Singh (Migration)

[2022] AATA 3788

Singh (Migration) [2022] AATA 3788 (14 September 2022)

Corrigendum

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Amrinder Singh

REPRESENTATIVE:  Ms Michele Clayton (MARN: 0957773)

CASE NUMBER:  1819251

HOME AFFAIRS REFERENCE(S):          BCC2017/375126

MEMBER:Russell Matheson

DATE OF DECISION:  14 September 2022

DATE CORRIGENDUM

SIGNED:10 November 2022

PLACE OF DECISION:  Sydney

AMENDMENT:  The following corrections are made to the decision:

Paragraph 52 of the decision record states:

52. The Tribunal accepts that they were in a de facto relationship at the time of the application. The Tribunal accepts the parties’ evidence that they formed a committed de facto relationship in May 2013. The Tribunal accepts that the parties were in a lawful de facto relationship because they provided a copy of a New South Wales relationship certificate dated 5 December 2015. The Tribunal is satisfied the relationship has been registered under the law in the state of New South Wales. They were both at least 18 years of age when the application was made.

Paragraph 52 is amended to read:

52. The Tribunal accepts that they were in a de facto relationship at the time of the application. The Tribunal accepts the parties’ evidence that they formed a committed de facto relationship in January 2017. The Tribunal accepts that the parties were in a lawful de facto relationship because they provided a copy of a New South Wales relationship certificate dated 21 January 2017. The Tribunal is satisfied the relationship has been registered under the law in the state of New South Wales. They were both at least 18 years of age when the application was made.

Russell Matheson
Member

Statement made on 10 November 2022 at 10:56am

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Amrinder Singh

REPRESENTATIVE:  Ms Michele Clayton (MARN: 0957773)

CASE NUMBER:  1819251

HOME AFFAIRS REFERENCE(S):          BCC2017/375126

MEMBER:Russell Matheson

DATE:14 September 2022

PLACE OF DECISION:  Sydney

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)(a) of Schedule 2 to the Regulations;

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

·reg 2.03A

Statement made on 14 September 2022 at 6:17pm

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – de facto partner for 12 months before application made and at time of review decision – relationship registered soon after meeting and application made soon after that – significant additional documentary evidence and detailed, consistent and credible oral evidence – financial, household and social aspects of relationship and nature of commitment – supporting statements from friends and sponsor’s children – 12-month requirement does not apply if relationship registered – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5CB(2), 65
Migration Regulations 1994 (Cth), r 1.09A(3), Schedule 2, cl 820.211(2)(a), 820.221(1)
Acts Interpretation (Registered Relationships) Regulations 2008 (Cth), r 2.03A(5)

CASE
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 is a male national of India born in April 1990. He applied for the visa on 28 January 2017 based on 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 (Cth) (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)(a) because the delegate was not satisfied the applicant was the de facto partner of the sponsor. The applicant seeks review of the delegate’s decision.

4. The Tribunal exercised its discretion to hold the hearing by videoconference. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by videoconference, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by videoconference. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

5. The applicant appeared before the Tribunal on 13 September 2022 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor Ms Wendy Clark, who is the applicant's Partner. The Tribunal hearing was conducted with the assistance of an interpreter in the Hindi and English languages.

6. The applicant was represented in relation to the review. The representative attended the Tribunal hearing.

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

   ISSUES AND LAW

8. There is a two-stage process for Partner visas. An applicant must first hold a provisional visa, enabling them to remain in Australia on a temporary basis, prior to the grant of a permanent visa. The grant of a permanent visa would generally depend on whether the relationship has continued for a period of at least two years. The issues in the present case are whether the applicant was at the time of the visa application the de facto partner of the sponsor, whether he was in a de facto relationship with her for 12 months prior to the date of the visa application and whether he remains so at the time of decision.

9. Furthermore, the applicant can provide evidence that the relationship is registered under the Relationships Register Act, as a kind of relationship prescribed in the Acts Interpretation (Registered Relationships) Regulations 2008: reg 2.03A(5). Accordingly, the 12-month requirement would not apply.

   Background

10. The applicant is a national of India who first arrived in Australia on 12 February 2016 on a FA-600 visitor visa.  On 4 October 2016, the applicant and the sponsor connected over a dating website called Tango.  On 23 November 2016, the applicant and the sponsor met for the first time in person and by 21 January 2017 they had registered their relationship.

11. Due to the speed in which the applicant and sponsor registered their relationship, the delegate of the Minister was not convinced that the parties were in a genuine and continuing relationship.  Since then, there has been a significant amount of additional evidence provided to the Tribunal.

    Consideration of claims and evidence

12. The issue in the present case is whether the applicant is the de facto partner of the sponsor as defined in s.5CB of the Act and r 1.09A of the Regulations at the time of application and decision.

