PARK (Migration)

[2019] AATA 3877

PARK (Migration) [2019] AATA 3877 (8 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Hyeonjeong PARK
Mr Chanhee HONG

CASE NUMBER:  1728858

HOME AFFAIRS REFERENCE(S):           BCC2015/1274913

MEMBER:Kira Raif

DATE:8 July 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the applications for Partner (Temporary) (Class UK) visas, with the direction that the first named 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 of Schedule 2 to the Regulations

·r.2.03A

Statement made on 08 July 2019 at 2:03pm

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Spouse) – applicant is de facto spouse of sponsor – joint bank account – pooled resources – parties represented themselves to others as being in relationship – established joint household – shared domestic responsibilities – companionship and support – mutual commitment to long term relationship – relationship not known to parties’ children – sponsor had limited knowledge about some aspects of applicant’s current situation – decision under review remitted

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

CASES
He v MIBP [2017] FCAFC 206

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 Immigration and Border Protection to refuse to grant the applicants Partner (Temporary) (Class UK) visas under s.65 of the Migration Act 1958 (the Act).

2. The visa applicants are nationals of South Korea. The first named applicant (the applicant) was born in August 1975. She applied for the visa on 2 May 2015 on the basis of her relationship with her sponsor. The application includes the applicant’s minor child. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.820.211 because the delegate was not satisfied the applicant was the de facto spouse of the sponsor.

3. The applicants sought review of the delegate’s decision. In April 2017 the Tribunal (differently constituted) affirmed the decision under review. The applicants sought judicial review and the matter was remitted to the Tribunal for reconsideration.

4. The applicant appeared before the Tribunal on 8 July 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor. The Tribunal hearing was conducted with the assistance of the interpreters in the Korean and Mandarin languages. The applicants were represented in relation to the review by their registered migration agent. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   Relevant law

5. At the time the application was made, 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 (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.

6. 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 be the de facto partner of the sponsor.

7. '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).

8. 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) which is attached to this decision. Each of the specific matters contained in r.1.09A(3) are effectively questions which must be answered: He v MIBP [2017] FCAFC 206.

   Are the parties in a de facto relationship?

9. The Tribunal has considered all the circumstances of this relationship.

10. There are before the Tribunal the partners’ financial records. These shows that the applicant and sponsor operated a joint bank account from at least April 2014 and the account shows regular deposits and withdrawals. The applicant’s oral evidence is that they both worked and both contributed to various bills. Tribunal is satisfied that they pooled their resources when they lived together. Since the sponsor has been incarcerated, the applicant told the Tribunal that she deposits money into his account for use while in detention and the Tribunal accepts that they continue to share their resources. There is no evidence of joint liabilities or joint ownership of real estate or major assets.

11. The Tribunal has considered the social aspects of the relationship. The Tribunal accepts the parties’ evidence that the applicant has regular and frequent contact with the sponsor’s sister and mother and that she is the main point of contact for the sponsor’s family who may not be able to communicate with the sponsor directly. There are a number of statements from third parties before the Tribunal confirming that prior to the sponsor’s incarceration, he and the applicant had planned and undertaken joint social activities and represented themselves to others as being in a relationship.

12. The parties claim to have started cohabitation around July 2013 and they both gave consistent evidence about their living arrangements prior to the sponsor’s incarceration. The Tribunal accepts that they established a joint household from mid-2013 and shared domestic responsibilities. The Tribunal also accepts that a shared household has not been possible since the sponsor’s incarceration.

13. The Tribunal has considerable concerns about the way the applicant and the sponsor represent their relationship to their children. Both told the Tribunal that they have not told their children about the relationship because they are too young. The Tribunal is mindful that the secondary applicant is 16 years of age while the sponsor’s children are both over 18. The Tribunal does not accept that they are too young to be told about the existence of the relationship.

14. The applicant told the Tribunal that her son ‘may recognise’ their relationship because they used the same bedroom and not because she told him. The applicant said that she mentioned the relationship her son but ‘not 100%’. The Tribunal is not satisfied that she had that conversation with her son. The applicant said that she wants her son to be older and more mature. The Tribunal does not consider that explanation plausible. The Tribunal is mindful that the parties claim to have been in a relationship since mid-2013 for a period of some six years. They claim to have lived together for much of that period. It is not possible in the Tribunal’s view, for anyone observing these arrangements not to recognise the existence of the relationship.

15. The Tribunal finds that the parties do not share any responsibilities for the care and control of children and have deliberately arranged for such care and control to be separated and not involving the other partner. The Tribunal finds that aspect of the relationship to be most problematic.

16. The Tribunal has accepted the parties’ claim that they met around June 2013 and established a relationship shortly thereafter. To date, that relationship has been in existence for approximately six years. Both partners spoke about the support they draw from each other, particularly following the sponsor’s imprisonment. The Tribunal accepts the parties’ evidence that the applicant visits him frequently and is significantly involved in his legal affairs. The Tribunal accepts that the parties draw companionship and support from each other. The Tribunal is prepared to accept that they have a mutual commitment to this relationship and view it as a long term one.

17. There is nothing to suggest that the applicant and the sponsor are related by family.

18. The Tribunal has found some aspects of the relationship problematic. As noted above, the Tribunal is concerned about the way in which this relationship has not been made known to, nor is recognised by, the parties’ children. The Tribunal is also concerned by some of the sponsor’s oral evidence when he appears to have limited knowledge about some aspects of the applicant’s present circumstances – such as details of her flatmates or the amount of rent that she pays. Nevertheless, having regard to the duration of the relationship, the apparent commitment of the parties and the companionship they draw from each other, the Tribunal finds, on balance, that the applicant and the sponsor have a mutual commitment to a shared life to the exclusion of all others. The Tribunal finds that their relationship is genuine and continuing. The Tribunal finds that the parties live together or do not live separately and apart on a permanent basis. They are not related by family.  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.

    Are the additional 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. Both members of the couple must be at least 18 years old: r.2.03A(2). In this case, at the time of application, the applicant and the sponsor were at least 18 years old.

20. 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: r.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.

21. There is no evidence that the relationship is registered under a relevant State or Territory law or that the sponsor held, holds or is applying for a permanent humanitarian visa, so they must meet the 12 month requirement.

22. There was limited evidence before the delegate concerning the commencement of the relationship, however, more evidence has been presented to the Tribunal. In particular, there is evidence of the applicant and sponsor operating a joint bank account from April 2014, as well as statements from third parties recognising the relationship from early 2014. The Tribunal places weight on the fact that the applicant was named as the guarantor and the couple’s address is noted on the sponsor’s bail papers completed in December 2013, indicating that by that time they represented themselves as living together and being in a relationship. The parties also gave consistent evidence about their living arrangements from that period and the Tribunal accepts that they had established a joint household and shared their finances from early 2014 and represented themselves to others as being in a relationship. On balance, the Tribunal is satisfied that the applicant had been in the de facto relationship for at least the 12 month period ending immediately before the date of the application.

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

    Conclusion

24. 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

25. The Tribunal remits the applications for Partner (Temporary) (Class UK) visas, with the direction that the first named 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 of Schedule 2 to the Regulations

    ·r.2.03A

    Kira Raif
    Senior Member