Koech (Migration)

Koech (Migration) [2020] AATA 5594 (18 November 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Edison Kiplagat Koech
CASE NUMBER:  1903697
HOME AFFAIRS REFERENCE(S):          BCC2017/4308308
MEMBER:Joseph Francis
DATE:18 November 2020
PLACE OF DECISION:  Perth
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 at the time of application;
and;
·cl.820.221(3)(b) of Schedule 2 to the Regulations at the time of this decision.

Statement made on 18 November 2020 at 12:52pm

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – genuine and continuing spouse relationship – relationship ceased – sponsorship withdrawn – compelling or compassionate reasons – child of the relationship – declared partners in Tax Returns – shared household and parenting responsibilities – seeking access to their child – social recognition of the relationship – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5, 65
Migration Regulations 1994, Schedule 2, cls 820.211, 820.221; r 1.09, 2.03
CASES
Guven v MIMA [2006] FMCA 311
He v MIBP [2017] FCAFC 206
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

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).
The applicant applied for the visa on 16 November 2017 on the basis of his relationship with his 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 (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.
The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.820.211(2) because the delegate was not satisfied the parties provided each other with companionship and emotional support, or that they had a joint commitment to a shared life from the time of application.
The applicant appeared before the Tribunal on 14 August 2020 to give evidence and present arguments.
The applicant was represented in relation to the review by his registered migration agent, Mr Clive Greeves. The representative attended the Tribunal hearing.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
The issue in the present case is whether the visa applicant and sponsor were in a genuine de facto relationship as required by section 5CB at the time of application.
Further, as the sponsorship was withdrawn, the Tribunal considered whether compelling or compassionate reasons were sufficient for a waiver of time of decision criteria as required by regulation r.2.03A(3).
Whether the parties are in a spouse or de facto relationship
Clause 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. In the present case the applicant claimed to be the de facto partner of the sponsor who is an Australian Permanent Resident.
Are the parties in a de facto relationship?
'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).
In forming an opinion whether they were in a de facto relationship at the time of the visa application, 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.
Consideration of evidence
The Tribunal was in receipt of documentary evidence that was not submitted for consideration prior to the delegate’s decision.
The following evidence was provided to the Tribunal:
·      Westpac bank statements in the name of the visa applicant, addressed to the shared address with the sponsor,
·     Anglicare Family Dispute Resolution correspondence dated 27 February 2020,
·     Child support statements paid by the visa applicant,
·     Social media photographs and post by the visa sponsor as evidence that the parties were engaged to be married, and that the visa applicant and sponsor were in a genuine de facto relationship,
·     Photographs showing the visa applicant at the birth of the parties’ child, and in various settings with his family and the parties’ mutual child,
·     Statement from Jude Kipkosgei in support of the relationship, signed and dated 18 March 2020,
·     Statement of attendance from Anglicare Family Relationship Centre dated 18 June 2020,
·     Certificate by family dispute resolution practitioner dated 6 July 2020,
·     Family Court of Australia case information affidavit for visa applicant seeking access to his child,
·     Statement by Damaris Kipkoech, sibling of the visa applicant, in support of the relationship,
·     Statement by Perisi Cherutich, mother of the visa applicant, in support of the relationship,
·     Form 888 statement by John Piya in support of the relationship,
·     2016-17 Australian tax return for visa applicant indicating the former sponsor was his spouse for the entire financial year,
·     2017-18 Australian tax return for visa applicant indicating the former sponsor was his spouse for the entire financial year; and,
·     Form 888 from Margaret Munroe, former landlord of the visa applicant, in support of the relationship.
The Tribunal notes that the department file contained section 376 certificate relating to confidential information provided to the department. The information suggested that false statements had been submitted in support of the visa application. In consideration of the date and information that was included under the s376 certificate, The Tribunal is satisfied that the allegation was in fact in relation to the visa application of the sponsor with her previous relationship and was not related the current visa application or applicant. The Tribunal therefore placed no weight on the information.
The Tribunal considered each matter in r.1.09A(3)(a), (b), (c) and (d), and any other circumstances of the relationship under r.1.09A(2).
In order to fully appreciate the relationship, the Tribunal has accepted the following timeline of events between the parties.
The visa applicant first arrived in Australia on 29 February 2016 as the holder of a TU-572 visa. The parties met on 1 August 2016 and commenced living together in de facto relationship on 1 October 2016.
The subclass 820 visa application was lodged on 16 November 2017.
The applicant’s partner withdrew sponsorship on 13 May 2018.
The visa applicant’s child was born on 10 August 2018.
The delegate refused to grant the visa on 6 February 2019.
Further, the Tribunal accepts that the applicant maintained a cordial relationship with the former sponsor, as evidenced by the photographs of the parties with their child, at the time of birth and subsequently throughout 2019.
The Tribunal accepts the oral evidence of the visa applicant that from the end of 2019, the former sponsor withdrew access of the visa applicant to his child, and as such the visa applicant has initiated counselling and proceedings in the Family Court of Australia to seek access orders.
Financial aspects of the relationship
