Rane (Migration)

[2023] AATA 2128

Rane (Migration) [2023] AATA 2128 (6 June 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Prachi Haridas Rane

VISA APPLICANT:  Mr  Samiullah

REPRESENTATIVE:  Mr Rodney Calhaem (MARN: 9581377)

CASE NUMBER:  1924031

DIBP REFERENCE(S):  BCC2017/2877463

MEMBER:Christine Kannis

DATE:6 June 2023

PLACE OF DECISION:  Perth

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 06 June 2023 at 1:54pm

CATCHWORDS
MIGRATION –Partner (Provisional) (Class UF) visa - subclass 309 – evidence of a joint liability – parties have pooled their financial resources and shared day-to-day financial responsibilities during the relationship – parties have lived at the same residential addresses since the time of application – relationship is registered under the Relationships Act 2008 (VIC) as shown on the Relationship Certificate – Tribunal is satisfied their relationship is a genuine and continuing relationship – decision under review remitted

LEGISLATION
Migration Act 1958, ss 5CB, 65
Migration Regulations 1994, rr 1.09, 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 8 August 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 applied for the visa on 11 August 2017 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). 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 visa applicant did not meet cl 309.211(2) because the delegate was not satisfied that he was the de facto partner or spouse of the review applicant as defined under the Act.

4. A copy of the Decision Record was submitted to the Tribunal by the review applicant for the purposes of the review.

5. No hearing was held in this case because the Tribunal determined it was able to make a favourable decision on the materials before it.

6. The review applicant was represented in relation to the review.

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 relationship between the visa applicant and the review applicant meets the definition of ‘de facto partner’ in s 5CB of the Act.

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 citizen.

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). 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 of the relationship, the nature of the household and the persons’ 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.

11. The evidence before the Tribunal included a Residential Tenancy Agreement, bank statements, various correspondence,  photographs and a medical report. The Tribunal had significantly more evidence before it than was available to the delegate.

    Background

12. The review applicant is an Australian citizen. The visa applicant is a Pakistani national. 

13. The parties claim to have first met in person on 16 June 2016 in Melbourne. They commenced cohabitation as de facto partners on 20 July 2016. On 7 July 2017, the parties applied for a Relationship Certificate which was issued by the Registry of Births, Deaths and Marriages in Melbourne on 9 August 2017.

14. The Tribunal considered the evidence against the reg 1.09A(3) factors.

    Whether the parties are in a spousal or de facto relationship

    Financial aspects

15. The Tribunal considered the evidence in relation to the financial aspects including joint ownership of assets, joint liabilities, any legal obligations owed to the other party, the extent of pooling of financial resources and any sharing of day-to-day household expenses.

16. At the time of application, the visa applicant provided ANZ statements for an account in the parties’ joint names for the period from July 2017 to February 2018. The debit transactions included payment of day-to-day living expenses.

17. Commonwealth Bank statements for an account in the parties’ joint names for the period from February 2020 to April 2020 were provided. The debit transactions included payments for groceries, entertainment and travel.

18. The evidence before the Tribunal included evidence of joint rental payments made by the review applicant and the visa applicant between July 2019 and 2021.

19. Evidence that the review applicant purchased land in 2020 and entered into a contract to build a house was provided. 

20. A Commonwealth Bank statement for the period from January to March 2023 identifies the review applicant and the visa applicant as borrowers in relation to a home loan.  

21. In a written statement dated 9 April 2023, the review applicant said the visa applicant paid most of the deposit for the land she purchased and she contributed to the mortgage repayments. She said they share the household bills.

22. There is no evidence before the Tribunal that, at the time of application or at the time of this decision, the visa applicant and the review applicant jointly owned any real estate or other major assets. There is evidence of a joint liability and the Tribunal so finds.

23. The Tribunal is satisfied that the parties have pooled their financial resources and shared day-to-day financial responsibilities during the relationship. The Tribunal decided that this was an indicator of a genuine and continuing de facto relationship at the time of application and at the time of decision.

    Nature of the household

24. The Tribunal considered the evidence in relation to the nature of the household including any joint responsibility for care and support of children, the parties’ living arrangements and any sharing of housework.

25. At the time of application, a statutory declaration dated 15 July 2017 made by the parties’ housemate, Mr Adnan Anwar, was provided. Mr Anwar stated that he shared a house with the parties and they shared a bedroom. He said he had known the visa applicant for one year and the review applicant for four years. A statutory declaration dated 29 November 2018 made by the review applicant’s mother was also provided in which she stated that the parties lived together.  

26. In a written statement dated 9 April 2023, the review applicant said that when she and the visa applicant commenced cohabitation, he was living in a share house with two other people. She said they lived together in the share house.

27. A Residential Tenancy Agreement showing the review applicant and the visa applicant as the tenants of a property at Florida Court, Burnside Heights VIC 3023 was provided. The term of the tenancy was stated to be from 19 July 2019 to 19 July 2020. A rental payment statement in the parties’ joint names for this property for the period from July 2019 to August 2021 was provided.

