Shrestha (Migration)

[2019] AATA 1554

Shrestha (Migration) [2019] AATA 1554 (7 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Sangya Shrestha

CASE NUMBER:  1620266

HOME AFFAIRS REFERENCE:                BCC2014/3592604

MEMBER:Rosa Gagliardi

DATE:7 March 2019

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 of Schedule 2 to the Regulations;

·cl.820.221 of Schedule 2 to the Regulations; and

·r.2.03A.

Statement made on 07 March 2019 at 4:19pm

CATCHWORDS
MIGRATION  – Partner (Temporary) (Class UK) visa – Subclass 820 – consistency of evidence over a lengthy period of time – sufficient evidence of genuine and continuing de facto partnership – decision under review remitted

LEGISLATION
Migration Act 1958, ss 5CB, 65
Migration Regulations 1994, rr 1.09A, 2.03A, Schedule 2, cls 820.211, 820.221
Victoria Australia Relationships Act 2008

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 and Border Protection to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 31 December 2014 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 (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 satisfy cl.820.211 because there was insufficient evidence that the parties were in a genuine and continuing de facto relationship as defined by s.5CB(2).

4. The applicant appeared before the Tribunal on 15 January 2019 to give evidence and present arguments. The Tribunal also received oral evidence from  the sponsor. The Tribunal hearing was conducted with the assistance of an interpreter in the Nepali and English languages.

5. The applicant was represented in relation to the review by her registered migration agent. The representative attended the Tribunal hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Whether the parties are in a spouse or de facto relationship

7. 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.

   Are the parties in a de facto relationship?

8. '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).

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. Each of the specific matters contained in r.1.09A(3) are effectively questions which must be answered: He v MIBP [2017] FCAFC 206.

   Background

10. The parties were both born in Nepal and have never been married previously.  The sponsor is 31 years of age and the applicant is 27.

11. Both parties gave credible and consistent evidence that they first met at a mutual salon as the sponsor was friendly with the owner and was able to obtain the applicant’s number.  The sponsor had thought the applicant attractive and on finding from his friend that she was single sought her number.  They communicated and after a while decided they would meet in person.  Their first date occurred on 10 June 2013 after work.  They then developed a strong connection.  In her relationship statement the applicant writes, “I came to Australia in 2012 and did not have many friends or family here.  I was having tough time trying to adjust in new country without family.  Prayash supported me emotionally and financially during that time and helped me go through hard times during my university days.  We have been each other’s support on (sic) sickness and hard times.  During that time we used to meet almost every day either after my classes or work.  Sometimes he used to come to meet me where I was doing my placements”.

12. The applicant was introduced to the sponsor’s friends.  The sponsor and applicant do not have family in Australia.  During this time the sponsor would stay at the residence of the applicant and vice versa, but as the applicant comes from a traditional family when her parents visited her in December 2013 for her graduation, he did not live with the applicant because they would not have accepted them living together without being married.  During this time they were in a committed relationship.

13. When the applicant’s parents left Australia the parties then started living together at the applicant’s residence in Oak Park.  They both lived in Oak Park until 2015 and then moved to Pascoe Vale together.  They did not share the house with others being the only occupants as a couple until December 2016.

14. Subsequently they moved to Glenroy where they currently live.

15. The Tribunal found the account of the inception of the relationship and its trajectory realistic as it did the evidence overall. This is particularly so as the evidence submitted supports the parties’ claims that they are in a genuine and continuing de facto partnership as defined by s.5CB(2) of the Act.

16. The parties registered their relationship under the Victoria Australia Relationships Act 2008 on 7 February 2017.

    The financial aspects of the relationship

17. The applicant is working in a casual position only and the sponsor has only recently gained a reasonably well remunerated position.  In these circumstances the Tribunal would not expect the parties to have purchased significant assets together. They both have their own accounts but the Tribunal has sighted evidence of the parties having started a joint bank account on 12 May 2014.  The parties stated that they deposit funds into this joint account for their household and every day expenses, including rent.  The more recent evidence of the joint account indicates that the parties pay their rental commitments from this account, including energy costs, as well as health and every day grocery items.  The Tribunal is satisfied that the parties’ joint bank account is reflective of the parties having joint financial responsibilities for a joint household.

18. At hearing the parties also spoke independently of their plans to purchase a home together in the Epping area.  The sponsor has had a loan pre-approved but until the applicant has ongoing residency in Australia, they are not able to move ahead with the plan.  The parties stated that they would both contribute all their resources to the loan.

19. The Tribunal also notes that the applicant is nominated in the sponsor’s superannuation documentation as being the sole beneficiary.

