Seaman (Migration)

[2024] AATA 2444

Seaman (Migration) [2024] AATA 2444 (13 March 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Schuyler Sydney Seaman

SPONSOR:Mr Zachary Taylor

CASE NUMBER:  2112403

HOME AFFAIRS REFERENCE(S):          BCC2019/526924

MEMBER:Brygyda Maiden

DATE:13 March 2024

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) visa:

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

·cl 820.211(1)(a) of Schedule 2 to the Regulations

·reg 2.03A

Statement made on 13 March 2024 at 5:25pm

CATCHWORDS
MIGRATION –Partner (Temporary) (Class UK) visa – Subclass 820 – have been living together –  applicant had been in the de facto relationship for at least the 12-month period ending immediately before the date of the application –  social aspects of the relationship are consistent with a de facto relationship – couple had a mutual commitment to a shared life to the exclusion of all others – at the time of decision that the parties pooled financial resources – decision under review remitted          

LEGISLATION
Migration Act 1958, ss 5, 65
Migration Regulations 1994, rr 1.03, 1.09, 2.03A, 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 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, a United States of America national applied for the visa on 18 February 2019 on the basis of her relationship with her sponsor. At that time, 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”). The primary criteria must be satisfied by at least one applicant.

3. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl 820.211(2) as the delegate was not satisfied that the applicant had a sponsoring partner or that that the applicant was the spouse or de facto partner of an Australian citizen, Australian permanent resident or eligible New Zealand citizen.

4. The applicant applied to the Tribunal for review on 6 September 2021 and on 14 September 2021 e-mailed a copy of the notification and decision record to the Tribunal.

5. On 24 January 2024, the Tribunal wrote to the applicant inviting the applicant to provide further information to support her claim that the parties are in a spouse or de facto relationship; that the applicant was sponsored by the sponsor at the time of the visa application and that the sponsor is an Australian citizen, Australian permanent resident or eligible New Zealand citizen.  The applicant was given until 7 February 2024 to respond.  She responded in time and submitted documents to the Tribunal.

6. The applicant appeared before the Tribunal on 4 March 2024 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor, the sponsor’s father, the Hon. Philip Taylor SC (“Mr Taylor”), and the sponsor’s mother, Mrs Lee Taylor (“Mrs Taylor”).

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 applicant has a sponsoring partner and whether the applicant and the sponsor are in a spouse or de facto relationship as defined under s 5F and s 5CB of the Act respectively.

   Are the parties in a spouse or de facto partnership?

9. Clause 820.211(2) 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. The applicant submitted a copy of the bio pages of the sponsor’s Australian passport. There is no evidence before the Tribunal that the parties are related by family.

10. The applicant also submitted a copy of the sponsorship for a partner to migrate to Australia form generated on 3 August 2023 (“the Sponsorship Form”). That form indicates that the parties committed to a shared life together to the exclusion of all others on 18 December 2017 which was prior to the time of application. The Tribunal accepts that the applicant is sponsored by an Australian citizen.

    Are the parties in a de facto relationship?

11. '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).

12. In forming an opinion about whether the parties 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.

13. In order to ascertain whether the requirements for a de facto relationship are met, the Tribunal has carefully considered the Department file BCC2019526924, the Tribunal file, the documents submitted by the applicant to the Tribunal, and the oral evidence of the parties and witnesses at the hearing.

14. In respect of the background to the parties’ relationship, the Sponsorship Form states:

    Schuyler [the applicant] and I met while playing an online video game in 2017. After a few months of talking, the two of us decided we were ready to meet in person, and she was able to come visit me in Australia during her Christmas holiday and break from University. We spent a month together in Sydney, as well as Port Douglas and Gold Coast, exploring Australia and discussing the future of our relationship. After she returned to America to finish her degree, we continued a long-distance relationship, communicating over Facebook Messenger and engaging in online games together. Once she was finished with her studies, she came to stay with me in our family's property in Northbridge, NSW where we have lived ever since, advancing our relationship and continuing to grow in love together while we take on life's challenges and progress as people.