13. The Tribunal has before it the Department of Home Affairs (the Department) file relating to the applicant; its own file; and a copy of the Department’s decision provided by the applicant to the Tribunal.

14. The evidence the parties provided at the Tribunal hearing is recorded throughout this decision record.

    Whether the parties are in a spouse or de facto relationship

15. 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?

16. '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).

17. In forming an opinion whether they are in a de facto relationship consideration must be given to all 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.

18. The Tribunal has considered the documentary and photographic evidence submitted with the application and the significant additional documentary evidence that has been submitted to the Tribunal. The Tribunal has also had the benefit of the oral evidence of the applicant and sponsor. The Tribunal found the applicant and sponsor to be credible and genuine witnesses who presented detailed and consistent evidence during the hearing.

19. The Tribunal acknowledges the delegate’s concerns set out in the primary decision record. The Tribunal discussed these with the applicant during the hearing and the Tribunal is satisfied that the explanations offered are genuine and plausible.

    Financial aspects

20. The Tribunal has considered the financial aspects of the relationship including any joint ownership of real estate or major assets, any joint liabilities, the extent of any pooling or sharing of financial resources, especially in relation to major financial commitments, whether any person in the relationship owes any legal obligation in respect of the other, and the basis of any sharing of daily household expenses.

21. The applicant and sponsor provided documentary and oral evidence that they operate a joint account (Choice Basic) with Westpac Bank that was opened December 2016. The parties stated that this account is utilised for savings, day-to-day living expenses, household bills, utility bills, mobile phone bills, car registration and insurance. The parties provided bank statements corroborating their evidence over a significant period. The bank statements also indicate that the applicant’s wages and the sponsor’s Centrelink payments are deposited into the joint account. The parties also produced debit cards #9493 and #0451 linked to the joint account and their usage is shown in the statements provided. They also provided evidence of holding a joint National Australia Bank (NAB) term deposit account with significant savings.

22. The applicant provided evidence that he has made the sponsor a 100% beneficiary (binding) of his Australian Super account. The sponsor provide evidence of making the applicant a 100% beneficiary of her NRMA life insurance.

23. The parties provided detailed information in relation to their past and current employment and income earned by the parties, household bills and the parties’ financial resources. The parties furthermore discussed their future financial plans and provided a significant amount of additional documentary evidence to the Tribunal to substantiate their claims. The parties stated that they are saving to purchase their own house and provided evidence of substantial savings supporting their claim.

24. There is no evidence before the Tribunal that the parties have any joint ownership of real estate, major assets, joint liabilities or that any one person in the relationship owes any legal obligation in respect of the other. The applicant has provided a significant amount of additional information to the Tribunal regarding the financial aspects of the parties’ relationship in relation to pooling and sharing of financial resources and sharing of daily living expenses. The Tribunal accepts that the parties are prepared to share their financial resources and any ongoing and future financial responsibilities.

25. The Tribunal places positive weight on the financial aspects of the relationship.

    Nature of the household

26. The Tribunal has considered the nature of the household, including any joint responsibility for the care and support of children, if any, the living arrangements of the parties and the sharing of the responsibility for housework.

27. The parties have provided a significant amount of additional correspondence addressed to them individually and jointly at their Goolgowi address since declaring they were in a de facto relationship.

28. The applicant and sponsor, in their written submissions gave detailed and consistent evidence about their living arrangements and the Tribunal found their evidence persuasive, genuine and credible. The Tribunal is satisfied that the parties have established a household living together at Goolgowi, New South Wales. The parties provided evidence of sharing the household duties and responsibilities and discussed their individual household tasks in detail.

29. They have provided consistent evidence of their living arrangements and details about their daily lives, social activities, and personal life. The parties provided strong evidence of them sharing joint responsibility for raising the sponsors three sons from a previous relationship. The sponsor gave evidence and spoke openly of the influence the applicant has had upon her and her sons in assisting them overcome and deal with the trauma of being victims of family violence during her previous relationship. The Tribunal places significant weight on the comfort and support the applicant has provided to the sponsor and her sons.

30. The parties provided significant documentary evidence and correspondence addressed to their common address in individual and joint names indicating that they have lived together for a significant period at their current address. The parties provided evidence that includes but is not limited to copies of their utility bills, telephone bills, bank statements, car registration, insurance policies, gym membership, school letters and other correspondence addressed to them individually and in joint names

31. Overall, the Tribunal accepts that the parties live together and that they have established a joint household. The Tribunal is satisfied that they share joint responsibility for the care and support of the sponsor’s three sons, and that they share the responsibility for the housework.

