Pham (Migration)

[2022] AATA 5231

Pham (Migration) [2022] AATA 5231 (20 December 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Thi Thu Linh Pham

VISA APPLICANT:  Mr Daniel McDonagh

REPRESENTATIVE:  Mr Michael Cai (MARN: 1799864)

CASE NUMBER:  1909663

DIBP REFERENCE(S):  BCC2018/3139162

MEMBER:Brygyda Maiden

DATE:20 December 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Partner (Provisional) (Class UF) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 309 (Partner (Provisional)) visa:

·cl 309.211(2) of Schedule 2 to the Regulations

·cl 309.221 of Schedule 2 to the Regulations

·r  2.03A

Statement made on 20 December 2022 at 11:21pm

CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – genuine de facto relationship – financial aspects – nature of the household – social aspects – nature of the commitment – additional criteria – 12-month requirement – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5CB, 65
Migration Regulations 1994 (Cth), rr 1.09A, 2.03A; Schedule 2, cls 309.211, 309.221

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 on 15 February 2019 to refuse to grant the visa applicant a Partner (Provisional) (Class UF) visa under s 65 of the Migration Act 1958 (the “Act”).

2. The visa applicant, a citizen of Ireland, applied for the visa on 20 August 2018 on the basis of his relationship with his sponsor, the review applicant. At that time, Class UF contained only one subclass: Subclass 309 (Partner (Provisional)). The criteria for the grant of this visa are set out in Part 309 of Schedule 2 to the Migration Regulations 1994 (the “Regulations”).

3. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl 309.211(2) in that the application was according to the delegate, undocumented, and therefore there was insufficient evidence to support the claim of the parties being in a spouse or de facto partner relationship.

4. Due to the lack of documents pertaining to this review, on 14 November 2022, the Tribunal wrote to the review applicant requesting further information in support of the applicant which resulted in documentation being submitted to the Tribunal by the review applicant.

5. The review applicant appeared before the Tribunal on 6 December 2022 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant.  

6. The review applicant was represented in relation to the review.  A Vietnamese interpreter was also present at the hearing but the review applicant did not require his assistance.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether the visa applicant is the spouse or de facto partner of the review applicant.  

   Whether the parties are in a spouse or de facto relationship

9. Clauses 309.211(2) and 309.221 require that at the time the visa application was made, and at the time of this decision the visa 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 visa applicant claims to be the de facto partner of the review applicant who is an Australian resident. The parties are not married.

   Are the parties in a de facto relationship?

10. ‘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).

11. The review applicant submitted a Victorian relationships certificate indicating that the parties registered their domestic relationship of 4 August 2016.  According to the Application for migration to Australia by a partner which was generated on 20 August 2018 on the Department file, the parties are not related by family.

12. In forming an opinion as to whether the parties are in a de facto relationship, consideration must be given to all the circumstances of the relationship. This includes evidence of the financial and social aspects and the nature of the visa applicant’s and review applicant’s 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.

    Are the other requirements for a spouse relationship met?

    Financial aspects of the relationship

13. Tribunal has considered the financial aspects of the relationship, including any joint ownership of real estate or other major assets; joint liabilities; extent of any pooling of financial resources; whether one person in the relationship owes any legal obligations in respect of the other and the basis of any sharing of day-to-day household expenses.

14. At the time of application and the time of decision there is no evidence before the Tribunal that the parties have any joint ownership of assets or any joint liabilities.

15. The review applicant gave evidence that she works full-time doing home lending.  The visa applicant’s oral evidence was that the last time he had a full-time job was in approximately 2013 but it could have been 2012.  After that, he worked in the mines in Western Australia, had an accident whilst working in heavy machinery, and on moving to Melbourne was receiving workers compensation for a long period of time as well as being the recipient of a lump sum payout.  Then, the work he did was favours for friends, helping where he could and on returning to Ireland has at times received a carer’s allowance for the care that he provided to his late father and then later, his mother. The review applicant gave evidence that throughout the parties’ relationship the visa applicant had helped friends with labour jobs for which he sometimes was paid in cash and it was not a salaried job.  The review applicant admitted that the visa applicant was not perfect “on paper” but he made her happy.