15. The applicant’s undated relationship statement indicates that the parties met in September 2017 during an online video game whilst the applicant was in the United States and the sponsor was in Australia.  The applicant submitted photographs contained in her Facebook account dated 7 June 2017, 5 June 2018, 28 February 2019 which show the parties together during those times.  The picture taken in 2017 indicates that the sponsor was with the applicant in Omaha, USA.  It became apparent from the parties’ oral evidence that in fact the Sponsorship Form and the applicant’s undated relationship statement were incorrect in respect of when the parties met, and instead, the parties had met in 2016 playing an online video game, the applicant visited Australia in 2016 and the sponsor travelled to Omaha to meet the applicant in 2017. Given the time has elapsed since the parties met, the Tribunal accepts that recalling dates may be difficult and does not afford this any adverse weight.

    Financial aspects of the relationship

16. The 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.

17. The parties gave consistent evidence that the sponsor was an estimator for constructions projects and the applicant was a marketing coordinator. Both parties gave consistent evidence about each other’s employers.  The Tribunal affords this some weight.

    (a)Do the parties have any joint ownership of real estate or other major assets?

18. There is no evidence before the Tribunal that the parties jointly own any real estate or other major assets.

    (b)Do the parties have any joint liabilities?

19. The applicant submitted a contract for the sale and purchase of land for a property in Stokes Avenue with the purchaser being the sponsor and a contract date of 1 September 2023.   The applicant told the Tribunal that the loan for that property was in the sponsor’s name.  The sponsor told the Tribunal that having someone on the loan who was not an Australian citizen meant access to worse interest rates.  Consistently, Mr Taylor gave evidence that the parties had purchased a house not to far from his. The sponsor is the formal owner, it was going to be all four of them (him, his wife and the parties – which is also consistent with other documentation submitted by the applicant to the Tribunal), but it worked out to be better if it was just the sponsor due to the applicant’s visa status.  The Tribunal accepts this evidence and finds that there is no evidence before the Tribunal that the parties have any joint liabilities together.

    (c)The What is the extent of any pooling of financial resources?

20. The sponsor told the Tribunal that the applicant contributes financially. The loan repayment comes out of the parties’ joint account, his income is paid into the joint account and the applicant also contributes to the joint account.  The applicant submitted a joint Commonwealth Bank everyday offset account statement, number 2, for the period of 22 September 2023- 21 December 2023 which supports the sponsor’s evidence.  Regular loan repayments are debited from that account.   The sponsor’s monthly salary appears to be deposited into the account, and both parties gave evidence that the applicant also deposits money into the joint account – which is consistent with the bank statement.  The Tribunal accepts that at the time of decision that the parties pooled financial resources.

    (d)What is the extent that one person in the relationship owes any legal obligations in respect of the other?

21. There is no evidence before the Tribunal that either party owes any legal obligations in respect of the other.

    (e) What is the basis of any sharing of day-to-day household expenses?

22. The Sponsorship Form states:

    Schuyler [the applicant] and I split all of our expenses evenly, covering what each of us agree upon as shared expenses such as food, gas and living expenses. We have a detailed expenses breakdown document in which we keep track of our spending and calculate how payments will be split between the two of us, which will be provided along with this application. Both of us make our own wages with separate bank accounts, between which we transfer payments for these living expenses on a monthly basis. Personal expenditures such as clothing and recreation are paid for individually.

23. The applicant submitted a NAB Classic Banking statement from 22 January 2022 until 22 July 2022, in the sponsor’s name.  On a number of occasions, including for example on:

    a.14 March 2022, $2,364.15 was deposited into the account with the narration “Ms Schuyler Sydney S Expenses Dec – Mar 22/12/21 – 10/3/22”;

    b.12 May 2022,$2,537.79 was deposited into the account with the narration “Ms Schuyler Sydney S Expenses Mar – May”.

