Schaller (Migration)

[2018] AATA 3436

Schaller (Migration) [2018] AATA 3436 (24 July 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Maria Schaller

CASE NUMBER:  1605667

DIBP REFERENCE(S):  BCC2014/3287113 BCC2016/1818640

MEMBER:Nicholas McGowan

DATE:24 July 2018

PLACE OF DECISION:  Melbourne

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 (Temporary)) visa:

· cl.820.211(2) of Schedule 2 to the Regulations;

· cl.820.221 of Schedule 2 to the Regulations;

· r.2.03A

Statement made on 24 July 2018 at 7:20am

CATCHWORDS
Migration – Partner (Temporary) (Class UK) visa – Subclass 820 (Spouse) – De facto partner – Applicant in charge of bookkeeping – Statements from friends and family – Oral evidence by sponsor’s mother – Consistent evidence on inception – Knowledge of each other – Decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5CB, 65, 338, 347
Migration Regulations 1994 (Cth), r 1.09A, 2.03A, Schedule 2 cls 820.211, 820.221

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. The applicant is a national of Austria. The applicant applied for the visa on 1 December 2014.

2. A delegate of the Minister for Immigration refused to grant the visa applicant a Partner (Temporary) (Class UK) Subclass 820 visa under s.65 of the Migration Act 1958 (the Act) on 14 April 2016  .

3. Having had regard to the refusal decision made by the Minister’s delegate, the Tribunal is satisfied that the refusal decision is an MRT-reviewable decision under s.338(2) of the Act, and that the applicant has made a valid application for review under s.347 of the Act.

4. Having made the assessment that the Tribunal has insufficient evidence to make a favourable decision ‘on-the papers’ (alone). Accordingly, the Tribunal conducted a public hearing with the applicant, sponsor and sponsor’s mother in Melbourne on April 19 2018.

   Background

5. The applicant and sponsor claim they first met in Madrid in 2012 when the sponsor was “travelling across Europe”. The applicant later visited the sponsor in Australia in June 2013, when they claim they began their de facto relationship (living together with the sponsor’s mother in her home from one month). After this stay in Australia the applicant returned to Austria to complete her Masters studies. The parties claim that it was during this stay that they made concrete decisions about their future together, including the applicant finalising her studies, they kind of course the applicant might pursue in Australia longer-term, and agreed their commitment to live together. The applicant returned to Australia in the January of the following year (2014) for another visit. The applicant settled permanently in Australia when she returned for a third time in May 2014. They have lived together ever since. The parties applied for this partner visa in December of that year.

   Issue

6. The issue in the present case is whether the applicant was at the time of application and remains at the time of decision the de facto partner of the sponsor and whether the additional requirements in r.2.03A are also met.

   Whether the parties are in a spouse or de facto relationship

7. Clause 820.211 (2)(a) and 820.221 requires 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 and was identified in the visa application. On the evidence before it, the Tribunal is satisfied that the sponsor is the ‘sponsoring partner’ of the visa applicant.

   Are the parties in a de facto relationship?

8. ‘De facto partner’ is defined in s.5CB of the Act and 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).

9. 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.

10. The Tribunal considered the financial aspects of the relationship. The Tribunal is satisfied by the parties’ documentary evidence at hearing that that they pool their resources to meet their shared day-to-day expenses. It notes that the applicant plays a central role in assisting the review applicant with his booking keeping and administration of his work.

11. The Tribunal accepts from the parties’ oral evidence that the parties share responsibility for maintaining the household.

12. The Tribunal is satisfied from the documentary and oral evidence before it, that the parties have represented themselves socially to close family and friends as a de facto couple, and are accepted and supported by them. There are numerous statements from friends and family to this effect, which is in addition to the oral evidence of the sponsor’s mother at the public hearing which the Tribunal found decisive and genuine because it was given spontaneously and without embellishment. The Tribunal accepts that on the evidence before it, the applicant and sponsor are widely recognised as a couple by their respective families, friends and acquaintances.

13. The Tribunal is satisfied that the applicant and sponsor have now been in a committed relationship since at least June 2013, a period of over five (5) years at the time of this decision.

14. The Tribunal finds the applicant and sponsor gave consistent oral evidence in relation to the inception and development of their relationship and demonstrated a genuine commitment to each other which was evident in their oral evidence and clearly visible to the Tribunal. The Tribunal accepts that both parties commenced living together in a de facto relationship from at least June 2013. The Tribunal is mindful this is a ‘generous’ interpretation which accords the parties the benefit of any doubt given it might appear to outsiders as a relationship more akin to boyfriend and girlfriend. Nonetheless, the Tribunal has made this finding of fact because it has no clear countervailing evidence to dispute the parties’ claims to have committed to each another, moreover, their actions since that time are entirely consistent with those claims. In addition, though not the basis for the finding, the Tribunal can see no benefit or fairness in making a finding in the alternate given the bona fides of the relationship are not in doubt (by either the Department or Tribunal) and after taking into consideration the duration of the relationship at this point, and mindful of the disturbance any forced separation would have on their lives.

15. The Tribunal is satisfied that the applicant and sponsor demonstrated knowledge of each other’s lives consistent with a couple in a genuine and ongoing spousal relationship. The Tribunal is satisfied from all the documentary evidence, and in particular the parties’ oral evidence at hearing which it found to be straight-forward, consistent, and spoke to the extent to which the parties draw companionship and emotional support from each other. It is also satisfied that they see their relationship as long-term.

16. Persons claiming to be in a de facto relationship for a partner visa must also meet the additional criteria in r.2.03A. These are: that the couple are both at least 18 years of age (and with limited exceptions) that the visa applicant has been in the de facto relationship for the 12 months immediately preceding the date of the application, unless he or she can establish compelling and compassionate circumstances for the grant of the visa.

17. Based on the documentary evidence including the visa application and accompanying identity documents, the Tribunal finds that the sponsor and the applicant were both at least eighteen years of age at time of application. The parties therefore met r.2.03A(2)(a) and (b).

18. The requirement that the relationship existed for 12 months prior to the application does not apply in certain circumstances where the sponsor is or was a humanitarian visa holder, or for applications made on or after 9 November 2009, where the de facto relationship has been registered under a relevant State or Territory law [r.2.03(4), (5)]. The Tribunal has had regard to the question of whether, with limited exceptions, at the date of application (2 December 2014) the applicant had been in a de facto relationship with the sponsor for 12 months prior [r.2.03A(3)]. For the reasons stated in paragraph 14 above, the Tribunal is satisfied that this criterion has been met.

    Findings

19. For the reasons outlined above, the Tribunal is satisfied that the additional criteria in r.2.03A are met.

20. On the basis of all the evidence before it, the Tribunal is satisfied that the parties have a mutual commitment to a shared life to the exclusion of all others, that their relationship is genuine and continuing. The Tribunal is also satisfied that they live together. The evidence at the public hearing, which is consistent with the documentary evidence on file, is that they currently reside in South Yarra.

21. The Tribunal is satisfied that they are not related by family as defined by s.5CB(4).

22. The Tribunal is satisfied that the requirements of s.5CB(2) are met at the time of application and decision. Therefore the applicant meets cl.820.211(2)(a) and cl.820.221.

23. 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.

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