Molean (Migration)

[2024] AATA 2095

Molean (Migration) [2024] AATA 2095 (24 April 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Stephanie Molean

REPRESENTATIVE:  Mr John Preston Young (MARN: 9251554)

CASE NUMBER:  1936354

HOME AFFAIRS REFERENCE(S):          BCC2018/3807075

MEMBER:Tegen Downes

DATE:24 April 2024

PLACE OF DECISION:  Brisbane

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 24 April 2024 at 1:24pm

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – genuine and continuing relationship – no recent financial information provided – household and social aspects of relationship and nature of commitment – length of relationship – care of sponsor’s children from previous relationship and couple’s young child – decision made without hearing necessary – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5CB(2), 65, 360(2)(a)
Migration Regulations 1994 (Cth), rr 1.15A(3), 1.20, 2.03A, Schedule 2, cls 820.211(2), 820.221(1)(a)

CASES
Ally v MIAC [2008] FCAFC 49
He v MIBP [2017] FCAFC 206
Jayasinghe v MIMA [2006] FCA 1700
MIEA v Poche (1980) 4 ALD 139

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 section 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 18 June 2018 based on 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).

3. The delegate refused to grant the visa on the basis that the applicant did not satisfy cl 820.211(2) of Schedule 2 to the Regulations and reg 2.03 of the Regulations because the delegate was not satisfied that the applicant was the ‘de facto partner’ of the sponsor, within the meaning of the Act, and had been for 12 months before the time of application.

4. I did not invite the applicant to appear before the Tribunal because I considered that I should decide the application in the applicant’s favour based on the material before me, pursuant to s 360(2)(a) of the Act.

5. The applicant was represented in relation to the review. The representative submitted significant evidence to the Tribunal in 2020, 2022 and 2024.

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

   ISSUE AND LAW

7. This review application relates to an application for a provisional partner visa to enable the applicant to remain in Australia on a temporary basis.

8. The first issue in this review application is whether, at the time the visa application was made, and at the time of this decision, the applicant is the de facto partner of an Australian citizen, for the purposes of cl 820.211(2)(a) and cl 820.221 of the Schedule 2 to the Regulations.

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 about these matters, regard must be had to all the circumstances of the relationship. This includes evidence of the financial and social aspects of the relationship, the nature of the parties’ household and their commitment to each other, as set out in reg 1.15A(3), which is extracted in the attachment to this decision. Each of the specific matters contained in reg 1.15A(3) are effectively questions which must be answered: He v MIBP [2017] FCAFC 206.

11. In forming a view of the relationship at the time of application, the Tribunal must consider all relevant evidence, which may include evidence of events after the date of application insofar as it assists in the task of determining whether the visa applicant and the sponsor were in a partner relationship at the time of the application. Evidence of events after the visa application is relevant if it tends logically to show the existence or non-existence of facts relevant to the issue to be determined: Ally v MIAC [2008] FCAFC 49 at [32]–[35]; Jayasinghe v MIMA [2006] FCA 1700 at [35], citing MIEA v Poche (1980) 4 ALD 139.

12. If the primary issue is resolved in the applicant’s favour, the secondary issues are whether, at the time of the visa application and at the time of this decision, the applicant satisfies the other requirements of cl 820.211 and cl 820.221 of Schedule 2 to the Regulations and reg 2.03A.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Background

13. The applicant is a 33-year-old woman from Papua New Guinea. She claims to be in a de facto relationship with the sponsor, a 56-year-old Australian citizen who was born in Poland. The sponsor is widowed with three children.

14. The sponsor claims to have lived in Papua New Guinea for approximately 15 years, during which time he met the applicant via Facebook and then in person in January 2016. The couple claim to have started dating and to have moved in together (with the sponsor’s children) in or about March 2016.

15. The couple claim to have lived together as a couple in Papua New Guinea until the sponsor returned to Australia in January 2018 and the applicant followed in or about February 2018 on a visitor visa, which remained current at the time of application. They claim to have continued their relationship in Australia and to have welcomed a child together in 2023.

    Are the couple in a de facto relationship?

    Financial aspects of the relationship

16. The couple last submitted evidence in relation to the financial aspects of their relationship in 2022. Accordingly, I am unable to make positive findings as to the financial aspects of the relationship at the time of my decision. I did not invite the applicant to submit further evidence related to the couple’s finances because I considered that I could find in the applicant’s favour based on the other material before me.

17. At the time of application, the couple claim to have one joint asset, being a joint account with Westpac, which was opened in or about March 2018. There is evidence before the Tribunal by way of bank statements from 2018 and 2022 verifying the existence of the joint account. Accordingly, I accept the claim as true and make a finding accordingly.

18. The couple claim to predominately use the sponsor’s personal account with Westpac for their day-to-day exposes. They submitted evidence to the Tribunal of the sponsor’s personal account between 2016 and 2022 and the applicant’s personal account between 2020 and 2022. I have reviewed these bank statements, and the joint bank statements, and note that:

    a.It is not possible to ascertain who made deposits into the joint account.

    b.The applicant’s salary was paid into her personal account.

    c.The applicant’s personal account was used for some household expenses, such as car registration and fuel.

    d.The sponsor’s personal account was used for holidays and other household expenses.

19. I accept that the bank statements support the couple’s claims. Accordingly, I find that, at the time of application, the couple shared day-to-day household expense and pooled their financial resources in a manner consistent with a de facto relationship.

20. At the material times, the couple do not claim to have any joint liabilities or to owe any legal obligations to the other party and I make findings accordingly.

21. I find that, at the time of application, the financial aspects of the relationship were indicative of a de facto relationship, as defined in the Act.

    Nature of the household

22. The couple claim that, at the material times, they have lived together at the sponsor’s house at Trinity Beach. They provided evidence to the Tribunal by way of a joint written statement as to their daily lives, the division of housework and their responsibilities for the children. They also provided documentary evidence to support their claims, including a sample of correspondence addressed to the couple at the shared address, a letter from the children’s school, and statutory declarations from the couple’s neighbours.

23. I accept this evidence and find that, at the material times, the couple have lived together and established a joint household, and they share housework and responsibility for the care and support of their children in a manner consistent with a de facto relationship. At the material times, the nature of the household is indicative of a de facto relationship, as defined in the Act.

    Social aspects of the relationship

24. There is compelling evidence before the Tribunal regarding the social aspects of the relationship: including a letter from the sponsor’s children’s school confirming that the applicant is listed as their emergency contact; travel-related documentation; photographs of the couple with friends and family over the course of their relationship; Form 888 - Statutory declaration by a supporting witness in relation to a Partner or Prospective Marriage visa application from the sponsor’s father and from friends; and statutory declarations from neighbours.

25. I have considered this evidence, along with the couple’s written statements, and find that at the material times, the couple represent themselves to other people as being in a married relationship, that the couple’s family, friends and acquaintances believe the relationship between the couple to be genuine and continuing and that the couple plan and undertake joint social activities. At the material times, the social aspects of the relationship are consistent with a de facto relationship, as defined in the Act.

    Nature of persons’ commitment to each other

26. The couple has been in a relationship and lived together for approximately eight years. There is evidence before the Tribunal that the sponsor has made a will appointing the applicant as guardian for his children and as a beneficiary, that the applicant was the sponsor’s support person for a surgical procedure in 2020, that the couple underwent fertility treatment, and that they welcomed their child in 2023.

27. I have considered the terms of the couple’s statements and all of the documentary evidence before the Tribunal and am satisfied that the couple, at the material times, draws companionship and emotional support from each other commensurate with a de facto relationship and that they see the relationship as long term. I find that, at the material times, the nature of the commitment is indicative of a de facto relationship, as defined in the Act.

    Conclusion

28. Having regard to the findings set out above, I am satisfied that, at the material times, the couple have a mutual commitment to a shared life to the exclusion of all others, that the relationship is genuine and continuing and that the couple live together or do not live separately and apart on a permanent basis for the purposes of s 5CB(2)(a) to (c) of the Act. In the absence of any evidence, I am also satisfied that the couple is not related by family for the purposes of s 5CB(2)(d) of the Act.

29. Accordingly, I am satisfied that the requirements of s 5CB(2) are met and that, at the time the visa application was made and at the time of this decision, the couple is in a ‘de facto relationship’ as defined in the Act. Therefore, the applicant meets cl 820.211(2)(a) as the applicant is the de facto partner of the sponsoring partner.

    Are the other visa criteria met?

30. As the primary issue has been resolved in the applicant’s favour, it is incumbent on the Tribunal to consider whether the applicant met the other requirements of cl 820.211(2) at the time of application, and whether the applicant continues to meet those requirements at the time of this decision, in accordance with cl 820.211(1)(a).

31. For the following reasons, the Tribunal is satisfied that these requirements are met.

32. Clause 820.211(2)(c)(i) requires that, if the applicant’s spouse has turned 18, the applicant is sponsored by the spouse of the de facto partner. Reg 1.20 relevantly provides that the ‘sponsor’ of an applicant is a person who provides an undertaking to assist the applicant, to the extent necessary, financially and in relation to accommodation during the period of 2 years immediately following the grant of the temporary visa.

33. There is evidence before the Tribunal that the sponsor completed the department’s online ‘Sponsorship for a partner to migrate to Australia’, which included the relevant undertaking, on or about 21 June 2018. There is no evidence before the Tribunal that the sponsor has withdrawn their sponsorship. Accordingly, I am satisfied that at the material times, the applicant was and is sponsored by their de facto partner in accordance with cl 820.211(2)(c).

34. Clause 820.211(2)(d) only applies to an applicant who was not the holder of a substantive visa at the time of application.  As the applicant held a substantive visa at the time of application, it does not apply.

    Are the additional criteria for a de facto relationship met?

35. 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.

36. 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).

37. The applicant has provided evidence that the relationship was registered on 24 December 2019 under the Relationships Act 2011 (Qld) as a kind of relationship prescribed in the Acts Interpretation (Registered Relationships) Regulations 2008 (Cth): r.2.03A(5).

38. Although the couple’s relationship was registered after the time of application, the department’s procedural instruction notes that:

    Unlike subregulation 2.03A(3), which explicitly requires the relationship to be in existence for at least 12 months at the time of visa application, subregulation 2.03A(5) does not specify when the relationship must be registered. As such, an applicant who registers their de facto relationship after the application is made but before it is decided is taken to have met subregulation 2.03A(5).

39. Accordingly, the 12 month requirement does not apply and I am satisfied that the applicant meets the additional criteria prescribed in reg 2.03A.

40. 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

41. 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 820.211(1)(a) of Schedule 2 to the Regulations

    ·reg 2.03A

    Tegen Downes
    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).