24. The applicant attached two spreadsheets for living expenses between 2021-2023.  An explanatory document from the sponsor states that the spreadsheet is where the parties would input their expenses, with the sponsor’s on the left and the applicant’s on the right.  “Whatever the difference was between the higher and lower expenses paid the person who paid less would pay the person who paid more half of the difference which was always Schuyler to Zac.”  It is clear from the NAB Classic Banking statement above, that the applicant is paying funds to the sponsor, which appears to be in accordance with this arrangement. 

25. The sponsor gave generally consistent evidence at hearing.  The Tribunal asked what the expenses on the spreadsheet that were submitted marry up to as no supporting documents had been submitted.  The sponsor indicated that it was things like petrol, groceries and bills.  The things that would not be included would for example be if the applicant purchased makeup, skincare, feminine products or she purchased lunch at work – as these were not joint expenses.

26. The sponsor told the Tribunal that the applicant paid most of the stamp duty and for the solar on the roof of the Stokes Avenue property (no evidence of this was submitted to the Tribunal).  Now that the parties reside at Stokes Avenue, the sponsor told the Tribunal that the parties are contributing all their money to help pay for the house. The Tribunal accepts this evidence as it appears generally consistent with the parties’ joint bank account statement.  Additionally the joint account statement appears to show joint household expenses including but not limited to the following examples: insurance (e.g. NRMA), appliances (Appliances Online), groceries (Coles), pharmacy (Chemist Warehouse and Instant Scripts), dining (Grill’d, Café Minamisan, Sumo Salad and Crust), utilities (Red Energy and Sydney Water), transportation (Uber and Jetstar), accommodation (Rydges Melbourne), fuel (Ampol and Metro Petroleum).  The sponsor gave oral evidence (and checked the utility bills during the hearing) and told the Tribunal that Red Energy and Sydney Water were in his name as he signed up for the bills.  Regardless of whose names the utilities are in, the utilities appear to be debited from the parties’ joint account.  The Tribunal affords this some weight.

27. The sponsor told the Tribunal that in relation to the expense keeping in the early years of their relationship, neither of the parties had solid work.  He did not have a degree they were on a bit of Centrelink and they used that to pay for food and petrol. 

    Conclusion on the financial aspects of the relationship

28. In respect 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, no joint liabilities there was no pooling of financial resources, no party in the relationship owed any legal obligations in respect of the other, and there is a small amount of evidence of the sharing of household expenses. At the time of application, the financial aspects of the parties’ relationship do not support the parties being in a genuine and continuing relationship or having a mutual commitment to a shared life.

29. At the time of decision, the parties have no joint ownership of real estate or other major assets, no joint liabilities, there is evidence of the pooling of financial resources and both parties contributing to a joint account where loan repayments are debited from.  There is no evidence that one party in the relationship owed any legal obligations in respect of the other, and there is evidence of the sharing or household expenses.  At the time of decision, the financial aspects of the relationship provide some support for the parties being in a genuine and continuing relationship and having a mutual commitment to a shared life.

    Nature of the household

30. 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.

    (a) Do the parties have any joint responsibility for care and support of children?

31. There is no evidence before the Tribunal that the parties have any joint responsibility for the care and support of any children or any children of their own.

    (b)  What are the parties' living arrangements?

32. Consistently, the applicant submitted e-mail dated 6 February 2024 from Mr Taylor attaching a rates notices in his name for a property at Northbridge, New South Wales.  Mr Taylor indicates that he has owned the property since February 2016.  “The property has a separate residence downstairs that has been rented out for much of the time since 2017, but the separate upstairs has always been retained by me for my use.  Since about 2017 or 2018 until 2023, I have allowed my son Zac [the sponsor] and his partner Schuyler [the applicant] to live in that residence, free of rent.  They vacated those premises in about September 2023.” 

33. The parties evidence at hearing was also consistent: with the applicant stating that the parties had lived at the Northbridge property for approximately 5 years.  The sponsor stated that they had lived in that property together in 2018.  Both parties stated that after living there they moved to Stokes Avenue together in September 2023.  The sponsor indicated that no one else resided with the parties.