    The nature of the household

20. The parties have submitted joint leases reflecting cohabitation at Oak Park in 2014; Pascoe Vale; and Glenroy consistent with the parties’ verbal evidence that they have lived continuously together apart from the time the applicant’s parents visited Australia early on in their relationship. The Tribunal accepts that the parties during a brief period concealed the sleeping arrangements from their parents for cultural reasons, even though they did not conceal the existence of the relationship. 

21. The Tribunal places significant weight on the consistency of evidence over a lengthy period of time showing that the parties have been sharing a residence and the Tribunal is satisfied that they have done so as a de facto couple, although as the Department highlighted in its decision, it is unclear when the relationship became a de facto partnership in the sense that the parties were no longer boyfriend and girlfriend during 2013/2014.

22. The Tribunal accepts the evidence that the applicant cooks while the sponsor undertakes other chores around the house.

23. After the Departmental decision was made the parties submitted a significant amount of evidence demonstrating that the parties had joint utility accounts sent to them at the addresses they have nominated as their place of cohabitation. 

24. The parties have travelled together extensively including to the Gold Coast on two occasions, and Cairns and photographs have been submitted.  They also travelled together as a couple in 2017 to Thailand and met up with the applicant’s sister and husband there on a holiday.  The parties also visited their parents in Nepal as their families are now aware of their relationship, even if the parties have not been fully open with them about their living arrangements as it is expected that they would only live together on marriage (evidence sighted).  The applicant stated that her sister, with whom they had holidayed in Thailand, was aware of her living arrangements with the sponsor and was accepting of their circumstances.

    The social aspects of the relationship

25. The photographic material submitted shows the parties together in social situations and in holiday settings with others.  The photos appear to be natural mementos of the parties’ social outings and gatherings in household situations. 

26. In addition, the Tribunal places significant weight on the fact that the applicant’s parents and sponsor’s parents have met in Nepal in recognition of the relationship having been formalised and the parties’ intention to marry in the not too distant future. 

27. The Tribunal also accepts that the parties have been open about the relationship per se with family and that the applicant’s sister has a greater knowledge of the parties’ actual living arrangements.  The parties both stated that in 2020 they wanted to formalise their relationship further by marrying in Nepal so that both sides of the family could attend.  They explained that as yet they had not married because of the cost involved in what would be a traditional and large wedding. 

28. At hearing the Tribunal asked the applicant whether she and her sponsor nominate each other in their tax returns as being each other’s partner.  The applicant stated that she had her tax returns on her phone at the relevant government website and showed the Tribunal that she had nominated the sponsor as her partner in her return lodged in 2014-2015.  The Tribunal, together with the other probative evidence submitted, places weight on evidence that was provided to the Tribunal in such an impromptu situation.  It also accepts that the applicant has nominated the sponsor as her partner in subsequent financial years on lodging her tax returns.

29. In addition, the parties have submitted statutory declarations by way of Forms 888.  One declarant states that since knowing the parties they have all become family and that they all attend functions and celebrations together.  References are also made to the parties getting married in 2020 and that both families were looking forward to their marriage. 

30. Others also attest to the genuine and continuing nature of the relationship and one of the declarants has attached a group photograph taken on his daughter’s first birthday party in 2017, to illustrate the degree to which the sponsor and applicant socialise as a de facto couple.

    The nature of the persons’ commitment to one another

31. The Tribunal spoke to the parties about their recent every day movements and they provided consistent information.  The Tribunal is satisfied that the parties are aware of each other’s activities on a day to day basis and that they share meals together, even though their work hours are irregular.

32. Both parties independently discussed their future plans to marry and to then have children.  They also have plans to travel to Japan to visit a sibling who has had a child recently.

33. The relationship has been in existence for 5 years now and this application was lodged on 31 December 2014.  The longevity of the relationship does not, of itself, indicate that the relationship is genuine and ongoing.  In the case of the parties, however, given the credibility attributed to them by the Tribunal, the Tribunal is satisfied that the length of their relationship is reflective of a strong commitment to one another.  The Tribunal is satisfied that the parties see their relationship as long-term and that they draw companionship and emotional support from each other.

34. In addition, the evidence illustrates that the parties are not living separately and apart and that they have a mutual commitment to a shared life to the exclusion of others.

35. 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 at the time of this decision.

36. Therefore the applicant meets cl.820.211(2)(a) and cl.820.221.

    Are the additional criteria for a de facto relationship met?

37. 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.

38. 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.

39. The applicant has provided evidence that the relationship is registered under the Victoria Australia Relationships Act 2008 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.

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

41. 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

42. 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 of Schedule 2 to the Regulations;

    ·cl.820.221 of Schedule 2 to the Regulations; and

    ·r.2.03A

    Rosa Gagliardi
    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).