Mazhar (Migration)

[2022] AATA 2703

Mazhar (Migration) [2022] AATA 2703 (3 August 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Deeba Mazhar

CASE NUMBER:  1932810

HOME AFFAIRS REFERENCE(S):          BCC2018/1392429

MEMBER:Christine Kannis

DATE: 3 August 2022

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

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

·reg 2.03A.

Statement made on 03 August 2022 at 12:40pm

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – genuine and continuing relationship – financial, household and social aspects of relationship and nature of commitment – further information and statutory declarations provided – plan to marry when sponsor’s divorce finalised – compassionate and compelling circumstances – decision made without hearing necessary – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5CB, 65
Migration Regulations 1994 (Cth), rr 1.09A(3), 2.03A, Schedule 2, cls 820.211(2)(a), 820.221(1)(a)

CASES

He v MIBP [2017] FCAFC 206

Paduano v MIMIA [2005] FCA 211

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 25 March 2018 on the basis of her relationship with her sponsor, Mr Laurence George Howells. 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 visa was refused because the delegate was not satisfied that the applicant’s relationship with the sponsor met the definition of de facto partner under the Act and therefore she did not satisfy cl 820.211(2)(a).

4. A copy of the Decision Record was submitted to the Tribunal by the applicant for the purposes of the review.

5. No hearing was held in this case because the Tribunal determined it was able to make a favourable decision on the materials before it.

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 relationship between the applicant and the sponsor meets the definition of ‘de facto partner’ in s 5CB of the Act.

8. Prior to the scheduled hearing the applicant provided documentation which included but was not limited to bank account statements, statutory declarations, residential tenancy agreements and photographs. The Tribunal had significantly more evidence before it than was available to the delegate.

   Whether the parties are in a spouse or de facto relationship

9. 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 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 claims to be the de facto partner of the sponsor who is an Australian citizen.

10. ‘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). 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 of the relationship, the nature of the household and the persons’ 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.

    Background

11. The applicant is a Pakistani national. The sponsor is an Australian citizen.

12. The parties met on Tinder in January 2017 and first met in person in February 2017 in Perth, Australia and on 7 March 2017 they commenced cohabitation.

13. The Tribunal considered the evidence against the reg 1.09A(3) factors.

    Are the parties in a de facto relationship?

    Financial aspects

14. The Tribunal considered the evidence in relation to the financial aspects including joint ownership of assets, joint liabilities, any legal obligations owed to the other party, the extent of pooling of financial resources and any sharing of day-to-day household expenses.

15. In the Application for migration to Australia by a partner, the applicant stated in relation to the financial aspects of the relationship:

    We have a common account and for the moment Laurie is affording some aspects of life. Laurie pays the rent and I do not contribute to rent at all.

16. Commonwealth Bank statements for an account in the parties’ joint names were provided. The statements were for periods from February 2018 to December 2019. The credit transactions included cash deposits and return transactions however they consisted primarily of transfers from another Commonwealth Bank account. The debit transactions included payments for food, petrol and travel.

17. In an undated statement to the Tribunal the applicant said:

    In response to the fact that I supported Lawrence financially during the time he was out of work while I was unemployed myself in early 2019, I would like to mention that I have used my life savings to be able to contribute to our life together as a couple as well as my partners personal financial needs during the time period he was made redundant. It was also mentioned in the application that I do not contribute financially to the rent for my partners house, however it should be noticed that my name is set to go on the lease once it will be renewed in December 2019 and I will be contributing towards the rent for our mutual abode.

18. In a statutory declaration dated 28 June 2022 the applicant said in relation to the financial aspects of the relationship that she and the sponsor initially shared their household expenses because the sponsor was still working. She said they opened a joint account in 2018 and she has regularly transferred funds to the account for their living expenses. The sponsor lost his job in March 2020 and decided to retire. She said he is now a pensioner and because she has a restaurant business (purchased in April 2019), she pays for their outings. She said the sponsor is a 50% beneficiary of her superannuation policy and evidence of this was provided. In a statutory declaration dated 28 June 2022 the sponsor provided consistent information in relation to the financial aspects of the relationship.

19. There is no evidence that the parties have any significant joint assets or liabilities or have made any significant joint purchases. The applicant has provided some documentary evidence of the financial aspects of the relationship at the time of application and time of decision and based on the written evidence, the Tribunal is satisfied that they have pooled their financial resources and shared day-to-day financial responsibilities during the relationship. Further, the applicant’s financial support of the sponsor is an indicator of a genuine and continuing de facto relationship.

    Nature of the household

20. The Tribunal considered the evidence in relation to the nature of the household including any joint responsibility for care and support of children, the parties’ living arrangements and any sharing of housework.

21. In the Application for migration to Australia by a partner, the applicant stated in relation to the nature of the household:

    Laurance works full time. I do not. Share domestic duties, go shopping together hang out together, our regular dinner place is papa rich as it's close to us. I am very strict with his medication.