16. The review applicant gave oral evidence at the hearing that the parties maintain a joint Westpac Choice joint account which they opened in approximately 2016 (the “Joint Account”).  A selection of statements from the Joint Account were submitted to the Tribunal by the review applicant from statement number 26 commencing on 11 June 2018 until statement 77 ending on 11 October 2022.  Despite the parties differing employment situations and the resulting income from that, the parties have for considerable period by way of the Joint Account evidenced an intention to pool their financial resources. Even though the visa applicant has been overseas since 2017, it is clear in from the Joint Account statements that he is able to access and continues to use the Joint Account (e.g. Joint Account statement 76 on 26 August 2022 indicating that a transaction on the Joint Account occurred in Dublin). As the Joint Account had at the time of application been operational for approximately 2 years and at the time of decision for approximately 6 years, the Tribunal gives this weight.

17. In respect of whether one person in the relationship owes any legal obligations in respect of the other, the review applicant gave evidence that she did not have a will and the visa applicant gave evidence that he also did not have a will.

18. The review applicant submitted her TelstraSuper details indicating that the visa applicant is her 100 percent binding beneficiary until 28 January 2025.  A letter from TelstraSuper dated 4 August 2016 attaching the review applicant’s super statement dated 1 July 2016 indicates that at that stage, her one hundred percent beneficiary was also the visa applicant.  This position was also indicated on the review applicant’s super statements as at 31 December 2016, 31 March 2017, 30 September 2017, and 30 June 2022.  The Tribunal is satisfied that at the time of application and time of decision the review applicant owed a legal obligation in respect of the visa applicant. The Tribunal gives this some weight as the visa applicant is the binding beneficiary until 28 January 2025.  However, there is no evidence that the visa applicant has any legal obligations in respect of the review applicant.

19. In terms of the basis of any sharing of day-to-day household expenses, the review applicant submitted documents indicating that prior to the date of application that the parties were joint account holders for their electricity bills from 12 April 2016 until 7 July 2017.  The review applicant gave oral evidence that the parties have a Joint Account and the review applicant earns a salary whilst the visa applicant contributes when he can.  The Joint Account was used when the parties were living together to pay for good quality food and rent. The review applicant’s statutory declaration dated 21 November 2022 is generally consistent with her oral evidence but also states that bills come out of the Joint Account.  The Tribunal accepts that there was some evidence of household expenses being shared whilst the parties were living together until the visa applicant had to return to Ireland to care for his father in May 2017 (i.e. prior to the date of application) and the Tribunal gives this some weight.

20. The review applicant gave evidence that she considers herself responsible for the visa applicant’s living expenses.  Chat records submitted by the review applicant indicate that the review applicant ensures that there are funds in the Joint Account if the visa applicant requires them.  The Tribunal accepts that at the time of decision, the review applicant has been funding expenses of the visa applicant due to the visa applicant’s working situation despite the parties currently residing in different countries.  The Tribunal considers that it would be unlikely for the review applicant to continue to provide such funding if the parties were not in a genuine and continuing relation and did not have a mutual commitment to a shared life together.  That being said, as the parties currently reside in different countries there is no opportunity to share day-to-day household expenses.  Because of this, at the time of decision, the Tribunal gives this neutral weight.

21. In terms of the financial aspects of the relationship at the time of application the parties had no joint ownership of real estate or other major assets and had no joint liabilities together.  They had a Joint Account opened approximately two years prior to the time of application.  The visa applicant has been the beneficiary of the review applicant’s superannuation account since July 2016. There is no evidence that the visa applicant has any legal obligations in respect of the review applicant.  There is some evidence of the sharing of day-to-day household expenses.  On balance, the financial aspects of the parties’ relationship provide some indication of the parties being in a genuine and continuing relationship.

22. At the time of decision, the parties still have no joint ownership of real estate or other major assets and no joint liabilities.  The Joint Account has been operational for approximately six years.  The visa applicant remains the beneficiary of the review applicant’s superannuation account and is the binding beneficiary until 28 January 2025.  There is no evidence that the visa applicant has any legal obligations in respect of the review applicant.  As the parties currently live in different countries they cannot share day-to-day household expenses. On balance, despite the parties having lived in separate countries for a number of years, the financial aspects of the parties’ relationship provide some indication of the parties being in a genuine and continuing relationship.

    Nature of the household

23. The Tribunal has considered evidence of the nature of the parties’ household, including any joint responsibility for the care and support of children, the living arrangements of the persons and any sharing of the responsibility of housework.

24. There is no evidence that the parties have any children together or have ever had any joint responsibility for the care or support of children.