34. The Tribunal accepts that the parties have been living together since somewhere between 2017 and 2018 and the Tribunal affords this some weight.

    (c) Do the parties share the responsibility of housework?

35. The applicant told the Tribunal that the sponsor does the dishes, the yard, all the mowing, the trash and bug killing.  She does the laundry, the cooking, the grocery shopping and the rest. The sponsor gave consistent evidence that the applicant does all the grocery shopping, cooking and the laundry, and the sponsor indicated that he cleans the kitchen.  The Tribunal accepts this evidence and gives it some weight.

    Conclusion on the nature of the household

36. In respect of the nature of the parties’ household, at the time of application and the time of decision, the parties have no children together and no joint responsibility for any care and support of any children.  In respect of the parties’ living arrangements they have lived together since prior to the time of application and remain living together and share the responsibility for housework (though the applicant appears to do more).  At both the time of application and decision (though there is more support for this position at the time of decision), the nature of the household provides some support for the parties being in a genuine and continuing relationship and living together and not separately and apart.

    Social aspects of the relationship

37. 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.

    (a) Do parties represent themselves to other people as being in a de facto relationship with each other? What is the opinion of the parties friends and acquaintances about the nature of the relationship?

38. A screen shot of the applicant’s Facebook page indicates that she has 1,200 friends, lives in Sydney and is in a relationship with the sponsor. The Tribunal affords this some weight.

39. The Tribunal discussed with the applicant its concern about the relatively little evidence submitted in respect of the social aspects of the parties’ relationship and no evidence pertaining to the opinion of the parties’ friends and acquaintances about the nature of their relationship and gave the applicant additional time post hearing to submit additional information.  Other than a small amount of photographs the applicant submitted nothing further in this regard.

1. The applicant told the Tribunal that the parties don’t have many friends, they play video games and do not have an extended social network.  The applicant is an only child and the sponsor has his brothers and if they do anything social it is usually with his brothers.  The sponsor gave generally consistent evidence. 

2. Mrs Taylor told the Tribunal that the parties have a positive relationship but it is not perfect.  They have some things in common and they are continuing to learn how to adapt to each other.  The more time that has elapsed, the more they have gained trust with each other.  The parties do not fight much.  Mrs Taylor confirmed that the parties are not big socialisers, and they socialise with family.  The sponsor had a lot of school friends but as he went to university and work, not so much.  The sponsor’s work load is heavy and when he went to university he was working full time and doing his degree.  The applicant is also a good worker and works full time.  Mrs Taylor has met the applicant’s mother several times in America, in either 2016 or 2017.  The Tribunal affords this some weight.

3. Mr Taylor told the Tribunal that when the parties were living in his place, as far as he could see they were a couple.  The parties do a lot of things together.  When the sponsor visits, 90 to 95 percent of the time the parties visit together.  The parties have stayed with them on holidays in Queensland.  He has gone to America and met the applicant’s mother and late father and stayed with them in a holiday place in Colorado.  The applicant’s father died one and a half to two years ago.  The applicant’s mother came to Australia in Christmas 2022 and stayed with them in their place in Queensland.  As far as Mr Taylor knows, the places that the parties have lived have only had one bed, and, to him, they live in a de facto relationship.  They work out their money between each other and they have bits and share other things.  They live and go out together.  They are just as much a couple as his elder son who is married with three children.  The Tribunal affords this some weight.

   (c) Is there any basis on which the persons plan and undertake joint social activities?

4. The Department file contains a small number of pictures of the parties together.  They are not time or date stamped and are not labelled. There is no indication from the parties that they have socialised with others.  The Tribunal affords them little weight.

5. The Department file contains a paid itinerary from a flight for the applicant departing Sydney on 5 March 2019 to Omaha and returning from Omaha on 17 April 2019 to Sydney.  There is another itinerary on the Department file from Kansas to Sydney departing on 7 December 2016 and returning on 13 January 2017 but the name has been cut off and it is not clear whose itinerary it is.

