McConnell (Migration)

[2017] AATA 2835

McConnell (Migration) [2017] AATA 2835 (20 December 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Katie Alexandra McConnell

CASE NUMBER:  1621237

DIBP REFERENCE(S):  BCC2015/816748

MEMBER:Helena Claringbold

DATE:20 December 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 of Schedule 2 to the Regulations;

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

·r.2.03A of the Regulations.

STATEMENT MADE ON 20 DECEMBER 2017 AT 7:22AM

CATCHWORDS
Migration – Partner (Temporary) (Class UK) visa – Subclass 820 (Spouse) – Combine financial matters – Share a household – Attend family and social events – Support each other to achieve goals

LEGISLATION
Migration Act 1958, s 5CB
Migration Regulations 1994, rr 1.09A, 2.03A, Schedule 2, cls 820.211, 820.221

statement of decision and reasons

APPLICATION FOR REVIEW

1. On the 13 March 2015, Miss Katie Alexandra McConnell, the applicant, applied for a Partner (Temporary) (Class UK) visa.  The application was made on the basis of her de facto relationship with Mr James Anthony Coy, the sponsor.

2. On 1 December 2016, a delegate of the Minister for Immigration and Border Protection refused to grant the visa. The refusal was based on the applicant not satisfying cl.820.211(2)(a) and cl. 820.211 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The delegate was not satisfied that the visa applicant and the sponsor were de facto partners. This is a review of the delegate’s decision.

3. On 19 December 2017, the applicant appeared before the Tribunal to give evidence and present arguments. The Tribunal also received oral evidence from Mr Coy and Ms Geraldine Coy, the sponsor’s mother.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The Tribunal has taken into consideration all the evidence in the Departmental case file BCC2015/816748, folios numbered 1-97 and the Tribunal case files 1621237, folios numbered 1-234 and the evidence at the Tribunal hearing.

   ISSUE

6. The issue in the present case is whether the applicant is the de facto partner of the sponsor as defined in s.5CB of the Migration Act 1958 (the Act).

   BACKGROUND ON THE EVIDENCE        

7. In 1987, the applicant was born in the USA.  Her parents and three siblings live in the USA.

8. In 1986, the sponsor was born in South Africa.  In 1999, he entered Australia.  He is an Australian citizen by grant and an Irish citizen by descent.  His parents and two siblings live in Australia.

9. On 22 March 2013, the parties met in New York, USA. In November/December 2013, the parties lived together. In June 2014, the applicant returned to Australia and the parties began living together as de facto partners.  

   Is the applicant the spouse of an eligible citizen?

10. The Tribunal is satisfied that the sponsor, at the time of visa application and decision, was an Australian citizen who had turned 18. 

    Are the parties in a de facto relationship?

11. ‘De facto partner’ is defined in s.5CB of the Act and 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 r.1.09A(3) of the Regulations which is attached to this decision.

13. On these aspects, the Tribunal has considered all the evidence before it and is satisfied the facts of this case are as follows.

    CLAIMS AND FINDINGS

14. The Tribunal is satisfied about the following matters: the parties’ income is derived from their salaries. They do not have any joint assets.  They have discussed and agreed upon on a repayment plan for the applicant’s loans. The parties have individual bank accounts have joint bank accounts which are used for saving and general day-to-day expenses. They pool some of their finances and work together to cover their financial commitments and support each other financially and are beneficiaries on their superannuation funds.  The parties do not have any legal obligation in respect of the other.

15. The parties live together in Australia in accommodation jointly leased. They share their household expenses and domestic duties however the applicant does most of the cooking. The Tribunal is satisfied that the parties formed their household.

16. They parties have travelled to different locations including the USA, Africa, Thailand, Cairns, Melbourne and Tasmania extensively. The parties’ present as being in a de facto relationship and their relationship is recognised and accepted by their family and friends.  They attend family celebrations and socialise with friends.  Third party statements attest to the genuine nature of the parties’ relationship and to them living happily together. They confirm the development of the parties’ relationship and how they provide companionship and support to each other.  Ms Coy told the Tribunal of meeting the visa applicant in 2013 and of the parties’ de facto relationship beginning in June 2014.  She stated that since that time the parties have lived together and supported each other. Photographic evidence depicts the parties together and with others at various locations and social functions. The Tribunal is satisfied that the parties present and are recognised as de facto partners.

17. The applicant travelled to Australia in November 2013 and the parties lived together for approximately six weeks. In June 2014, the applicant came to Australia to live with the sponsor in a de facto relationship. The parties have lived in a de facto relationship since that time.  In October 2017, the parties became engaged. They plan to marry in 2019 and eventually buy property and have children together. They provide support and companionship for each other and are committed to supporting each other emotionally, psychologically and physically. The Tribunal is satisfied that the parties have a mutual commitment to a shared life together to the exclusion of all others.

18. In view of the above, the Tribunal is satisfied by the evidence that the parties combine some financial matters; that they share a household; that they attend family and social events and present themselves and are recognised by others as de facto partners.  The parties have lived together for more than three years. Over that time they have been companions they care for each other and provide each other with emotional support. They support each other to achieve their goals, specifically the sponsor’s desire to become a pilot and the applicant’s desire to succeed in the arts.  The Tribunal is satisfied that the parties’ de facto relationship is genuine and continuing.

    Are the additional r.2.03A criteria for a de facto relationship met?

19. Persons claiming to be in a de facto relationship for a partner visa must also meet the additional criteria in r.2.03A of the Regulations. These are: that the couple are both at least 18 years of age; and with limited exceptions, that the applicant has been in the de facto relationship for at least the period of 12 months ending immediately before the date of the application, unless he or she 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: r.2.03(4), (5).

20. The Tribunal is satisfied that at the time of application the parties were at least 18. In addition, on 23 February 2017, the parties registered their de facto relationship. Therefore, the applicant meets the additional criteria of r.2.03A.

21. For these reasons the Tribunal is satisfied that the applicant meets the additional criteria prescribed in r.2.03A.

22. Having considered the evidence individually and as a whole, the Tribunal is satisfied that at the time of application and at the time of decision the sponsor and the applicant had and have a mutual commitment to a shared life as de facto partners to the exclusion of all others; that their relationship is genuine and continuing and that they do not live separately and apart on a permanent basis. The applicant therefore meets the requirements of s.5CB of the Act.

23. Given these findings the Tribunal is satisfied that at the time the visa application was made and at the time of this decision the parties were and are were in a de facto relationship.

24. Therefore the applicant meets cl.820.211 and cl.820.221.

    DECISION

25. 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.

26. 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 of Schedule 2 to the Regulations; and

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

    ·r.2.03A of the Regulations.

    Helena Claringbold
    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).