or non-existence of facts relevant to the issue to be determined.[1] The Tribunal observes this to be a matter where the visa applicant submitted limited documentary evidence in support of his visa application to the Department of Home Affairs and then furnished the Tribunal with further evidence that was unavailable to the primary decision maker.

   [1] Ally v MIAC [2008] FCAFC 49 at [32]–[35]; Jayasinghe v MIMA [2006] FCA 1700 at [35], citing MIEA v Poche (1980) 4 ALD 139 at [24] per Deane J which held that evidence of subsequent events may be taken into account if it ‘tends to logically show the existence or non-existence of’ the relationship at that particular time; and see also Bretag v IRT [1991] FCA 582 at [13]–[15].

9. The issue in the present case is whether at the time of the visa application and the time of this decision, the review applicant is the spouse or de facto partner of the sponsor.

   Whether the parties are in a spouse or de facto relationship

10. 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 review 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 review applicant claims to be the de facto partner of the sponsor who is an Australian citizen.

    Are the parties in a de facto relationship?

11. '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).

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 reg 1.09A(3) which is attached to this decision. Each of the specific matters contained in reg 1.09A(3) are effectively questions which must be answered: He v MIBP [2017] FCAFC 206.

13. Persons claiming to be in a de facto relationship for a partner visa must also meet the additional criteria in reg 2.03A. Both members of the couple must be at least 18 years old: reg 2.03A(2). In this case, at the time of application, the review applicant and the sponsor were at least 18 years old.

14. The review applicant must have been in the de facto relationship for at least the 12-month period ending immediately before the date of the application: reg 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.

15. The parties provided a Relationship Certificate evidencing the registration of their de facto relationship on 26 August 2016. Therefore, the applicant has provided evidence that the relationship is registered under the Relationships Act 2008 (Vic) as a kind of relationship prescribed in the Acts Interpretation (Registered Relationships) Regulations 2008: per reg 2.03A(5). Accordingly, the 12-month requirement does not apply.

16. For these reasons the Tribunal is satisfied that the review applicant meets the additional criteria prescribed in reg 2.03A.

    Are the other requirements for a de facto relationship met?

    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.

17. The review applicant is employed at the Sailors Bay Aged Care Residence, Northbridge, New South Wales. The visa applicant is employed as a Rostering Coordinator. The review applicant currently works approximately 50 hours per week, earning somewhere in the vicinity of $1400 a fortnight on a net basis. It is her intention to continue her further studies in order to become an Aged Care Quality Assessor.

18. The evidence of the review applicant is that the parties committed to a de facto relationship in June 2015. Whilst they did not start cohabiting until October 2016, they spent time each week staying at each other’s residence.

19. Once they commenced cohabiting, the parties became joint tenants at their residence in Granville, New South Wales. The parties provided a residential tenancy agreement over that property in joint names, commencing on 7 October 2016.

20. The review applicant has provided evidence of the financial relationship with the sponsor including statements of her bank accounts with the Commonwealth Bank and the ANZ bank. Statements are also provided of the joint Westpac bank account which, at the review applicant’s concession, had only limited use.

21. The evidence supports the review applicant’s assertion that the expenses of the relationship were predominantly paid by her, as the sponsor was not in employment during the period of cohabitation. The review applicant was employed as an aged care worker, working approximately 50 hours per week. Whilst the sponsor contributed in a limited way, according to her means, the review applicant was responsible for the main expenses including rent and utilities.

22. Whilst the parties do not own a major asset such as real estate together, they did have joint liabilities in relation to the expenses associated with their rent and regular household expenses. The Tribunal is satisfied that the parties each contributed to the financial aspects of the relationship, pooled their financial resources and shared the day-to-day household expenses. The Tribunal weighs the financial aspects of the relationship in favour of the review applicant.

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

23. The parties committed to their relationship in June 2015 and from that point on spent time at each other’s residence on a regular basis. In July 2016 the parties made a decision to live together and after a period of time were able to locate a residence in Granville, New South Wales. The parties entered into a residential tenancy agreement on a joint basis for this property on 7 October 2016.

24. The parties provided a copy of the subject agreement and there is also ancillary evidence of their household address by reference to their driver’s licenses and utilities and other bills.

25. The Tribunal is satisfied that the parties’ household and living arrangements are consistent with that of a de facto couple in a genuine relationship. Based upon the evidence received, the Tribunal weighs the household aspects in favour of the review applicant.

    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.

26. The parties have provided only limited evidence of the social aspects supporting their claim of being in a genuine relationship.

27. However, the Tribunal is satisfied on the evidence that the parties represent themselves to other people as being in a long-term relationship and that they hold the favourable opinion of others about the nature of their relationship and that they plan and undertake joint social activities. The Tribunal gives some weight to the social aspects of the 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.

28. The parties first met in early 2015, committed to a relationship in June 2015 and began living together in October 2016. The parties maintained a joint residence as a de facto couple and registered their civil relationship on 26 August 2016. The parties separated in July 2018.

29. The review applicant has provided evidence to satisfy the Tribunal that until the time of separation, they were a de facto couple in a genuine relationship. As noted above, the Tribunal weighs the financial, household and social aspects of the relationship in favour of the review applicant.