6. According to the Sponsorship Form:

   Schuyler and I share many friends and acquaintances in our personal life. Schuyler has integrated with my friend group and family to become well-known, familiar and enjoyed by them, and these feelings are reciprocated by her. Schuyler is especially close with my immediate family, and has met my grandparents, cousins, aunts, uncles, nieces and nephews, located in Sunshine Coast QLD, Gold Coast QLD, Sydney and Finley NSW on both sides. Spending time with my immediate family on the weekends and extended family during get togethers and holiday periods is one of our favorite [sic] ways to spend time. We are especially close with my two brothers. Josh (my older brother), his wife and his three children are very familiar with Schuyler, and Jacob (my younger brother) has known Schuyler since very early on in our relationship, interacting with her both online and in-person throughout the length of our relationship. Additionally, I have met Schuyler's family and friends in the States while spending time there in 2017, introducing myself and getting to know them better before she came to stay with me.

7. The parties gave consistent evidence as to each other’s closest friends.  The Tribunal affords this some weight. 

8. Screen shots from the applicant’s Facebook account from 7 June 2017, 5 June 2018, 28 February 2019 depict photographs of the parties together during those times.  The picture taken in 2017 indicates that the sponsor was with the applicant in Omaha, USA.

9. Post hearing the applicant submitted a copy of her Facebook post on 7 July 2017 of the sponsor and the applicant’s uncle starting a campfire in Eveleth, Minnesota, USA; 18 June 2017 of the parties together with others (including with her friend Liz which both parties had mentioned was one of the applicant’s best friends) in Omaha, USA on 6 August 2017 of the sponsor with one of the applicant’s friends in La Platte, Nebraska, USA, on 6 August 2017 at Steamboat Springs, Colorado.  The narration indicates that the applicant took the photograph of the sponsor with his sister’s children horse riding. 

10. The applicant also submitted photographs of the parties with her co-workers for an outing to the Hunter Valley; of the parties and her mother swimming whilst in Thailand last year (which is consistent with the parties’ joint bank account statement that indicates that they had been in Thailand); of the parties with the sponsor’s children when his sister visited in Christmas 2021, and of the parties with the applicant’s mother during Christmas 2022.

11. Mr Taylor told the Tribunal that the parties do things together, they go to the gym, go climbing and holiday together.  In his dealings with them they do things together rather than separately, perhaps more than the average couple. The parties have one car at the moment which is his as their car broke down.  They have had to share a car.  He has two other sons in Australia and a daughter in America and the applicant has regularly seen his two sons in Australia and daughter in America and holidayed with them.  The applicant has associated with all his immediate and extended family. The Tribunal affords this some weight.

12. Mr Taylor indicated that he had signed a statutory declaration.  The Tribunal indicated that it had not been provided with it.  The Tribunal later discussed this with the applicant and indicated to the applicant that if Mr Taylor wished to swear another he could if he wanted to cover off anything else that he had not already told the Tribunal and the applicant could submit it post hearing.  No additional statutory declarations were submitted post hearing.

    Conclusion on the social aspects of the relationship

13. At the time of application and time of decision the Tribunal is satisfied that the parties represent themselves to other people as being in a de facto relationship. Although there is no evidence from friends or acquaintances pertaining to the nature of the parties’ relationship, the sponsor’s parents gave credible and convincing oral evidence as to the nature of the parties’ relationship.  There is evidence that the parties plan and undertake joint social activities though these appear to mostly be with family.  The Tribunal is satisfied that at both times the social aspects of the parties’ relationship provide support for the parties being in a genuine and continuing relationship and having a mutual commitment to a shared life to the exclusion of all others.

    Nature of persons' commitment to each other

14. 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.

    (a) What is duration of the parties’ relationship?