22. In a statutory declaration dated 28 June 2022 the applicant said in relation to the nature of the household:

    ·in March 2017 she and the sponsor commenced cohabitation when she moved into the property at Barfield Road Hammond Park WA 6164 (Barfield Road). She said in November 2020 they moved into her son’s home at Roach Place Orelia WA 6167 (Roach Place) when the sponsor lost his job. She said they stayed there until they found their current rental property at South Street White Gum Valley WA 6162 (South Street)

    ·when the sponsor was working she looked after the home and cleaned and cooked however since he retired it has been the other way around.

23. In a statutory declaration dated 28 June 2022 the sponsor provided consistent information in relation to the nature of the household.

24. Residential tenancy agreements for the property at Barfield Road were provided. The applicant and the sponsor were indicated to be the tenants and the terms of the tenancies were from 16 February 2020 to 15 August 2020 and from 16 August 2020 to 15 November 2020.

25. Correspondence addressed to the parties individually and jointly in 2017, 2018, 2019 and 2020 at Barfield Road was provided.

26. Correspondence addressed to the parties jointly and to the sponsor individually at Roach Place in 2020 and 2021 was provided.

27. Correspondence addressed to the sponsor individually at South Street in 2020 and 2021 was provided. Correspondence addressed to the applicant at this address was provided however the date of the correspondence was not indicated.

28. The Tribunal considers that the evidence presented relating to the parties’ residential addresses and the nature of the household at the time of application and at the time of decision is an indicator of a genuine and continuing de facto relationship.

    Social aspects of the relationship

29. The Tribunal considered the evidence in relation to the social aspects of the relationship including whether the parties represent themselves to other people as being married to 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.

30. In an undated statement to the Tribunal the applicant said:

    Love Laurence's mom. Both family (including my child Aiden) regularly meet.

31. In a statutory declaration dated 28 June 2022 the applicant said in relation to the social aspects of the relationship that she and the sponsor travelled to Bali with members of the sponsor’s family including his mother. She said they are viewed as a member of each other’s family. In a statutory declaration dated 28 June 2022 the sponsor provided consistent information in relation to the social aspects of the relationship. He also said they have often attended regular family gatherings, as well as ‘Christian’ (eg Christmas and Easter), and ‘Muslim’ (eg Eid) festivals. He said they travelled together to Bali in 2018 and intend to travel to Pakistan, Dubai, Bali and New Zealand.

32. A statutory declaration dated 22 June 2022 made by the applicant’s daughter, Ms Mehaak Nawaz, was provided in support of the genuineness of the parties’ relationship. She said the sponsor is an integral part of their family. She said she has known the sponsor since 2017.

33. A statutory declaration dated 23 June 2022 made by the applicant’s son, Mr Aiden Nawaz, was provided in support of the genuineness of the parties’ relationship. He said his mother bought a restaurant in 2019 and said the parties jointly operate the business. He said they plan to marry in Pakistan. He said he has known the sponsor since 2017.

34. A statutory declaration signed by the sponsor’s mother, Ms Christina Sawyer, was provided in support of the genuineness of the parties’ relationship. The statutory declaration was not dated and was not witnessed by a qualified person. She said they meet for celebrations including birthdays, Christmas and Easter. She said the applicant is accepted by the family as the sponsor’s de facto partner. She said she has known the applicant since 2017. She said the parties have said they plan to marry in Pakistan.

35. The evidence before the Tribunal included Facebook posts dated in 2017 and 2018 which showed the parties at social events with others identified as family members and friends. Photographs dated in 2017, 2018, 2021 and 2022 showing the parties with the sponsor’s mother and other family members were provided. Photographs dated in 2021 showing the parties with the applicant’s son, daughter and grandsons were provided.

36. The applicant’s Australian Super My Account statement indicates that the applicant’s relationship with the sponsor is “spouse”.

37. Based on the written and documentary evidence, the Tribunal is satisfied that the parties represented themselves to other people as being in a de facto relationship with each other at the time of application and continue to do so at the time of decision.

    The nature of the parties’ commitment

38. The Tribunal considered the nature of the persons’ commitment to each other including the duration of the relationship, the length of time they have lived together, the degree of companionship and emotional support they draw from each other, and whether they see the relationship as long-term.

39. In the Application for migration to Australia by a partner, the applicant stated in relation to the nature of the parties’ commitment:

    Not sure what nature of commitment means. However, we aim to live together and be together for good.

40. In an undated statement made by the applicant she said:

    I am writing in regard to the appeal I have made for reviewing the decision of refusal of my Partner visa application. I would like to address a few factors that contributed to a visa application that is not on par with the true nature of my relationship with my partner and sponsor, Lawrence Howells and would like to provide supporting evidence in favour of our application. The visa application was prepared by myself aged 55 years and my partner aged 65. It is to be noted that some errors were made both on my part and my partners behalf due to a genuine misunderstanding of the conditions of the visa. We provided evidence of our relationship 12 months after the date of application and not before the date of application as required by the visa conditions. This was a grave error on our part as we believed the evidence follows the application date or we would have applied the following year. We hereby request the department to consider our relationship evidence as we have been in a veritable and lasting relationship since the past 2 years now and have a firm and strong resolve of changing our current status from de-facto to married in the very near future once my partner is able to finalise his divorce proceedings from his earlier relationship

41. In a statutory declaration dated 28 June 2022 the applicant said in relation to the nature of commitment that she and the sponsor have depended on each other for emotional support over the past five years. She said they plan to marry when both their families are able to attend. She said they also want to buy a home in Australia where they can grow old together.

