Pace (Migration)

[2023] AATA 3620

Pace (Migration) [2023] AATA 3620 (28 September 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Laura Elise Pace

REPRESENTATIVE:  Mr Navid Koushke Beghi

CASE NUMBER:  2003169

HOME AFFAIRS REFERENCE(S):          BCC2018/691677

MEMBER:Stephen Conwell

DATE:28 September 2023

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.

Statement made on 28 September 2023 at 10:19am

CATCHWORDS

MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Spouse) – relationship ceased – genuine and continuing relationship before family violence – integrated financial affairs – social recognition of the relationship – unequal expectations of the relationship – decision under review affirmed        

LEGISLATION

Migration Act 1958, ss 5, 65
Migration Regulations 1994, Schedule 2, cls 820.211, 820.221; r 1.09

CASES

He v MIBP [2017] FCAFC 206

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

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 10 February 2018 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.

3. The delegate refused to grant the visa on the basis that the applicant did not satisfy cl 820.211(2)(a) because there was insufficient evidence of the claimed de facto relationship between the applicant and her sponsor.

4. The applicant provided a copy of the delegate’s decision to the Tribunal for the purposes of the review.

5. The applicant was represented in relation to the review by her registered migration agent (representative).

6. The applicant appeared before the Tribunal on 5 September 2023 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Elizabeth Anne McArthur, a friend of the applicant. The representative also attended the Tribunal hearing.

7. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether the applicant and her sponsor were in a genuine de facto relationship and, if so, whether the applicant would continue to meet the requirements of subclause 820.211(2)(a) except that the relationship has ceased and the applicant suffered family violence committed by the sponsor.

9. The applicant claims that her de facto relationship with the sponsor commenced in April 2017. On 17 May 2019, the sponsor informed the Department that he wished to withdraw his  sponsorship as the relationship had ceased.

10. On 28 June 2019, the Department sent a letter to the applicant advising that it had received information that her relationship with the sponsor had ended and seeking her comments. On 22 July 2019, the Department received an email from the applicant confirming that the relationship had ended however she would be providing evidence that she had suffered family violence committed by her sponsor during the relationship.

11. The decision record sets out the evidence that was before the delegate, comprising:

    ·      A relationship certificate registered in Victoria on 5 September 2017;

    ·      A statutory declaration by Betty Jean Widt dated 6 February 2018;

    ·      A statutory declaration by Gabrielle Emmett dated 9 February 2018;

    ·      A Virgin Australia e-ticket receipt in the sponsor’s name issued on 6 August 2017;

    ·      A Virgin Australia e-ticket receipt in the applicant’s name issued on 6 August 2017;

    ·      A travel reservation in the name of both parties issued by Virgin Australia for travel from 5 September 2017 to 19 September 2017;

    ·      A travel reservation in the name of both parties issued by Virgin Australia for travel from 27 September 2018 to 1 October 2018;

    ·      A travel reservation in the name of both parties issued by Virgin Australia for travel from 20 December 2018 to 27 December 2018;

    ·      An e-Ticket in the applicant’s name issued by Air New Zealand for travel from 25 March 2019 to 1 May 2019 travelling to the USA;

    ·      An e-ticket in in the sponsor’s name issued by Air New Zealand for travel from 25 March 2019 to 1 May 2019 travelling to the USA;

    ·      A Transfer Receipt Change of Tenants issued by the Department of Justice & Regulation on 11 December 2017 addressed to the sponsor and three other people at [Address 1], VIC;

    ·      A NAB bank statement dated 15 August 2017 to 18 August 2017 addressed to both parties sponsor at the [Address 1] address;

    ·      A NAB bank statement dated 19 August 2017 to 13 February 2018 addressed to both parties at the [Address 1] address;

    ·      A NAB bank statement dated 21 August 2018 to 20 February 2019 addressed to both parties at the [Address 1] address;

    ·      Screenshots of text messages;

    ·      Various social media extracts; and

    ·      Various photographs.

12. Further material submitted to the Tribunal, both prior and subsequent to the hearing, included:

    ·      The representative’s post-hearing submission dated 11 September 2023;

    ·      A statutory declaration by the applicant dated 27 August 2023;

    ·      A statutory declaration by Ms Elizabeth McArthur dated 27 August 2023;

    ·      A notarised statement by the applicant’s mother dated 26 August 2023

    ·      A statutory declaration (Form 888) by Alix Pearce dated 14 December 2022;

    ·      A statutory declaration (Form 888) by Pablo Rivera dated 27 August 2023;

    ·      Evidence of communication ‘call logs’ and Facebook messages;

    ·      ‘screenshot’ evidence of shared expenses;

    ·      General Practitioner (GP) mental health plan;

    ·      GP referral letter dated 18 February 2022;

    ·      GP letter dated 2 August 2023;

    ·      GP report dated 12 September 2023;

    ·      Psychologist report dated 29 August 2023.

    Whether the parties were in a spouse or de facto relationship

13. Clause 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 have been the de facto partner of the sponsor who is an Australian citizen.

    Were the parties in a de facto relationship?

14. 'De facto partner' is defined in 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).

15. 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 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.