25. According to the application for migration to Australia by a partner which was generated on 20 August 2018 on the Department file, the parties’ de facto relationship began on 22 February 2015.  The review applicant gave oral evidence that in terms of living arrangements she had been living in a property in Elwood since 2013 and had been looking for a new housemate. The visa applicant responded to an advertisement on Gumtree, contacted the review applicant and ultimately commenced living at the Elwood property together with the review applicant.  Once the parties’ relationship became more serious, the parties moved to a bigger property together in Bentleigh until the visa applicant returned to Ireland in May 2017 to visit his sick father.

26. At the time of decision the review applicant gave oral evidence that she remains in the Bentleigh property which she has shared with a number of flatmates since visa applicant returned to Ireland.  The visa applicant gave oral evidence that he is currently residing with his brother in the centre of Ireland, approximately one hour’s drive from Dublin.

27. In terms of the sharing of the responsibility of housework, prior to the time of application, the review applicant gave evidence that in the Elwood property the parties took cleaning in turns. In the Bentleigh property the review applicant cooked the main meal (the visa applicant cooked breakfast as the review applicant doesn’t eat breakfast often), decorated the house including with flowers, and when she wanted to grow vegetables the visa applicant assisted her with that. The visa applicant mowed the lawns (there was no grass in the Elwood property) and is a better cleaner in the review applicant’s opinion that the review applicant is.  The review applicant’s oral evidence is mostly consistent with her statutory declaration which states that the visa applicant “…did most of the hard physical work like take [sic] out the bins, paint or repair furniture, lawn mowing, gardening.  I [the review applicant] would normally do cleaning, decorating house with flowers.  We in turn do cooking or dishes and laundry.”  The Tribunal gives this some weight.

28. For the most part, because at the time of decision the parties live in separate countries with separate households there is limited opportunity to share housework.

29. In terms of the nature of the household, at the time of application the parties have no children together and no joint responsibility for any children.  The parties lived together until the visa applicant had to return to Ireland to be with his sick father and there is evidence of the sharing of the responsibility of housework.  The Tribunal gives this some weight at the time of application of the parties living together and not separately and apart on a permanent basis, the parties being in a genuine and continuing relationship and the parties having a mutual commitment to a shared life.  At the time of decision, the parties still have no children together and no joint responsibility for any children.  The parties have been living in separate countries for a number of years now, though there is consistent oral evidence between the two of them of their desire to reside together in Australia in the Bentleigh property.  As the parties are separated by distance the Tribunal gives neutral weight to this consideration.

    Social aspects of the relationship

30. The Tribunal has considered evidence of the social aspects of the relationship, including whether the persons represent themselves to other people as being in a de facto relationship with each other, the opinion of the persons’ friends and acquaintances about the nature of the relationship, and any basis on which the persons plan and undertake joint social activities.

31. In terms of the parties representing themselves to others as being in a de facto relationship with each other, tax returns submitted by the review applicant indicate the visa applicant as her spouse in the 2015-16, 2016-17, 2017-18, 2018-19 and 2020-21 tax return summaries.  What appears to be an online printout of the review applicant’s personal details on her TelstraSuper account also indicates that the visa applicant is her spouse.  No documentation was submitted as regards the visa applicant indicating that the review applicant is his spouse.  The Tribunal does not give this adverse weight as the absence of documentation appears to be consistent with the visa applicant’s employment situation.

32. In terms of the opinion of the parties’ friends and acquaintances about the nature of the relationship, the review applicant submitted a form 888 statutory declaration of Victor Holder dated 2 September 2016.  Mr Holder met the visa applicant in 2011 at an art and music event, following which Mr Holder asked the visa applicant to be a volunteer at a number of art and community projects.  The visa applicant also attended Mr Holder’s weekly meditation classes.  Mr Holder states that he heard of the parties moving in together in August 2014, first as housemates, and then later while they were dating.  At the time of the declaration, Mr Holder had known the review applicant for two years, and the review applicant has visited Mr Holder’s art gallery and attended different art events and activities as the visa applicant’s partner.  She also shares mutual interest in art and is very supportive of the visa applicant.  Mr Holder has witnessed the parties’ relationship evolve from housemates into dating, and then a couple that lives and shares a life together.  He feels their “intense attraction towards each other and admire [sic] the love, care and support that they hold for each other. They have the same values and outlook for life”.  He is aware that the parties moved from Elwood to Bentleigh in March 2016 to have more space and accommodate their lifestyle with more engagement with friends through home parties and dinners.  The Tribunal gives Mr Holder’s declaration weight in support of the parties being a genuine and continuing relationship and having a mutual commitment to a shared life together.

33. After the hearing, the review applicant also submitted statements from:

    a.Brendan O’Connor dated 9 December 2022.  Mr O’Connor met the visa applicant in September 2015 at a social gathering, and he became one of Mr O’Connor’s closest friends.  In June 2016, he met the review applicant (the visa applicant’s “partner”) at the parties’ home at Bentleigh for dinner.   There were a number of occasions where Mr O’Connor attended the parties house and talk into the early hours.  Mr O’Conner also lists a number of other social functions that the parties attended including (not an exhaustive list) the Light in Winter Festival at Federation Square in Melbourne that the parties attended and then went to eat at Swanston Street afterwards.  He believes “their pure love for each other has passed the test of time and distance”.

    b.Thi Thuy Duong Pham dated 12 August 2022 who is the younger sister of the review applicant.   Ms Pham states that the review applicant shared that in late 2015 to early 2016 that her relationship had developed with the visa applicant who started as her housemate and they were moving into a bigger place together.  In late 2017 to mid-2018 the parties including Ms Pham had multiple group calls in relation to setting up the parties’ drop shipping business through Amazon.  Ms Pham’s husband helped the parties with the design and packaging of their products. In 2019, Ms Pham occasionally heard of the review applicant’s plans to travel to Indonesia or to a friend’s wedding in New Zealand the year after and they would meet each other.  Ms Pham understood that the parties were working on a plan to reunite in Australia.  Ms Pham states the parties kept in contact through the pandemic lockdown and supported each other. Recently, the review applicant asked Ms Pham to assist with the preparation of paperwork to bring their mother to Australia for a visit, and the review applicant shared that she had met her partner the visa applicant in Europe in October and was looking forward to him being able to travel back to Australia.   Although Ms Pham has not me the visa applicant, her statement generally supports and is generally consistent with evidence given by the parties, except where she states that the review applicant had recently shared that she met the visa applicant in October in Europe, as the statement is dated August, and the trip in October had not at that stage occurred.  Because of this inconsistency, the Tribunal is concerned about the accuracy of the evidence and only provides the statement a small amount of weight.

    c.Shane McDonagh dated 7 December 2022.  Mr McDonagh became aware of the parties’ relationship in 2014 as his brother, the visa applicant had spoken greatly of the review applicant and his plans to stay in Australia with her.  In 2016, the visa applicant mentioned that he had moved into a bigger place and the parties were happy there.  In 2017, the visa applicant came back to Ireland as their father had become ill to help look after him. The visa applicant’s father passed away in 2018, and the visa applicant then lived with Mr McDonagh until September 2019.  The visa applicant then travelled to Bali in September 2019 to meet the review applicant and travelled from there to New Zealand to meet the review applicant to together attend a friend’s wedding in January 2020.  The review applicant returned to Ireland in March 2022 as he was in New Zealand during the pandemic.  Mr McDonagh is aware the parties holidayed together in October 2022 in Spain and Italy.  He states that the parties are very loving and supportive of each other, and that the visa applicant is looking forward to being reunited with the review applicant.  The Tribunal gives this weight.

1. Based on the review applicant’s tax returns, TelstraSuper and the statutory declaration  and statement evidence of the parties’ friends and family there is evidence at the time of application and the time of decision that the parties represent themselves to other people as being in a de facto relationship with each other and opinions from the parties’ friends and family about the nature of their relationship is indicative of the parties being in a genuine and continuing relationship, and the Tribunal gives this some weight.

2. In terms of the basis on which the parties plan and undertake joint social activities, according to the review applicant’s statutory declaration dated 21 November 2022, when the parties were living together prior to the time of application, the parties went out to festivals, nightclubs, parties together, dinner with friends, camping or inviting their friends over for dinner.  The visa applicant gave generally consistent oral evidence that when the parties are together, they go out for coffee, dinner, parties, festivals and when they were living together, they had guests over for dinner.  This is also consistent with Brendan O’Connor’s statement.  The parties also enjoy spending time together driving to different places like the mountains or Great Ocean Road, being in each other’s company and having deep conversations.  The Tribunal gives this some weight.