28. In a written statement dated 9 April 2023, the review applicant said she and the visa applicant share household chores.

29. Correspondence addressed to the parties jointly at the same address dated in 2018 and in 2023 was provided. Correspondence addressed to the parties individually at the same address dated in 2018, 2019, 2020, 2021 and 2023 was provided.

30. The Tribunal accepts that the parties have lived at the same residential addresses since the time of application. The Tribunal finds that the evidence presented relating to the parties’ residential addresses and the nature of the household was an indicator of a genuine and continuing de facto relationship at the time of application and at the time of decision.

    Social aspects of the relationship

31. The Tribunal considered the evidence in relation to the social aspects of the relationship including whether the parties represent themselves to other people as being married to each other, the opinion of friends and acquaintances about the nature of the relationship, and any basis on which the persons plan and undertake joint social activities.

32. At the time of application the parties provided four statutory declarations made by family and friends attesting to the genuineness of the parties’ relationship. Photographs showing the parties engaged in social activities with family and friends were also provided. Evidence of joint travel to the Gold Coast in January 2018 was provided.

33. In a written statement dated 9 April 2023, the review applicant said her family, including her mother, have met the visa applicant and were very supportive of their relationship.

34. The evidence provided to the Tribunal included photographs dated in 2019, 2020 and 2021 and 2022 showing the parties engaged in social activities with family and friends. Statutory declarations dated in 2023 made by three of the parties’ friends/colleague were provided. The declarants each stated that they had each known the parties for several years, socialised with them on a regular basis and believed they were in a genuine and continuing relationship. They each gave persuasive reasons for their belief. The Tribunal gives weight to the statutory declarations.

35. The Tribunal finds that the friends and family members of the parties acknowledged the parties’ relationship at the time of application. The Tribunal gives this evidence some weight.  The Tribunal finds, based on the written evidence, that the parties represented themselves to others as being in a de facto relationship to each other at the time of application and continue to do so at the time of decision. 

    The nature of the parties’ commitment

36. The Tribunal considered the nature of the persons’ commitment to each other including the duration of the relationship, the length of time they have lived together, the degree of companionship and emotional support they draw from each other, and whether they see the relationship as long-term.

37. In a written statement dated 9 April 2023, the review applicant described her difficult childhood which included being bullied and subject to racism. She said that her relationship with the visa applicant improved her mental health because he takes care of her emotionally, physically and financially. She said early in their relationship she had to travel to Malaysia for four months as part of her university studies. She said during this separation she and the visa applicant were in daily contact by video or text messages. She said during this time the visa applicant travelled to Malaysia to visit her for 10 days.  She said 15 days before she was due to leave Malaysia, the visa applicant told her he had to return to Pakistan because his father was unwell. She said she  briefly returned to Melbourne to provide the visa applicant with emotional support at this time.

38. In a written statement dated 9 April 2023, the review applicant said she and the visa applicant have built a house together and in the future they want to marry, travel and have children together.  

39. The evidence before the Tribunal included a report from psychologist, Mr Randolph Monteiro, dated 28 May 2022. Mr Monteiro stated that the review applicant had been diagnosed with adjustment disorder and Mixed Anxiety and Depressed Mood. He said that during her sessions she reported that she and the visa applicant supported each other emotionally and financially and said they were soulmates and wanted to have a family together.

    Conclusion

40. Having considered carefully all the evidence of the relationship cumulatively and collectively, the Tribunal finds that at the time of application and at the time of decision the parties were and remain in a committed long-term relationship. In making this determination the Tribunal has taken into account the evidence including the duration of the parties’ relationship, that they provide each other with emotional support and the psychological report.

41. Regarding whether the requirements of s 5CB(2) were met at the time of application and the time of decision, the Tribunal decided:

    ·the parties were not married;

    ·they did not live separately and apart on a permanent basis;

    • they were not related by family (as defined in s 5CB(4));
    • they had a mutual commitment to a shared life together to the exclusion of others; and
    • the relationship was genuine and continuing.

42. 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 and the time of this decision.

43. Therefore, the visa applicant meets cl 309.211(2) and cl 309.221. 

    Are the additional criteria for a de facto relationship met?

44. 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.

45. 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.

46. The visa applicant has provided evidence that the relationship is registered under the Relationships Act 2008 (VIC) as shown on the Relationship Certificate dated 9 August 2017 as a kind of relationship prescribed in the Acts Interpretation (Registered Relationships) Regulations 2008: r.2.03A(5). Accordingly, the 12 month requirement does not apply.

47. For these reasons, the Tribunal is satisfied that the visa applicant meets the additional criteria prescribed in reg 2.03A.

48. 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

49. 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; and

    ·reg 2.03A.

    Christine Kannis
    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).