Rahman (Migration)

[2021] AATA 5059

Rahman (Migration) [2021] AATA 5059 (20 December 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Sm Ataur Rahman

CASE NUMBER:  1811320

HOME AFFAIRS REFERENCE(S):          BCC2016/2047349

MEMBER:Kira Raif

DATE:20 December 2021

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Partner (Temporary) (Class UK) visa, with the direction that the applicant meets the following criteria for a Subclass 820 (Partner) visa:

·cl 820.211(2)(a) of Schedule 2 to the Regulations

·cl 820.221(1)(a) of Schedule 2 to the Regulations

·reg 2.03A

Statement made on 20 December 2021 at 10:39am

CATCHWORDS

MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – genuine and continuing relationship – de facto relationship – child of the relationship – pooling of financial resources – joint social activities – registered marriage – decision under review remitted    

LEGISLATION

Acts Interpretation (Registered Relationships) Regulations 2008 (NSW)
Migration Act 1958, ss 5, 65
Migration Regulations 1994, Schedule 2, cls 820.211, 820.221; rr 1.09, 2.03

CASES

Waensila v MIMA [2006] FCAFC 32 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 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 14 June 2016 on the basis of his relationship with his sponsor. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl 820.211 and cl. 820.221 because the delegate was not satisfied the applicant was the de facto partner of the sponsor. The applicant seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal on 20 December 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor. Other witnesses  attended the hearing but the Tribunal determined it was not necessary to take oral evidence from them. The applicant was represented in relation to the review by his registered migration agent. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   Relevant law

4. 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 (Cth) (the Regulations).

5. 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 who is an Australian citizen.

6. '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).

7. 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.

   Are the parties in a de facto relationship?

8. At the time of the application, the applicant and sponsor were not married and claimed to be in a de facto relationship. (The applicant provided to the Tribunal a copy of the marriage certificate indicating he and the sponsor married in September 2021). The Tribunal is satisfied that at the time of this decision, the applicant and the sponsor are validly married. However, at the time when the application was made, they were not married and the Tribunal must assess the time of application criteria against the de facto provisions.

9. The applicant provided minimal evidence of his relationship with the primary application. There is considerably more evidence before the Tribunal and the Tribunal has also had the benefit of the applicant’s and sponsor’s oral evidence. The Tribunal has formed the view that they are truthful witnesses and found their evidence to be detailed and consistent.

10. There is evidence before the Tribunal that the applicant and sponsor have been living together. They gave consistent evidence about their daily arrangements, including sharing responsibilities for domestic chores. The Tribunal accepts that they live together and share the housework. The sponsor is presently pregnant due to give birth in March 2021 and the Tribunal accepts that both the applicant and sponsor will take on the joint responsibility for the care and support of their child, once born.

11. The applicant’s evidence to the Tribunal, which is accepted, is that the couple have a joint  account which has not been used. They operate separate accounts but both have access to each other’s accounts. The parties have indicated good knowledge about each other’s financial affairs. The Tribunal accepts that the applicant and sponsor pool their resources and share daily household expenses. The limited joint ownership of assets or joint liabilities are due to their limited finances.

12. There is evidence of the couple’s joint social activities in the form of social photographs and statements from third parties. Their evidence to the Tribunal is that they spend limited time socialising at present due to the sponsor’s pregnancy and Covid. The Tribunal accepts that they planned and undertook joint social activities in the past but do so less now. The Tribunal accepts that their relationship is known to, and recognised by others, including family members.

13. The Tribunal acknowledges that the relationship has been in existence for several years, first as a de facto one and now as a marital relationship. The Tribunal accepts that the applicant and sponsor rely on each other for emotional support and comfort and both are looking forward to raising their child together. The Tribunal accepts that they view the relationship as a long term one and in the Tribunal’s view, the sponsor’s pregnancy is an indication of their commitment to a long-term relationship and to each other.

14. Having regard to the totality of evidence before it, the Tribunal is satisfied that the applicant and sponsor have a mutual commitment to shared life to the exclusion of others. The Tribunal is satisfied their relationship is genuine and continuing and that they live together. They are not related by family. On the basis of the above the Tribunal [is satisfied that the requirements of s 5CB(2) are met at [the time the visa application was made. At the time of the decision, the Tribunal is satisfied the applicant and the sponsor maintain a spousal relationship, having now registered their marriage. Therefore the applicant meets cl 820.211(2)(a) and cl 820.221(1)(a).

    Are the additional criteria for a de facto relationship met?

15. 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.

16. The applicant must have been in the de facto relationship for at least the 12 month period ending immediately before the date of the application: reg 2.03A(3). This requirement will not apply in limited circumstances, such as: where the de facto relationship has been registered under a relevant State or Territory law (for applications made on or after 9 November 2009); where the applicant can establish compelling and compassionate circumstances for the grant of the visa; or in certain circumstances where the sponsor held, holds or is applying for a permanent humanitarian visa.

17. The applicant has provided with the application evidence that the relationship was registered under the law of NSW as a kind of relationship prescribed in the Acts Interpretation (Registered Relationships) Regulations 2008: reg 2.03A(5). Accordingly, the 12 month requirement does not apply. For these reasons the Tribunal is satisfied that the applicant meets the additional criteria prescribed in reg 2.03A.

    Conclusion

18. 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

19. The Tribunal remits the application for a Partner (Temporary) (Class UK) visa, with the direction that the applicant meets the following criteria for a Subclass 820 (Partner) visa:

    ·cl 820.211(2)(a) of Schedule 2 to the Regulations

    ·cl 820.221(1)(a) of Schedule 2 to the Regulations

    ·reg 2.03A

    Kira Raif

    Senior Member