3. At the time of decision, the chat records indicate that the review applicant organises the bulk of the parties travel so that the parties can see each other. The parties have travelled regularly to be with each other (which is discussed in further detail below). The Tribunal gives this some weight.

4. In terms of the social aspects of the parties’ relationship, at the time of application there is some evidence that the parties represent themselves to other people as being in a de facto relationship with each other and the opinion of the parties’ friends and family as to the nature of the parties’ relationship is indicative of the parties being in a genuine and continuing relationship.  There is also evidence of the parties undertaking joint social activities together.  The social aspects of the parties’ relationship are indicative of the parties being in a genuine and continuing relationship.

5. At the time of decision, there is some evidence that the parties represent themselves to other people as being in a de facto relationship with each other and the opinion of the parties’ friends and family as to the nature of the parties’ relationship is indicative of the parties being in a genuine and continuing relationship.  The parties have flown to meet and to attend the wedding of their friends and continue to travel in order to spend time with one another.  The Tribunal gives this some weight as being indicative that the parties are in a genuine and continuing relationship.

   Nature of persons’ commitment to each other

6. The Tribunal has considered evidence of the nature of the persons’ commitment to each other, including the duration of the relationship, the length of time the parties have lived together, the degree of companionship and emotional support that the persons draw from each other and whether the persons see the relationship as a long-term one.

7. In respect of the duration of the parties’ relationship, according to the Application for migration to Australia by a partner which was generated on 20 August 2018 the parties’ de-facto relationship commenced in February 2015.  The parties registered their domestic relationship on 4 August 2016.  At the time of application the parties had been in a relationship for approximately three and a half years.  The Tribunal gives this weight. 

8. At the time of decision the parties have been in a relationship for well over seven years, and have their domestic relationship registered in Victoria for over six years.  Given the significant duration of the parties’ relationship, the Tribunal gives this weight.

9. In terms of the length of time that the parties have lived together, according to the review applicant’s statutory declaration dated 21 November 2022, the parties have lived together from August 2014 until May 2017 (over two and half years) and have lived in separate countries from May 2017 onwards.  The review applicant states that the parties lived together from:

   a.August 2014 to March 2016 in a share house in Elwood as the visa applicant moved into a property that the review applicant had already been living in for a year.  Initially he moved in August 2014 as a flatmate, and then the parties started romantically dating in December 2014 and their relationship became serious in February 2015; and

   b.March 2016 to May 2017 at Bentleigh until the visa applicant returned to Ireland to look after his ill father. To this end, the applicant submitted a bond receipt dated 31 March 2016 in the names of both parties, and a residential tenancy agreement for the Bentleigh property in both parties’ names commencing on 16 March 2016 for a period of 12 months.  The review applicant also gave oral evidence that she had woken one evening to hear the visa applicant crying and knew that he had to return to Ireland to see his sick father.  The review applicant was aware that the visa applicant’s father had contacted him and asked when he would return to Ireland and knew that if he returned to Ireland that it would mean that the parties’ relationship would have to become long distance despite the fact that she did not like the idea of the parties living apart.  The Tribunal gives this weight in respect of a mutual commitment to a shared life and a genuine and continuing relationship. 

10. The review applicant continues to live at the Bentleigh address whereas the visa applicant has during this time lived in a number of locations overseas (including New Zealand where he remained locked down during the COVID pandemic) but currently resides in Ireland with his brother.

11. At the time of application, the parties had been living together for over two and a half years, though were only in a relationship for over two of those years.  At the time of decision, as the parties are currently living in separate countries, they have not been living together since 2017, that is, for over five years, but have a desire to live together in Australia. 

12. The review applicant’s statutory declaration dated 21 November 2022 indicates that the parties have travelled together in:

    a.2017 to Vietnam and Bali (tickets for both parties were submitted from Melbourne to Ho Chi Minh City on Monday 15 May 2017, and on to Bali on 24 May 2017 via Singapore).  It is not clear when the parties left Bali;

    b.September 2019 to Bali (Jetstar tax invoices were submitted by the review applicant although it was not clear who was travelling to and where they were travelling, WhatsApp chat records on 13 September 2019 also indicate that the visa applicant was at that stage in Bali and the review applicant was travelling there in less than a week);

    c.January 2020 to a friend’s wedding; (there is an e-ticket indicating that the review applicant flew from Bali to Sydney on 22 January 2020 and then from Sydney to Queenstown on 23 January 2020);

    d.13 – 29 October 2022 to Spain and Italy.  The review applicant submitted e-tickets indicating that she travelled from Melbourne to Madrid to arrive in Madrid on 13 October 2022, and that the visa applicant travelled from Dublin to Madrid to arrive on the same day. The review applicant also submitted bus tickets for both parties to travel from Barcelona to Venice departing on 20 October 2022.

    The above travel plans are consistent with Mr Shane McDonagh’s statement.  The Tribunal gives the parties travel plans some weight.

13. The review applicant gave oral evidence that the duration of each trip ranged from one to two and a half weeks as she works full time, her job is very demanding and when she is away, she must work very hard to catch up.  She takes annual leave to see the visa applicant, but she needs to retain her job and income.  As it appears from the evidence that it the visa applicant who is the primary income earner and provides financial support to the visa applicant, the Tribunal gives this weight.

14. In relation to the degree of companionship and emotional support that the persons draw from each other, the review applicant submitted WhatsApp chat records in English from 2018 until 2022, a sample of chat logs from 2017 and 2018 and a sample of call records from 2017 to 2022. The chat records indicate that the parties communicate regularly, discuss travel plans they are making, children, transactions on the Joint Account and what their dreams are amongst other things.  The Tribunal gives this weight.

15. The review applicant’s statutory declaration dated 21 November 2022 indicates that the visa applicant has encouraged her when she commenced her dream to start an online business selling on Amazon so that she could travel to be with the visa applicant.  The business failed and the review applicant lost a lot of the parties’ savings. The review applicant stated that the visa applicant had supported her throughout this and had not been resentful when the venture failed. 

16. In terms of emotional support, prior to the time of application, the review applicant gave oral evidence that the visa applicant had supported her on the death of her grandmother.  The review applicant could not recall whether her grandmother’s passing was at the end of 2016 or start of 2017.  Prior to her grandmother’s death, she could hear grandmother’s voice in her head and a few hours later received a message from her sister that her grandmother had passed away.  The review applicant woke the visa applicant, and informed him of what had occurred, and he had hugged and kissed her.  She felt at home with the visa applicant and that there was someone there for her.  In recent times, the review applicant says the parties had grown together.  The parties recently travelled to Europe together (which is consistent with travel records and photographs submitted), the visa applicant had made a joke which had upset the review applicant.  He had stated that he could not understand why the review applicant had become so upset as he had regularly joked with his sister in the same way.  The review applicant appreciated the visa applicant talking through her concerns even though it was draining for the two of them, and in her view, only someone who loves and cares for her would be able to see beyond her anger and a lot of men try and stay away from the “female emotion” and do not want to deal with it.  However, according to the review applicant the visa applicant will face these matters and deal with them together with her.  In the Tribunal the review applicant has given specific and detailed examples of emotional support which the visa applicant has provided to her and gives this weight.

17. The visa applicant testified that the review applicant had listened to him in his darkest time when his father had passed away.  She was there for him and even when he became a bit “shut down”, she allowed him space and when it was time to come back together, he felt that he was being heard and that helped him through the situation.  Despite the review applicant missing him, she was able to put her feelings aside to comfort him.  The visa applicant stated that the parties are always very open and vulnerable with each other and that is one of the core aspects of their relationship. The review applicant gave consistent evidence that she tries to be there for him and sometimes the visa applicant needs to be by himself, so she tries to give him space. The Tribunal accepts the visa applicant’s evidence and gives it weight.

18. In more recent times the visa applicant was “locked down” in New Zealand because of the COVID-19 pandemic.  The parties were so close distance wise and could not be together.  The visa applicant felt isolated, had no one close in his support circle and that affected him greatly. The visa applicant stated that the review applicant supported him “tremendously”, listened to him and that they parties have a connection that is very much “transformational” and “very healing”. The review applicant gave generally consistent evidence of the difficulties the visa applicant had experienced whilst being locked down in New Zealand. The Tribunal gives this weight.

19. In respect of whether the parties see their relationship as a long term one, according to the review applicant’s statutory declaration dated 21 November 2022 the parties “…both dream of the day we can be together in the same place, to build our life together again, be able to save money to buy a house and plan for a family in the near future.” The review applicant gave oral evidence that Australia is home for both of them. She remains in the house where both parties had lived and the visa applicant’s things are still there.  She needs him to “sort out” the garage, and the veggie patch, and she hopes that the visa applicant will return to Australia in time to be able to meet her mother who is due to visit from Vietnam in February 2023.  The visa applicant stated that the parties need to work, save, and repay debts so they can have a future together. They had discussed travelling around Australia and having children in the next two years. The visa applicant gave generally consistent evidence, except that he added that he wanted to initially spend some quality time with the review applicant under one roof and connect with the dog that the review applicant had recently purchased.    The Tribunal gives this weight.

20. The review applicant gave oral evidence that she had considered what would happen if the visa applicant could not come to Australia, and that as long as the parties had each other it would be “good”.  She stated that she had attempted to start an online business so that she could work remotely, but it had failed and the visa applicant had supported her in this process.  During the parties’ recent travels together in Europe the review applicant mentioned that she did not feel a connection there nor that she belonged. In terms of moving to Ireland, she would need a stable job and she did not want to be an added burden to the visa applicant’s family.  However, the review applicant’s evidence was that despite being born in Vietnam when she moved to Australia, she “fell on her feet” and if she could do it once, she could do it again.  She would uproot herself if need be and the parties would find a way to be together.  The  visa applicant’s evidence was that the parties had already been apart for a long time, and he knew that their relationship would survive.  The Tribunal gives this weight. 

21. As regards the nature of the person’s commitment to each other, at the time of application the parties had been in a relationship for approximately three and a half years, and had their domestic relationship registered for a bit over two years.  Although the parties were not living together at the time of application due to the visa applicant having to return to Ireland due to his father’s health, the parties had been living together for over two years. There is evidence of regular contact whilst the parties have been away and evidence which provides specific detail of the emotional support afforded by both parties to each other. There is little evidence at that stage as to the parties’ future plans, however given that the parties’ relationship has been continuing since 2015 it is indicative that the relationship is long term.  The Tribunal gives the nature of the person’s commitment to each other some weight in terms of indicating an intention not to live separately and apart on a permanent basis and having a mutual commitment to a shared life together and being in a genuine and continuing relationship.

22. At the time of application, the parties have been in a relationship for well over seven years and have had their domestic relationship registered for over six.  Although the parties have not been living together since 2017, there is evidence of regular travel to see each other accepting that that this has been funded by the review applicant and she has a limited amount of annual leave.  The parties have expressed an intention to reside together on a permanent basis.  There is strong evidence of companionship and emotional support given by the parties, and evidence that the parties see the relationship as long term. The Tribunal gives this weight in terms of indicating that the parties are in a genuine and continuing relationship, have a mutual commitment to a shared life and wish to live together and not separately and apart on a permanent basis.

    Any other circumstances of the relationship

23. As a whole, the Tribunal found the parties to give candid and generally consistent evidence.  They were both forthcoming in their evidence, sharing deeply personal accounts of their lives together (many of which were not documented in this decision) and their emotional connection with each other.  They appeared to have intimate knowledge of each other’s lives despite living in separate countries.  

24. For the reasons provided in relation to the reg 1.09A(3) matters, the Tribunal is satisfied that the requirements of s 5CB(2) of the Act are met at the time the visa application was made and at the time of this decision and the review applicant and visa applicant are de facto partners. In particular, the Tribunal is satisfied that the parties have a mutual commitment to a shared life to the exclusion of all others (as required by s5CB(2)(a)), the relationship between them is genuine and continuing (as required by s 5CB(2)(b)), they have for some periods lived together and do not live separately and apart on a permanent basis (as required by s 5CB(2)(c)), and as already discussed are not related by family (as required by s 5CB(2)(d)).

25. Therefore, the visa applicant meets cl.309.211 and cl.309.221.

    Are the additional criteria for a de facto relationship met?

26. 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 both over 18 years of age.

27. 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).  The parties had been in a de-facto relationship since 22 February 2015 and had their relationship registered in Victoria on 4 day of August 2016, therefore the parties met the 12-month requirement, and the Tribunal is satisfied that the parties were in a de facto relationship for at least the 12-month period ending immediately before the date of application.

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

29. 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 309 visa.

    DECISION

30. The Tribunal remits the application for a Partner (Provisional) (Class UF) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 309 (Partner (Provisional)) visa:

    ·cl 309.211(1) of Schedule 2 to the Regulations

    ·cl 309.221 of Schedule 2 to the Regulations

    ·r 2.03A

    Brygyda Maiden
    Member

    
    

    Attachment  -  Extract from Migration Regulations 1994

    1.09ADe 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).