Meng (Migration)

Meng (Migration) [2024] AATA 3891 (14 September 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ms Ying Meng
CASE NUMBER:  2110110
HOME AFFAIRS REFERENCE(S):          BCC2020/1355861
MEMBER:Christine Kannis
DATE:14 September 2024
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)(a) of Schedule 2 to the Regulations
·cl 820. 221(1)(a) of Schedule 2 to the Regulations
·reg 2.03A

Statement made on 14 September 2024 at 8:10am
CATCHWORDS
MIGRATION –Partner (Temporary) (Class UK) visa – Subclass 820 – parties pool their financial resources and share of day-to-day household expenses – nature of the household is an indicator of a genuine and continuing de facto relationship – parties consistently represent themselves to other people being in a de facto relationship – relationship between the review applicant and the sponsor was a genuine and continuing relationship – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5F, 65
Migration Regulations 1994, rr 2.03, 1.09, Schedule 2, cls 820.211,820.221
CASES
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 (Cth) (the Act).
The applicant applied for the visa on 12 April 2020 on the basis of her relationship with her 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 (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.
The delegate refused to grant the visa on the basis that the applicant did not satisfy cl 820.211(2)(a) because the delegate was not satisfied that she was the de facto partner or spouse of the sponsor as defined under the Act.
A copy of the Decision Record was submitted to the Tribunal by the applicant for the purposes of the review.
No hearing was held in this case because the Tribunal determined it was able to make a favourable decision on the materials before it.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issues to be considered are whether the applicant was the de facto partner of the sponsor within the meaning of s 5CB of the Act at the time of application and, whether at the time of decision, she continues to be the de facto partner of the sponsor and if so, whether she meets reg 2.03A.
Whether the parties are in a spouse or de facto relationship
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.
'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 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
The applicant is a Chinese national. The sponsor is an Australian citizen.
In her Application for migration to Australia by a partner the applicant stated that she first met the sponsor on 6 October 2017. She stated that they committed to a shared life together to the exclusion of all others on 7 February 2018.
The applicant was previously married and was divorced on 28 May 2021.
The sponsor was previously married and was divorced on 8 January 2022.
The Tribunal considered the evidence against the reg 1.09A(3) matters.
Prior to the scheduled hearing the applicant provided additional documentation which included but was not limited to bank statements, statutory declarations and Individual Tax Returns. The Tribunal had significantly more evidence before it than was available to the delegate.
Financial aspects of the relationship
The Tribunal has taken into account the evidence provided as to the financial aspects of the relationship 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.
In her Statement on Relationship Development History dated 21 February 2021, the applicant stated:
· The sponsor financially supported her as much as possible and paid for her English studies. She promised the sponsor she will learn English and find a job to share the financial responsibilities of living together.
· The sponsor often transferred funds into her account for regular expenses like groceries, personal bills and entertainment. Documents described as funds transfer slips were provided. Screenshots evidencing transfers of funds from the sponsor to the applicant in June 2018 and during the period from April 2019 to August 2020 were provided.
In a statutory declaration dated 5 September 2024, the sponsor said he and the applicant deposit their respective earnings into their Westpac joint account. He stated that the statutory declaration had been prepared by him in English and approved by the applicant.
Westpac statements for an account in the parties’ joint names for periods in 2021, 2022 and 2023 were provided. The credit transactions were ATM deposits. The debit transactions included payments for rent, mobile phone charges and payments at Coles.
Evidence that the applicant is a secondary card holder to the sponsor’s Westpac MasterCard valid from February 2020 to June 2024 was provided.
There is no evidence that the parties jointly ownership of significant assets, have joint liabilities or that any legal obligations are owed to the other party and the Tribunal so finds.
The Tribunal finds that the parties pool their financial resources and share of day-to-day household expenses, noting that the sponsor is the primary earner in the relationship and the applicant is also undertaking study. The Tribunal finds that the evidence in relation to the financial aspects of the relationship is an indicator of a genuine and continuing de facto relationship at the time of application and at the time of decision. In making this determination.
Nature of the household
The Tribunal has taken into account the evidence as 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.
In her Statement on Relationship Development History dated 21 February 2021, the applicant stated:
·    In exchange for the sponsor’s financial support she is responsible for household chores such as cooking, cleaning and washing clothes.
·    The sponsor does help her with household chores and they often go shopping together.
·    They began living together in February 2018 and rented Day Street, Sydney NSW 2000 (Day Street) until they moved to their current rented home at Tumbalong Boulevard Haymarket NSW 2000 from January 2020 (Tumbalong Boulevard)
·    Although they jointly applied to rent both properties, the sponsor is the only tenant on the residential lease agreements because she does not have an Australian permanent visa.
In a statutory declaration dated 5 September 2024, the sponsor said he and the applicant lived in rented units at for Day Street from February 2018 to December 2019 and at Tumbalong Boulevard from January 2020 to April 2023, He said they purchased their current home at Harbour Street, Haymarket, Sydney (Harbour Street) where they have lived since May 2023. The sponsor said the applicant does most of the cooking and light shopping and he is responsible for the DIY around their home and some chores. The sponsor stated that the statutory declaration had been prepared by him in English and approved by the applicant.
A Standard Form Residential Tenancy Agreement Rental dated 7 February 2018 for Day Street for term from 7 February 2018 to 5 February 2019 was provided. The agreement is in the sponsor’s name.
An Online Rental & Tenancy Application form dated 6 January 2020 for Tumbalong Boulevard indicating that the applicant and the sponsor were the proposed occupants of the property was provided.
A Standard Form Residential Tenancy Agreement Rental Tumbalong Boulevard from 11 January 2020 to 8 January 2021 was provided. The agreement is in the sponsor’s name.
Correspondence addressed to the sponsor at Day Street dated in 2018 and 2019 was provided.