15. The applicant’s undated relationship history statement states that the sponsor asked the applicant to begin a committed relationship together on 18 December 2017 (which appears to be an error) in Port Douglas. The applicant told the Tribunal that the parties’ relationship became official in Port Douglas in December 2016 which the Tribunal accepts is the correct date as it is consistent with other evidence before the Tribunal.  At the time of application (that is on 18 February 2019), the parties had been in a relationship for over two years.  At the time of decision the parties had been in a relationship for over seven years.  The Tribunal affords this weight. 

16. Mrs Taylor gave evidence that the applicant had come to Australia in 2016 or early 2017 and the parties had met playing World of Warcraft.  The applicant came to Australia for a visit; returned to the United States as she had to finish her degree then moved to Australia.  The parties have been together for six years or longer.  The Tribunal affords this some weight.

    (b) What is the length of time that the parties have lived together?

17. Mr Taylor’s evidence was that the parties commenced living together between 2017 or 2018 until September 2023 rent free at a property he owned.  Mrs Taylor gave consistent evidence that the parties had moved into the upstairs flat for a property that that they owned and she though that was four or five years. 

18. Mr Taylor gave oral evidence and indicated that although he was not perfect on the years, that pretty much since 2018 until last year so for about five years the parties had lived his investment property.  He had helped them a bit, and the parties purchased a house not too far from him.  The parties had started living together pretty soon after the applicant moved to Australia, now in their own home from September last year, and for about five years they lived in his unit. 

19. The applicant gave generally consistent evidence that when she moved to Australia in 2018 (though she was not certain whether it was February or March 2018) but stated that she moved in with the sponsor at his father’s property and has always lived with him (except for the times when she travelled back to the US).

20. The Tribunal accepts that the parties were living together for approximately a year at the time of application.  The Tribunal affords this some weight. At the time of decision, the parties have been living together for approximately six years.  The Tribunal affords this weight.

    (c) What is the degree of companionship and emotional support that the parties draw from each other?

21. The parties gave consistent evidence that the visa applicant likes to play video games and the sponsor likes going to the gym and playing video games.  The Tribunal affords this some weight.

22. According to the Sponsorship Form:

    Schuyler [the applicant] and I have been through many significant life hurdles together and have grown together as people since the beginning of our relationship. We met when we were 22 and 28 years old and, now 28 and 35, have accomplished much as well as struggling through life's challenges and the difficulties involved in an overseas relationship. We have been there for each other, sometimes solely, for major family tragedies and losses as well as finding and excelling in our careers. Throughout all this, our love for each other has strengthened gradually. We are deeply personal compatible, sharing many similarities along with complimentary differences in which we find character growth and opportunities to learn from one another. We are deeply committed to our relationship together and plan to maintain the exclusive and dedicated relationship we have built, both now and into the future. I care very deeply about her and would like her to be in my life indefinitely.

23. The applicant’s undated relationship statement states that the sponsor is the applicant’s best friend:

    …and has become the person to whom I am closest to in the world – when I am sick, hurting or upset, he is there to support and comfort me and makes me feel like I have a safe place that I can always count on. We have both suffered significant personal losses within our families and have been there for each other to help cope with the effects of these losses. We have grown tremendously while together, both as people and as a couple. This is aside from he and his family’s help with housing, caring for and accommodating me while I get used to life in Australia and providing comfort in my times of homesickness and missing my own family. We know and love one another very deeply. Our families have met and even stayed with each other, and our personal lives have become well and truly intertwined. There is nobody else I would rather spend the rest of my life with. I would do any and everything in my power to be able to stay with him in Australia and continue a happy life together.

24. The applicant told the Tribunal that when she met the sponsor he had a lot of professional development to do.  He had not figured out what he what he would do for his career.  The applicant was “on him” about that.  The sponsor went through school, commenced his career and she was there for him through all of that.  Sometimes he needed emotional and academic support and she was there for both of those. If he felt down or if he was on a path that was not good, she helped redirect him.  His family are decent high achievers, and spending time on video games he felt as if he was not living up to what he could of and there was a bit of self doubt about that.  The applicant helped him focus on the present.  One of her strengths is her emotional and intellectual support to him.  She is smart and helped him spark more curiosity in the world.  When he comes home from work and the gym he is tried, and she will help him in the kitchen, and although it is not a huge task, it is a support to him. The Tribunal affords this weight.

25. The applicant told the Tribunal that the sponsor supports him all the time, he is her everything and best friend.  He supported her when her father, uncle and grandfather passed away and even before that as it was difficult for her to move to Australia.  She cannot think of anyone who has emotionally supported her more than the sponsor.  The sponsor gave similar evidence, the applicant’s father passed away a year or two ago, the applicant was grieving and being an only child is hard.  He provided her with comfort, gentle words, cuddled her and made her feel okay so she did not feel so sad.  The applicant was also homesick coming to Australia.  He would show her the happy and good things about Australia so she could make this part of her home.  He would show her things like nature and go bushwalking.  The Tribunal affords this weight.

    (d) Do the parties see the relationship as long-term?

26. The applicant told the Tribunal that the parties wanted to pay off their mortgage, they would like to have babies, but first will need to be engaged and married, and will not do anything until her visa was sorted.  The applicant said the sponsor wants five children and she wans two as a maximum, and the parties have decided to have children one at a time, that was their current plan. The sponsor gave generally consistent evidence that the parties have been discussing children and marriage – which was becoming more of a sure thing.  The mortgage has put additional stress on him, and he is working hard so he can be a provider in the future.  The parties have talked about children, the applicant is turning 30 this year, and he though that was a good time to have children.  The parties have to organise a marriage first, they need to do things in the proper order.  The financial things with the marriage have probably pushed things back, and after that, they will have some children. He told the Tribunal that the applicant was an only child and he came from a family with four siblings, it was a lot of fun, they’d play footy in the yard.  He wanted three or four children, but the plan is to start with one child and see how that works.  The Tribunal affords this some weight.

27. The applicant said if she could not stay in Australia that would be very bad.  They would have to go back to long distance until they worked out a plan B.  She though that one of them would have to die before they separated – they would go back to long distance.  The sponsor said that he did not like to think about that as it was sad and depressing.  He would have to figure something out and would have to go to America.  He likes Australia and that is where is his life is, but he would follow her to America.  He did not think he would earn as much there and it would be a bit of a down grade for them.

28. The Tribunal accepts that the parties see their relationship as long term and affords this weight.

    Conclusion on the nature of the persons’ commitment to each other

29. At the time of application the parties had been in a relationship for over two years and at the time of decision the parties had been in a relationship for over seven years.  The parties were living together for approximately a year at the time of application and for approximately six years at the time of decision. At both times the Tribunal accepts that the parties draw significant emotional support from each other. There is some evidence at the time of application that the parties saw their relationship as long term and significantly more at the time of decision. At both times (but particularly at the time of decision), the nature of the persons’ commitment to each is supportive of the parties being in a genuine and continuing relationship, having a mutual commitment to a shared life and living together.

30. For the reasons already provided in relation to the 1.09A 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. Therefore, the Tribunal finds that the applicant and sponsor meet the definition of de facto partners in s 5CB of the Act.

    Are the additional criteria for a de facto relationship met?

31. 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 both parties were over 18.

32. 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). 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. On the evidence before the Tribunal 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.

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

34. The applicant’s movement records indicate that she entered Australia on a US 462 (work and holiday) visa which ceased on 23 March 2019 and according to the decision record on 18 February 2019 the applicant “lodged a valid application for a UK Partner (Temporary)…” visa application. The Tribunal finds that at the time of application, the applicant held a “substantive visa” as defined under s 5 of the Act, and therefore the requirements in cl 820.211(d) of Schedule 2 to the Regulations do not apply.

35. Therefore the Tribunal finds that the applicant meets cl 820.211(2) and cl 820.221(1)(a) of Schedule 2 to the Regulations and 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

36. 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) of Schedule 2 to the Regulations;

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

    ·reg 2.03A

    Brygyda Maiden
    Member

    
    

    ATTACHMENT - Extract from Migration Regulations 1994

    1.09A     De 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).