    Financial aspects

16. In assessing the financial aspects of the relationship, the Tribunal has considered any joint ownership of asset; joint liabilities, the extent of pooling of financial resources, any legal obligations the parties may have owed to each other; and any sharing of day-to-day household expenses.

17. The Tribunal accepts that the parties held a joint National Australia Bank (NAB) bank account. According to the applicant’s evidence, “the aim was to pool our savings for the future, including travels both to America and internationally.” The Tribunal accepts that the applicant was the main contributor to the joint bank account as the sponsor was unemployed and/or studying for periods of time during their relationship. It also accepts that the parties contributed equally to the rent of the rental property they shared with other tenants.  There is no evidence that the parties had any joint assets or liabilities or that they had assumed any legal obligations inter se.

18. The Tribunal accepts that the applicant and the sponsor sought to integrate their financial affairs to some degree by way of their joint bank account. Whilst it is evident that the applicant provided financial support to the sponsor, his circumstances did not allow for that  financial support to be mutual. Nevertheless the Tribunal gives some positive weight to this factor in support of the application.

    Nature of the household

19. In assessing the nature of the household, the Tribunal has considered such matters as any joint responsibility for the care and support of children, the parties’ living arrangements, and any sharing of housework.

20. The evidence shows that the applicant and sponsor had resided in a shared house with other tenants and occupied a room together. This house was leased by the sponsor and other tenants since the applicant’s name was not included in the lease due to her residency status in Australia. The parties contributed equally to the rent and utility bills of the household.  There are no children from the relationship.

21. Whilst the Tribunal accepts that the parties resided in a shared house with other tenants and occupied a room together, it cannot be satisfied that the applicant and the sponsor established a joint household as de facto partners. Accordingly the Tribunal gives neutral weight to this factor.

    Social aspects

22. In assessing the social aspects of the relationship, the Tribunal has considered whether the parties represented themselves to other people as being in a de facto relationship with each other, the opinion of friends and acquaintances about the nature of the relationship, and any basis on which the parties planned and undertook joint social activities.

23. The Tribunal accepts that the parties engaged in social activities together and the relationship was known to, and supported by, their respective family and friends. As noted in the applicant’s statutory declaration,

    Our families and friends were aware of our relationship and gave us their support. We both regularly communicated with our parents, with weekly or more frequent Face Tune or Skype calls.

24. In September 2017 the parties travelled to Queensland together to meet the sponsor’s parents face-to-face for the first time. In late 2017 the sponsor’s sister and later his parents visited Melbourne to spend time with the parties. The Tribunal gives positive weight to the several statutory declarations and statements of family and friends in support of the relationship

25. On the evidence available to it, the Tribunal is satisfied that the applicant and the sponsor presented themselves to, or were recognised by, their social circle and family as being in a relationship. It gives positive weight in respect to this factor of the relationship.

    Nature of the commitment

26. In assessing the nature of the parties’ commitment to each other, the Tribunal has considered the duration of the claimed relationship, the length of time they lived together, the degree of companionship and emotional support they drew from each other, and whether they saw the relationship as long-term.

27. The applicant’s statutory declaration and her testimony at hearing offers a narrative on the trajectory of the relationship. The Tribunal also has regard to the representative’s written submission and oral submission at hearing, the testimony of the applicant and witness, as well as the several statutory declarations and statements of family and friends and all other evidence. It notes that almost all of the evidence speaks mainly to the applicant’s genuine engagement in the relationship.

28. The Tribunal has formed the view that whilst the applicant may have considered the relationship to be genuine and committed, the evidence does not suggest that this was reciprocated by the sponsor. As noted in paragraph 27 of the applicant’s statutory declaration, “At least from my perspective, we had envisioned a life together.”  Whilst the Tribunal does not intend to place undue weight on a single statement, it does seem emblematic of the entire evidence that her expectations of the relationship and her investment in it, were not reciprocated by the sponsor.

29. The Tribunal found the applicant to be a truthful and pleasant young lady. Both she and the witness gave credible evidence from their respective perspectives. The Tribunal has sympathy for the applicant and acknowledges her emotional and mental health challenges that have been exacerbated by the ending of the relationship. However it must make an impartial decision, weighing up the evidence against the criteria of the relevant visa subclass.

30. In assessing all of the evidence, the Tribunal is satisfied that the parties were in a personal and intimate relationship, however it is not persuaded that, at the relevant times, the parties had a relationship that meets the definition of ‘de facto’ within the meaning of the migration laws, i.e. that they had mutual commitment to shared life to the exclusion of others, that there was a genuine and continuing relationship, or that they lived together on what was intended to a permanent basis.

31. On the basis of the above the Tribunal is not satisfied that the requirements of s 5CB(2) are met at the time the visa application was made or at the time of this decision.

32. The applicant’s claims to have been the victim of family violence, (which fall for consideration under cl 820.221(3)(b)(i), first require the Tribunal to be satisfied that the requirements of cl 820.211(2) have been met. As the Tribunal cannot be satisfied that the applicant was in a de facto relationship with the sponsor, consideration of cl 820.221(3)(b)(i) does not arise.

33. Consequently the Tribunal finds that the applicant does not meet cl 820.211(2)(a) or cl 820.221.

34. For the reasons above, the applicant does not satisfy the criteria for the grant of the visa.

    DECISION

35. The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.

    Stephen Conwell
    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).