Correspondence addressed to the parties individually at Tumbalong Boulevard dated in 2020, 2021, 2022 and 2023 was provided.
Correspondence addressed to the applicant and the sponsor individually at Harbour Street, dated in 2023 and 2024 was provided.
Correspondence addressed to the applicant and the sponsor jointly at Harbour Street dated in 2024 was provided.
The Tribunal finds that the parties have resided together at the same addresses since February 2018. The Tribunal finds that the evidence in relation to the nature of the household is an indicator of a genuine and continuing de facto relationship at the time of application and at the time of decision.
Social aspects of the relationship
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 in a de facto relationship or a spousal 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.
In her Statement on Relationship Development History dated 21 February 2021 the applicant stated:
·    At the beginning of her relationship with the sponsor, her mother was not in favour of the relationship. Her mother has now accepted the sponsor and she is living with them and the three of them sometimes go to dinner together at her mother’s favourite Chinese restaurant.
·    She and the sponsor have been to almost all the tourist attractions in Sydney and have travelled to nearby cities including the Central Coast, Wollongong, the Blue Mountains and Canberra.
·    In May 2018, she and the sponsor travelled to her home town of Ezhou in China. They departed Australia on different dates because the sponsor went to his home town in North China first and later joined her in Ezhou where he met some of her relatives.
In a statutory declaration dated 5 September 2024, the sponsor said he and the applicant enjoy social activities with their shared group of friends from their workplaces, the applicant’s colleges and social activities. He said this includes frequent dinner dates and attending Christmas/birthday parties together. He said going out with the applicant is a lot of fun. The sponsor stated that the statutory declaration had been prepared by him in English and approved by the applicant.
A statutory declaration dated 22 February 2021 made by the parties’ friend, Ms Sze Szse Lai, was provided. Her reasons for her belief that the parties’ relationship is continuing and genuine included that she noticed the sponsor treats the applicant with care and attention and gives her respect; that the applicant cooks for the sponsor and buys him clothes and call him to make sure he is ok when they are not together; and that the applicant said she is very serious about her relationship with the sponsor and will be with him in the future. The Tribunal gives this evidence some weight.
A statutory declaration dated 23 February 2021 made by Ms Xiaomei Shang was provided. Her reasons for her belief that the parties’ relationship is continuing and genuine included that they take care of each other in social settings. Ms Shang made a subsequent statutory declaration dated 2 September 2024 in which she attested to the ongoing genuineness of the parties’ relationship. The Tribunal gives this evidence some weight.
A statutory declaration dated 19 May 2021 made by Dik-Wo Derek Tsui was provided. His reasons for his belief that the parties’ relationship is continuing and genuine included that the relationship is exclusive, that the sponsor has been happy since being in a relationship with the applicant and that he has never seen them arguing. Given the general nature of these reasons for his belief, the Tribunal gives this evidence limited weight.
A statutory declaration dated 2 September 2024 made by Ms Lee Hua Cheong was provided in which she gave persuasive reasons for her belief that the parties’ relationship is genuine and continuing. The Tribunal gives this evidence some weight.
A statutory declaration dated 5 September 2024 made by the applicant’s mother, Ms Xiping Wang was provided in which she attested to the genuineness of the parties’ relationship. The Tribunal gives this evidence some weight.
Photographs of the parties only dated in 2022 were provided. Photographs of the parties with other people in 2021 and 2023, one of which was described as a Christmas party 2023.
Photographs of the parties only dated in 2024 were provided. One photograph dated in 2024 showing the parties with other people in a social setting was provided.
The parties’ Individual Tax Returns for 2020, 2021, 2022 and 2023 were provided which showed they indicated each other as their spouse for the relevant financial year. The Tribunal gives this evidence some weight.
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 persons’ commitment to each other
The Tribunal has considered the evidence provided in relation to the nature of the persons’ commitment to one another 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.
In her Statement on Relationship Development History dated 21 February 2021, the applicant stated:
·    She and the sponsor have a mutual commitment to a shared life as partners to the exclusion of all others and their relationship is genuine and continuing.
·    When her visa is granted they plan to buy a small unit in Sydney. Her mother has agreed to pay some of the deposit.
·    She and the sponsor will consider whether to have a child in the future.
·    She and the sponsor had been living together for three years and their relationship is getting stronger and stronger.
·    The sponsor provided emotional support when she found her study difficult and when she could not travel to see family members in China due to COVID-19. The sponsor has always shown her great love and she loves him very much.
In a statutory declaration dated 5 September 2024, the sponsor said because of the applicant the quality of his life is much better. He said if they are able to have a child in the future, their family will be more perfect and happier. He said his love and affection towards the applicant continues to grow and he cannot contemplate life without her. He said the applicant feels the same way toward him and they are 100% committed to their relationship for the rest of their lives. The sponsor stated that the statutory declaration had been prepared by him in English and approved by the applicant.
Conclusion
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.
Regarding whether the requirements of s 5CB(2) were met at the time of application and the time of decision, 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.
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) and cl 820.221(1)(a).
Are the additional criteria for a de facto relationship met?
Persons claiming to be in a de facto relationship for a partner visa must also meet the additional criteria in reg 2.03A. Both members of the couple must be at least 18 years old: reg 2.03A(2). In this case, at the time of application, the applicant and the sponsor were at least 18 years old.
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: reg 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.
A Relationship Certificate dated 8 May 2022 issued under the New South Wales Births Deaths and Marriages Act 1995 was provided. Accordingly , the Tribunal is satisfied that the applicant meets the additional criteria prescribed in reg 2.03A.
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(a)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).

[2024] AATA 3891

14 September 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice