Larrass (Migration)

[2017] AATA 759

Larrass (Migration) [2017] AATA 759 (3 May 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Anne-Charlotte LarraB (Larrass)

CASE NUMBER:  1517504

DIBP REFERENCE(S):  BCC2014/2614542

MEMBER:Nicholas McGowan

DATE:May 3, 2017

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 (Temporary)) visa:

·     cl.820.211(2) of Schedule 2 to the Regulations;

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

·     r.2.03A.

Statement made on 03 May 2017 at 12:02pm

CATCHWORDS

Migration – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner (Temporary)) – Evidence of genuine relationship – Financial commitments – Nature of household – Social recognition of relationship – Family integration

LEGISLATION

Migration Act 1958, ss 5CB, 65

Migration Regulation 1994, Schedule 2, cl 820.211, r 1.09A, r 2.03A

STATEMENT OF DECISION AND REASONS

1. German-born visa applicant, Anne-Charlotte LarraB, applied for the temporary partner visa on 7 October 2014. She did so based on her relationship with her Brisbane-born partner Daniel Singer. The Department refused to grant her the visa on 17 December 2015. A department request to the applicant for additional information had gone unanswered at that time. The applicant claims her previous agent never conveyed that request to her. The Tribunal accepts this based on her explanation in the pre-hearing submission, and the oral evidence provided at the hearing. In this regard, the Tribunal is mindful of the decision by the Department of Immigration to bar that agent (for five years) on 22 June 2016 (T/folios 77-88).

2. The applicant appealed her visa refusal to this Tribunal on 17 December 2015. The Tribunal assigned Member McGowan the applicant’s case on 26 October 2016. A public hearing was scheduled for December 2016, but was later postponed by the Tribunal. The rescheduled hearing occurred on 7 March 2017. The applicant, her sponsor and applicant’s sister (who is in Australia for three weeks visiting her sister) attended. The applicant was represented by her new agent. The applicant and her sponsor provided the Tribunal with significant documentary evidence. In many instances, this evidence spoke directly to the detailed account they each provided to the Tribunal in the form of a statutory declaration detailing their relationship (T/folios 151-153). Given the significant documentary evidence now on the Tribunal’s file (T/folios 13-156), the Tribunal could have made a decision ‘on the papers’, however, it did not. In this Member’s view, it is preferable to meet and speak with the parties, as circumstances frequently change. In addition, prudent testing of the all evidence (no matter how clear-cut it may appear), assists in ensuring a robust decision, particularly as this is on a matter of appeal.

3. During the public hearing, the Tribunal spoke with each of the three witnesses. It was clear from the oral evidence of the applicant herself, and her partner, that they are more than just ‘boyfriend and girlfriend’. This was one of the concerns held, rightly in the Tribunal’s opinion, by the department. There were many aspects of this application that fed into this view, including (for example) the sponsor’s (previous) assigning the applicant as a one-third beneficiary to his superannuation entitlement (after his mother and father). In this regard, the Tribunal notes this arrangement is no longer in place, and the applicant is assigned as the sole beneficiary. Moreover and simply put, the department did not have the weight of documentary evidence (at the time of their decision) that the Tribunal now has. Importantly, much of the evidence clearly corroborates the applicant and her sponsor’s claims with regards to the mandated 1.09A regulatory considerations, namely: their living arrangements; the nature of their households (including relevant tenancy documents); the nature of the commitment between them; and the nature of their social and financial relationship (both at time of application and since): for the purposes of assessing whether 5CB ‘conditions’ exist.

4. The applicant, and her sponsor’s oral evidence, throughout the public hearing, was consistent and spontaneous, as was the applicant’s sister’s. The integration of both parties lives with the other, and their respective families, is clear, not only from the numerous statutory declarations (T/folios 138-145) now on file from close family and friends, but including prevailing circumstances such as the parties being chosen to be godparents to one of the applicant’s cousin’s child. The emotional support they give one another, and their articulated confidence in the longevity of their own relationship going forward, is not only mutual but appears firmly founded, given their oral evidence. They both speak of a long life together, and plan to marry. To this end the sponsor recently asked the applicant’s parents (who were visiting Australia, and holidayed with them in Fiji) whether he could propose marriage to their daughter (the applicant).

5. Given all of the evidence in this case (and noting the parties relationship certificate: T/folio 153), the Tribunal is satisfied the applicant meets the definition of ‘de facto partner’ as contained in s.5CB of the Migration Act: inclusive of 5CB (2)(a), (b), (c)(i), and (d); and the additional criteria: r.2.03A. Accordingly, the applicant meets the requirements of cl.820.211(2)(a): cl.820.211(2). Further, as the applicant continues to meet the criteria in cl.820.211(2), the applicant also meets cl.820.221 at the time of decision. Accordingly, the visa application is sent back to the department to consider the remaining criteria.

   
   
   

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   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).