Simmonds (Migration)

[2019] AATA 5377

Simmonds (Migration) [2019] AATA 5377 (12 August 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Terrence Paul Simmonds

CASE NUMBER:  1712527

HOME AFFAIRS REFERENCE(S): BCC2015/4124021 BCC2017/2337694

MEMBER:P. Maishman

DATE:12 August 2019

PLACE OF DECISION:  Perth

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.820.221 of Schedule 2 to the Regulations

·r.2.03A

Statement made on 12 August 2019 at 11:32am

CATCHWORDS

MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – de facto relationship for 12 months – limited evidence of joint financial arrangements – joint assets and liabilities - housesitting arrangements – decision under review remitted

LEGISLATION

Migration Act 1958, ss 5, 65
Migration Regulations 1994, Schedule 2, cls 801.211. 801.221; rr 1.09; 2.03

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 2015 on the basis of his relationship with his 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(2) because the delegate was not satisfied that the applicant had been in a de facto relationship with the sponsor for 12 months at the time of application.

4. In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the visa applicant on the basis of the material before it, pursuant to s.360(2)(a) of the Act.

5. The applicant was represented in relation to the review by his registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The Tribunal had before it a copy of the Department’s file containing the visa application and evidence provided in respect of the application. 

8. The applicant provided a copy of the delegate’s decision record with his request for a review of the decision. The decision record contains the applicant’s visa and travel history to Australia. The applicant applied for the visa on 31 December 2015.  

9. The delegate was concerned that evidence provided by the applicant was dated from less than 12 months prior to the lodgement of the application and gave that information little or no weight in relation to whether the applicant and sponsor saw their relationship as long-term, or that they had a commitment to a shared life together. The delegate was concerned that the applicant and sponsor had not established a joint household as de facto partners. The delegate was concerned that the applicant and sponsor opened a joint account solely for the purposes of the Partner visa on 31 January 2014 because it was not used until 20 May 2014. The delegate gave no weight to the applicant and sponsors travel together because there were many reasons for people to travel together.

10. The applicant gave the Tribunal additional documentary evidence, a copy of which has been forwarded to the Department.

11. The issue in the present case is whether the applicant has been in a de facto relationship with the sponsor for at least the period of 12 months ending immediately before the date of the application.

    Whether the parties are in a spouse or de facto relationship

12. 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?

13. '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).

14. 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.

15. The Tribunal considered the matters as set out in r.1.09A(3).

16. The applicant and sponsor have held a joint bank account from January 2014. The delegate was concerned that the account was opened for the purposes of the Partner visa application as the first transaction was on 20 May 2014. The Tribunal has considered the ongoing statements of that joint account and can see that the account became progressively more active as their relationship matured. The sponsor provided the Department a written statement saying during the visa application process the applicant was not permitted to work and she was prepared to support him financially and provided receipts of purchases she had made. The applicant and sponsor are ‘house sitters’ and so do not have utility bills or rent obligations.

17. The applicant and the sponsor have their own individual accounts and it is becoming less common that individuals, despite being in genuine relationships, rely on the use of a joint bank account to pool their resources.

18. There is no evidence that the applicant and sponsor have joint ownership of assets or joint liabilities. The Tribunal accepts that the applicant and sponsor assist each other financially in their day-to-day living costs and have done so since April 2014.

19. The Tribunal finds that the applicant and sponsors financial arrangements are indicative of a couple in a de facto relationship since prior to 31 December 2014.

20. The parties’ evidence is supported by the documentary evidence from housesitting clients that they have been living together since April 2014. Testimonies from people for whom they have house sat for support that they have been sharing house sitting tasks together and have been recognised as a couple since at least April 2014. The Tribunal is satisfied that the lack of utility accounts is explained by the applicant and sponsors accommodation status. The applicant and sponsor share the domestic duties such as cleaning, cooking, washing and gardening.

21. The Tribunal finds that the nature of the applicant and sponsors household is indicative of a couple in a de facto relationship since April 2014.

22. Correspondence from housesitting clients dates back to April 2014 address the applicant and the sponsor together. Personal correspondence of the sponsor from early April 2014 details the process the applicant and sponsor were following in relation to the applicant moving to share his life with the sponsor. There is a preponderance of statutory declarations and photographs of friends and family confirming the applicant and the sponsor are considered a couple. The Department’s movement records indicate that the sponsor has travelled overseas on the same flight as the applicant on each of his departures and arrivals into Australia since July 2014. The applicant has, in addition, provided receipts and itineraries supporting that the applicant and sponsor travel together.

23. The Tribunal is satisfied that the applicant and the sponsor present themselves as being in a de facto relationship with each other, and their friends and acquaintances are of the opinion that they are a de facto couple and have been prior to December 2014. The applicant and sponsor plan and undertake joint social activities together.

24. The Tribunal finds that the social aspects of the applicant and sponsors relationship is indicative of a couple who have been in a de facto relationship since prior to December 2014.

25. The applicant and sponsor have lived together as a couple since April 2014.

26. The Tribunal is satisfied that the nature of the applicant and sponsors commitment to each other is indicative of people in a de facto relationship from prior to December 2014.

27. The names of the sponsor’s parent’s declared on the visa application are different to the names of the applicant’s parents as detailed on his birth certificate contained on the Department’s file. The Tribunal is satisfied that the applicant and the sponsor are not related by family.

28. The Tribunal finds that the applicant and sponsor have a mutual commitment to a shared life to the exclusion of all others and their relationship is genuine and continuing. They live together and are not related by family.

29. 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.

30. The applicant meets cl.820.211(2)(a).

31. The Department’s file does not contain a copy of the sponsor form however the delegate’s decision record’s that the sponsor lodged a sponsorship and support of the application. There is no evidence that the sponsor ship has been withdrawn. The delegate’s decision record indicates that the applicant lodged a valid application for the Partner visa on the basis of his relationship with the sponsor. The Tribunal finds the applicant was the holder of a substantive visa when he made his application for the Partner visa. Therefore the applicant meets cl.820.211(2)(c) and cl.820.211(2)(d).

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

    Are the additional criteria for a de facto relationship met?

33. 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.

34. 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.

35. 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.

36. Based on the preponderance of evidence provided to the Department and to the Tribunal the Tribunal finds, for the reasons outlined above, that the applicant and the sponsor have been in a de facto relationship since at least December 2014.

37. Accordingly, 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.

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

39. 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

40. 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 of Schedule 2 to the Regulations]

    ·r.2.03A

    P. Maishman
    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).