Li (Migration)

[2018] AATA 5116

Li (Migration) [2018] AATA 5116 (15 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Xuan Li

CASE NUMBER:  1723987

DIBP REFERENCE(S):  CLF2014/43964

MEMBER:Mark O'Loughlin

DATE:15 November 2018

PLACE OF DECISION:  Adelaide

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 (c) of Schedule 2 to the Regulations

·r.2.03A

Statement made on 15 November 2018 at 3:34pm

CATCHWORDS

MIGRATION – Partner (Residence) (Class BS) visa – Subclass 801 (Partner) – genuine and continuing partner relationship – limited joint financial commitments – applicant pregnant with the sponsor’s child – six years co-habitation – sharing responsibility for the housework – joint social activities – decision under review remitted      

LEGISLATION

Migration Act 1958, ss 5, 65
Migration Regulations 1994, Schedule 2, cls 801.221; rr 1.09A, 2.03

CASES

He v MIBP [2017] FCAFC 206

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 18 September 2017 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 12 March 2014 on the basis of her relationship with her 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. 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.801.221 (2) because the applicant did not satisfy the delegate that she was the sponsor’s de facto partner as defined in s 5 CB of the Act.

4. The applicant appeared before the Tribunal on 24 September 2018 to give evidence and present arguments. The Tribunal also received oral evidence: David Geoffrey Kemp, Masaki Ivan Sunk, Xiao Qian Wang, and Xin Yang He. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

5. The applicant was represented in relation to the review by her registered migration agent who 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 the parties are in a 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. 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. 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).

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

11. Background

12. The applicant was born in China on 27 September 1988 and at the date of this decision is 30 years old.

13. She came to Australia on the 8^th of November 2011 and met the sponsor on the 26^th of that month.  She was here on a student visa which was valid until March 2014.

14. She gave evidence to the Tribunal that she and the sponsor were immediately attracted to each other and committed to each other informally on the 4^th of December 2011.

15. The sponsor was born on the 31 August 1992 and at the time of the hearing was 26 years old.

16. They moved in together in July 2012 and have essentially lived together in the same unit in Unley ever since.  There have been some temporary separations when the sponsor was taken overseas by his father or during times that he has needed to support his stepmother but the Tribunal accepts that none of these periods apart have been intended to be permanent separations.

17. Financial Aspects of the Relationship  Including;

18. Joint Ownership of Real Estate or Other Major Assets.

19. There is no evidence that the couple own real estate or other major assets.  The applicant and sponsor both gave evidence that they would like to buy a house together but that their financial circumstances and the uncertainty regarding the applicant’s residency make it difficult.  The Tribunal accepts this evidence and gives this consideration limited weight in considering this application.

20. Joint Liabilities.

21. There are no significant joint liabilities that the parties have incurred, essentially for the same reasons.  The applicant gave evidence that in the early days of their relationship she was a student studying finance and accounting.  She was not earning much.  The sponsor was also a student and the couple did not have much money.

22. The sponsor worked at the Repatriation Hospital and the applicant worked in hospitality.

23. The applicant said that she got a job at the Casino and moved from working in the bar to working as a VIP host.  She usually makes $1,800.00 to $1,900.00 per week net in that work.

24. The sponsor studied information technology and then nursing but finished before he got his nursing degree.  He has stopped studying.

25. He told the Tribunal that he worked at the Repatriation Hospital for about 9 years in total and that he was retrenched in November 2017 as part of the hospital’s closure.  He said that he received a fairly generous package that enabled him to live while working part time for a security company doing events, even though he often only got one or two shifts per week.

26. He said that lately that has reduced even further and general financial pressure has resulted in him starting to look for full time work.

27. They gave evidence that they lease their unit together and they share living expenses.  There is a joint bank account but they each keep separate accounts and make contributions to the joint account to cover expenses as they arise.

28. The Tribunal accepts the truth of the parties’ testimony in relation to the above matters.

29. The Extent of Pooling of Financial Resources Especially Major Financial Commitments.

30. Aside from the pooling of financial resources needed to cover living costs the couple have not incurred financial commitments.  The Tribunal accepts that there are impediments to them incurring significant financial commitments and affords this consideration limited weight.

31. Whether One Person in the Relationship Owes Any Legal Obligation in Respect of the Other.

32. The Tribunal was not furnished with evidence of any legal obligations owed by either party in respect of the other.

33. The Basis of Any Sharing of Day to Day Household Expenses

34. The joint bank account shows sharing of many day to day household expenses including rent, utilities, and groceries.  The Tribunal accords this significant weight in considering the financial aspects of the parties’ relationship.

35. On balance the evidence of the financial aspects of the relationship is fairly limited but this is not surprising in the circumstances .

36. The Nature of the Household  Including;

37. Any Joint Responsibility for the Care and Support of Children.

38. There are no children of the relationship.  In the days before the hearing evidence was presented to the Tribunal that the applicant is pregnant.  Her evidence, which the Tribunal accepts, was that it was the sponsor’s child.

39. The applicant said that the child had not been planned and would be difficult to fit in to the couple’s current life. The sponsor’s evidence was essentially consistent with that.

40. The Tribunal put to the applicant that in the circumstances the applicant is the main breadwinner for the couple and that her work may not suit pregnancy and motherhood. 