The Tribunal considered the further evidence of the 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.
The Tribunal received evidence that the parties declared each other as partners in their Australian Tax Returns from 2016 to 2018. The Tribunal places some weight on this evidence. The Tribunal accepts that at the time of application, the parties shared the cost of their household and maintained a degree of financial sharing commensurate of the claimed genuine de facto relationship.
Nature of the household
The Tribunal considered the nature of the household – including any joint responsibility for care and support of children; parties’ living arrangements; and any sharing of housework.
The Tribunal accepts the visa applicant contributed to the parenting of the sponsor’s first child from a previous relationship. After the sponsorship was withdrawn on 13 May 2018, the visa applicant continued to support his sponsor, renting a property near the sponsor in order to continue to assist with her pregnancy for the couple’s child. After their child was born, the visa applicant continued to contribute to raising the children, until later in 2019.
The Tribunal accepts the evidence from the visa applicant that at the time of the visa application, and for a period after, they shared housework, with the majority being undertaken by the visa applicant.
The Tribunal places weight on the nature of the parties’ household.
Social aspects of the relationship
The Tribunal considered the social aspects of the relationship at the time of the visa application – 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.
The Tribunal was in receipt of photographs and social media posts, which clearly indicate the parties represented their relationship to others – including the sponsor’s parents – a genuine de facto relationship.
The Tribunal places weight on the social aspects of the relationship.
Nature of the persons’ commitment to each other.
The Tribunal considered the nature of persons’ commitment to each other at the time of the visa application – 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.
The Tribunal accepts the evidence that the parties were engaged to be married, as supported by the sponsor’s own social media posts. Further, with consideration that the parties conceived a child whilst residing together, the Tribunal is satisfied the parties saw the relationship as long-term at the time of the visa application.
Other circumstances of the relationship
The Tribunal has considered, in particular, that the visa applicant is the father of a young Australian citizen child. Whilst the visa applicant was making a significant contribution to the raising of his child, the Tribunal accepts that at the time of this decision he is endeavouring to seek orders in order to share further responsibility for the raising of his child. The Tribunal places weight on the evidence supporting his continuing attempts to contribute to raising his child. The Tribunal notes that the visa applicant makes timely contributions for child support, albeit compulsory.
Are the additional criteria for a de facto relationship met?
The visa applicant submitted that he is the father of the parties’ child, born 10 August 2018. The visa applicant submitted a copy of the child’s birth certificate to the Tribunal which indicates that he is her father.
There is no dispute that the visa applicant was not, at the time of the Tribunal’s decision, the spouse or de facto partner of the former sponsor. He therefore does not meet the criteria in cl.820.221(1)(a). No claims have been made that the visa applicant meets the criteria in cl.820.221(2). Clause 820.221(3) provides the following:
(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)
(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;
(ii) the applicant:
(A) has custody or joint custody of, or access to; or
(B) has a residence order or contact order made under the Family Law Act 1975 relating to;
at least 1 child in respect of whom the sponsoring partner:
(C) has been granted joint custody or access by a court; or
(D) has a residence order or contact order made under the Family Law Act 1975 ; or
(E) has an obligation under a child maintenance order made under the Family Law Act 1975, or any other formal maintenance obligation.
The visa applicant claimed to meet these criteria on the basis that the relationship between him and the former sponsor was a genuine de facto relationship at the time of application, the relationship had subsequently ceased, and the parties have a dependent child. Additionally, the sponsor has an obligation to contribute to maintenance of the child.
The provisions of cl.820.221(3) indicate that a relevant genuine partner relationship within the meaning of the Act must have existed prior to the relationship ceasing and visa applicant would have otherwise met the criteria of the applicable subclause in cl.820.211. This means that any relationship which has ceased must have been one which would have otherwise met the requirements of the relevant legislation.
This approach was approved in the matter of Guven v MIMA [2006] FMCA 311 at [22]-[26]. In that case Harnett FM found that when considering the grant of a Subclass 100 Partner (Permanent) visa it was open for the Tribunal to consider whether at any point of time the relationship between the parties could properly be regarded as a spousal relationship within the meaning of the Regulations. Accordingly, before assessing whether the visa applicant satisfies the exception provided in cl.820.221(3)(b)(ii), the Tribunal must assess whether at any point of time the parties were in a spousal relationship within the meaning given to it in the Regulations. The Tribunal must also consider whether the parties were in a spousal relationship at the time of application for the purposes of cl.820.211(2).
The Tribunal is satisfied that the visa applicant meets this criterion at the time of the visa application.
On the evidence before the Tribunal the requirements of cl.820.211(2) were met at the time of application, and cl.820.221(3) are met at the time of this decision.
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
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 at the time of application;
and,
·cl.820.221(3)(b) of Schedule 2 to the Regulations at the time of this decision.
Joseph Francis
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).

[2020] AATA 5594

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Remedies