42. In a statutory declaration dated 28 June 2022 the sponsor said in relation to the nature of commitment:

    I see our relationship, to be a committed one, not only committed to each other, but also committed to a lifetime together.

    We want to get married in the future with our family members all present. We have made a commitment to one another, certainly in my case, as I’m entering old age, to supporting each other physically, emotionally, and practically. Life gets hard without a companion, as we age, we need the support of a caring partner, and in Deeba I know I have that covered.

    Conclusion

43. Having considered carefully all the evidence of the relationship cumulatively and collectively, the Tribunal finds that at the time of application and at the time of decision the parties were and remain in a committed long-term relationship. In making this determination the Tribunal has taken into account that the parties have been in a relationship for five years, that they provide each other with emotional and financial support and that they have future long-term plans together.

44. Regarding whether the requirements of s 5CB(2) were met at the time of application, the Tribunal decided:

    ·the parties were not married;

    ·they did not live separately and apart on a permanent basis;

    • they were not related by family (as defined in s 5CB(4));
    • they had a mutual commitment to a shared life together to the exclusion of others; and
    • the relationship was genuine and continuing.

45. On the basis of the above the Tribunal is satisfied that the requirements of s 5CB(2) are met at the time the visa application was made and the time of this decision. Therefore, the applicant meets cl 820.211(2)(a). There is no evidence indicating that the applicant does not satisfy the sub-criteria in cl 820.211(2)(c) or (d). The Tribunal finds that the applicant met the requirements of cl 820.211(2) at the time of application and that she continues to meet the requirements of cl 820.211(2) at the time of decision. Therefore, the applicant meets cl 820.221.

46. 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.

    Are the additional criteria for a de facto relationship met?

47. Persons claiming to be in a de facto relationship for a partner visa must also meet the additional criteria in reg 2.03A. These are: that the couple are both at least 18 years of age; and with limited exceptions, that the de facto relationship must have existed for at least the period of 12 months ending immediately before the date of the application, unless the applicant can establish compelling and compassionate circumstances for the grant of the visa. The requirement that the relationship existed for 12 months prior to the application does not apply in certain circumstances where the sponsor is or was a humanitarian visa holder, or for applications made on or after 9 November 2009, where the de facto relationship has been registered under a relevant State or Territory law: regs 2.03(4) and (5). These exceptions do not apply in the present case.

48. The Tribunal accepts on the evidence before it that the applicant and the sponsor were over the age of 18 at the time of application. Therefore, reg 2.03A(2) is met.

49. The Tribunal then considered reg 2.03A(3). The application was made on 25 March 2018. The parties claim and the Tribunal accepts they commenced a de facto relationship on 7 March 2017 when they began living together at their Barfield Road home. Accordingly, the Tribunal is satisfied that the de facto relationship existed for at least the 12-month period ending immediately before the date of the application.

50. For completeness, the Tribunal considered whether there are compelling and compassionate circumstances for the grant of the visa: reg 2.03A(3). The expression ‘compelling and compassionate circumstances for the grant of the visa’ is not defined in the legislation. Having regard to the ordinary meaning of the words, ‘compassionate’ suggests ‘circumstances that invoke sympathy or pity’. ‘Compelling’ in its wide, ordinary meaning means ‘forceful’ and, therefore, convincing: see Paduano v MIMIA [2005] FCA 211.

51. The information before the Tribunal included that the parties cannot legally live as a de facto couple in Pakistan because unmarried couples are legally prohibited from cohabiting in Pakistan which is Ms Mazhar’s country of nationality. In addition, the applicant may face criminal charges for wanting to live together as a de facto couple. Further, if the applicant is required to leave Australia and the sponsor elects to remain in Australia with his elderly mother and family, he will be left without the emotional, practical and financial support he relies on. This will have a significant impact on his emotional and physical wellbeing. Accordingly, the Tribunal finds that in the present case there are compelling and compassionate circumstances for the grant of the visa.

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

2. On the basis of the above the Tribunal is satisfied that the requirements of s 5CB(2) are met at the time of application and the time of this decision. There is no evidence indicating that the applicant does not meet cl 820.211(2)(c) or cl 820.211(2)(d). The Tribunal finds that the applicant meets cl 820.211(2) and that she continues to meet the requirements of cl 820.211(2) at the time of decision. Therefore, the applicant meets cl 820.221.

3. 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

4. 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)(a) of Schedule 2 to the Regulations

   ·reg 2.03A.

   Christine Kannis
   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).