41. When asked whether the couple may have to decide whether to continue with the pregnancy and she quite frankly conceded that that may be the case.  She said that she hopes that her parents in China may be able to help them if they do decide to proceed with the pregnancy.

42. The Tribunal was struck by the applicant’s candour in a situation in which, superficially at least, it might have suited her much better to have insisted that they were going to proceed with the pregnancy.

43. The Tribunal cannot accord the care and support of children any weight in considering this application but finds that the parties’ frank answers in respect of a difficult topic tend to support the truthfulness of their testimony in general.

44. The Living Arrangements of the Persons.

45. The parties both gave evidence, which the Tribunal accepts, that they have lived in the same 2 bedroom unit in Unley for about 6 ½ years.

46. The Tribunal accords this consideration substantial weight in assessing this application.

47. Any Sharing of the Responsibility for Housework

48. The applicant gave evidence, which the Tribunal accepts, that the sponsor contributes to the housework with some reluctance and that the applicant does the rest.  This has been the case since they moved in together in June 2012.  The Tribunal accords this consideration limited weight in assessing this application.

49. The Social Aspects of the Relationship Including;

50. Whether the Persons Represent Themselves to Other People as Being In A De-Facto Relationship With Each Other

51. The parties gave evidence which the Tribunal accepts, that the applicant generally works on the weekend and that their relatively limited finances are a restriction on their ability to socialise but they do socialise together and attend functions as a couple.  The Tribunal accepts that the parties do represent themselves to other people as being in a de-facto relationship and have done so since June 2012.

52. The Opinion of the Persons’ Friends and Acquaintances About the Nature of the Relationship

53. The Tribunal heard from several witnesses who confirmed that they see the couple as being in a de-facto relationship and have done so since they moved in together.  The Tribunal accepts that evidence.

54. Any Basis on Which the Persons Plan and Undertake Joint Social Activities

55. Again, the parties’ evidence about social activities was limited.  They have travelled to China to meet the applicant’s family twice.  They provided what might be described as “the usual” evidence of informal socialising in the form of photographs and copies of text messages.

56. The Tribunal finds that the couple do plan and undertake joint social activities together at the time of this decision and accords this consideration some weight.  There is less evidence of the planning and undertaking of social events at the time of application although the applicant and the sponsor did not believe that there had been any significant change and so the Tribunal accepts that this was also the situation at the time of the application.

57. The Nature of the Persons Commitment to Each Other Including

58. The Duration of the Relationship

59. The parties both gave evidence, which the Tribunal accepts, that their relationship has lasted nearly 7 years.  The Tribunal finds that this consideration is one that should be given significant weight in favour of the application.

60. The Tribunal notes that the parties were both asked about an affair that the sponsor had with another woman over the course of about 12 months.  The Tribunal heard and accepts that this affair was a source of considerable distress to the applicant and also significant pressure on the relationship. 

61. The Tribunal accepts that the parties had discussed the issue frankly and that the relationship between them survived.  The Tribunal does not find that the affair caused a breakdown of the relationship between the applicant and the sponsor and accepts that the relationship has been exclusive save for this incident.

62. The Length of Time During Which the Persons Have Lived Together

63. The Tribunal accepts the evidence of both parties that the parties have lived together since the middle of 2012 making a total of just under 6 ½ years at the time of this decision and about 1 year and 9 months at the time of the application.

64. The Degree of Companionship and Emotional Support that the Persons Draw From Each Other

65. The parties both gave evidence that they have drawn significant emotional support from each other since they started their relationship in December 2011.  The Tribunal accepts this evidence and accords this consideration substantial weight.

66. Whether the Persons See the Relationship as a Long Term One

67. The parties both gave evidence that they see the relationship as a long term one.  The sponsor gave evidence that if the application is not successful and the applicant is obliged to return to China, his hope would be to go with her and to try to arrange their return to Australia from there.

68. The Tribunal accepts this evidence and finds that the parties view the relationship as a long term one.  The Tribunal accords this consideration some weight.

69. The Tribunal accepts the evidence of the sponsor that he terminated his affair when the other party involved began to suggest that he should commit to her in preference to the applicant.  The Tribunal accepts that he did not view the affair as something that should be allowed to destroy his relationship with the applicant and that she, although distressed, was prepared to accept his contrition.

70. On the basis of the evidence set out above the Tribunal is satisfied that the parties have a mutual commitment to a shared life to the exclusion of others, that their relationship is genuine and continuing, that they live together and that they are not related by family.

71. 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?

72. 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.

73. 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.

74. 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 Tribunal has heard and accepts that the parties have relevantly shared finances, pooled financial resources, shared day to day household expenses, maintained relevant living arrangements, shared housework, represented themselves to other people as being in a de-facto relationship, planned and undertaken joint social activities, lived together, and provided each other with companionship and emotional support since they started to cohabit in mid-2012.  .  Having considered all of the circumstances of the relationship, the Tribunal is satisfied that for at least the 12 month period ending immediately before the date of application, the parties had been in a de facto relationship as defined by s.5CB of the Act, in that they had a mutual commitment to a shared life to the exclusion of all others, the relationship was genuine and continuing, and the couple lived together, or did not live separately and apart on a permanent basis. For these reasons the Tribunal is satisfied that the applicant meets the additional criteria prescribed in r.2.03A.

75. 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

76. 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)(c) of Schedule 2 to the Regulations

    ·r.2.03A

    Mark O'Loughlin
    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).