30. The Tribunal is satisfied that at the time the visa application was made, the parties satisfied the definition of “de facto relationship” as defined in Section 5CB of the Act. The Tribunal is therefore satisfied that the parties’ relationship fulfilled the criteria contained in Cl.820.211(2) of the Regulations at the time the visa application was made.

31. However, the parties separated in July 2018 when the review applicant left their shared residence as a result of alleged acts of family violence including physical, emotional and psychological abuse by the sponsor.

32. Pursuant to Cl.820.221(1), in order to be eligible for the grant of a Subclass 820(UK) visa, the applicant must also continue to meet the requirements of Cl.820.211(2) at the time of this decision. Having regard to the evidence before the Tribunal of the separation of the parties, this threshold is, prima facie, unable to be satisfied. However, as the review applicant has claimed that she was subjected to family violence committed against her by the sponsor prior to their separation. Clause 820.221 can alternatively be met if, relevantly, the requirements of cl 820.221(3) are met.

33. Cl.820.221(3) of the Regulations states as follows:

    (3)  An applicant meets the requirements of this subclause if:

    (a)  the applicant would continue to meet the requirements of subclause 820.211(2), (5) or (6) except that the relationship between the applicant and the sponsoring partner has ceased; and

    (b)  either or both of the following circumstances applies:

    (i)  either or both of the following:

    (A)  the applicant;

    (B)  a dependent child of the sponsoring partner or of the applicant or of both of them;

    has suffered family violence committed by the sponsoring partner;

34. Therefore, if the Tribunal is satisfied that the review applicant would continue to meet the requirements of Cl.820.211(2) except that the relationship has ceased and, if it is satisfied that the review applicant had family violence committed against her by the sponsor, as alleged, then the review applicant will meet the requirements of Cl.820.221 at the time of the decision.

35. Regulation 1.23(9) of the Regulations states the following:

    “For these Regulations, an application for a visa is taken to include a non-judicially determined claim of family violence if:

    (a)  the applicant seeks to satisfy a prescribed criterion that the applicant, or another person mentioned in the criterion, has suffered family violence; and

    (b)  the alleged victim is:

    (i)  a spouse or de facto partner of the alleged perpetrator; or

    (ii)  a dependent child of:

    (A)  the alleged perpetrator; or

    (B)  the spouse or de facto partner of the alleged perpetrator; or

    (C)  both the alleged perpetrator and his or her spouse

    or de facto partner; or

    (iii)  a member of the family unit of a spouse or de facto partner of the alleged perpetrator (being a member of the family unit who has made a combined application for a visa with the spouse or de facto partner); and

    (c)  the alleged victim or another person on the alleged victim's behalf has presented evidence in accordance with regulation 124 that:

    (i)  the alleged victim has suffered relevant family violence; and

    (ii)  the alleged perpetrator committed that relevant family violence.”

36. Regulation 1.24 states as follows:

    The evidence mentioned in paragraph 1.23(9)(c) is:

    (a)   a statutory declaration under regulation 1.25 (which deals with statutory declarations by or on behalf of alleged victims); and

    (b)   the type and number of items of evidence specified by the Minister by instrument in writing for this paragraph.

37. Migration (Specification of Evidentiary Requirements - Family Violence) Instrument (LIN 23/026) 2023 and in particular Schedule 1 thereof, sets out the types of evidence acceptable in relation to evidence of family violence. Additionally, the schedule sets out the items of evidence that are acceptable and the information that must be included.

38. The review applicant has provided a statutory declaration dated 14 November 2022 in respect of these allegations. The Tribunal is also in receipt of a psychological report from Zeinab Allaw, Forensic Psychologist, dated 25 October 2022 and a statutory declaration from Carolyn Biggs, Accredited Mental Health Social Worker, dated 16 February 2022.

39. The statutory declaration of the review applicant and the expert reports provide extensive detail and compelling evidence of physical, emotional and psychological abuse by the sponsor against the review applicant. Each of the experts confirm that the review applicant suffered the relevant family violence as a result of the actions of the sponsor.

40. In each regard, the Tribunal finds that the evidence provided by the review applicant, Zeinab Allaw and Carolyn Biggs are conclusive in satisfying the applicable subclauses of Regulations 1.23 and 1.24 of the Migration Regulations 1994 and Schedule 1 of Migration Instrument (LIN 23/026) 2023. 

41. Having considered the evidence, the Tribunal is satisfied that the requirements of Cl.820.211(2) were met the time of the visa application. Further, the Tribunal is satisfied that the review applicant suffered family violence against her by the sponsoring partner (and otherwise in accordance with Regulation1.23) and therefore would have continued to meet the requirements of the subclause at the time of the decision but for those circumstances, hence satisfying the criteria in Cl.820.221(3).

42. The Tribunal is therefore satisfied the review applicant meets the criteria of cl 820.211(2) and cl 820.221.

43. 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

44. The Tribunal remits the applications for Partner (Temporary) (Class UK) visas, with the direction that the review 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

    Edward Howard
    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).