    Social aspects

32. The Tribunal considered the social aspects of the relationship, including whether the parties represent themselves to other people as being in a relationship with each other, the opinion of friends and acquaintances about the nature of the relationship, and any basis on which the parties plan and undertake social activities.

33. The parties provided numerous Form 888 statements from family and friends who appear to socialise with each other. They also provided letters from the sponsor’s sons attesting to the genuineness of the relationship. The Tribunal accepts that the third-party Form 888 statements provided by the parties add weight to the genuineness of the relationship, Nevertheless, the Tribunal also considered these statements somewhat generic and found that they provided limited insight into the inception and development of the parties’ relationship over time. The parties also provided limited photographic evidence of their social activities. The photos that were submitted showed the parties in each other’s company and the parties with a select group of family and friends and the sponsors children in different social settings. The parties gave evidence that they rarely dine out although they regularly have coffee with friends at a local cafe and that they prefer staying at home in a family environment.

34. The Tribunal accepts that the relationship is socially recognised by family and friends and that the parties represent themselves to other people as being in a de facto relationship. The Tribunal accepts that the parties plan and undertake limited joint social activities together. There are statements from third parties who attest to the belief that the relationship is a genuine and continuing one.

35. The Tribunal places little weight on the social aspects of the relationship.

    Commitment

36. The Tribunal has considered the nature of the parties’ 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 they provide each other, and whether the parties view the relationship as a long-term one.

37. On 4 October 2016, the applicant and the sponsor connected over a dating website called Tango.  On 23 November 2016, the applicant and the sponsor met for the first time in person. On 21 January 2017, the parties registered their relationship (No:150688/2017) under the Relationship Register Act,2010. The Tribunal accepts the parties registered their de facto relationship. The Tribunal accepts that the parties have been in a de facto relationship for over five years.

38. The parties described the immense commitment and empathy they have for each other and described how they have worked together to face and address any problems they have had together. The parties spoke openly about the sponsors previous relationship that involved family violence and the impact it has had upon the family. The sponsor gave evidence of the care comfort, support and the calming influence the applicant has had on her and her children when dealing with PTSD. They stated that they have both contributed to all aspects of their life together and they spend all their time together, they confide in each other and rely on each other for emotional support and guidance when dealing with traumatic events such as the recent death of the applicant’s mother and the sponsor’s son being seriously injured in a motor vehicle accident.

39. They provided evidence of significant savings for a deposit on a home in their Westpac and NAB joint accounts. The parties stated that they speak regularly about their future plans, their financial security, and resources and believe their relationship is long term. The parties provided evidence of holding significant savings and stated that they will utilise those savings to purchase their own home in the future.

40. The Tribunal is satisfied that the parties see their relationship as a stable, mutually supportive, and long-term one. The Tribunal considers their evidence regarding their commitment to each other to be plausible, persuasive, and genuine.

41. The Tribunal notes that the applicant and the sponsor were able to articulate the reasons for their decision to form a relationship and spoke of their common interests, expectations, and future together.

42. The Tribunal is satisfied that the parties provide each other with a strong degree of companionship and emotional support that is commensurate with a couple having a commitment to a shared life together. The Tribunal is satisfied that the couple view their relationship as a long-term one.

    Findings

43. The Tribunal is satisfied that at the time of application the applicant and sponsor had a mutual commitment to a shared life as de facto partners to the exclusion of all others, that their relationship is genuine and continuing and that they do not live separately and apart on a permanent basis. The Tribunal has no evidence that the parties are related by family. Therefore, the applicant meets the requirements of s.5CB(2)(a)-(d) of the Act.

44. The Tribunal is satisfied, having regard to the totality of the circumstances, that the applicant and the sponsor have a mutual commitment to a shared life to the exclusion of all others. The Tribunal is satisfied their relationship is a genuine and continuing relationship. The Tribunal is satisfied they are living together. The Tribunal is satisfied after considering all the circumstances of the relationship, that the parties were in a de facto relationship at the time of application and time of decision (r.1.09A).

1. Based on the above the Tribunal is satisfied that the requirements of s.5CB(2)(a)-(d) of the Act are met at the time of application. The Tribunal further finds that at the time of decision the applicant is in a de facto relationship with the sponsor within the meaning of s.5F(2)(a)-(d) of the Act and meets the requirements of cl.820.221(1) of Schedule 2 to the Regulations. Therefore, the applicant meets cl.820.211.

2. The Tribunal is satisfied that the sponsor is not prohibited from being a sponsoring partner and continues to sponsor the applicant. The Tribunal is satisfied that the sponsor, at the time of the visa application and decision, was an Australian citizen who had turned 18.

3. Furthermore, the Tribunal finds at the time of application the applicant meets the requirements of cl.820.211(2)(a) of Schedule 2 to the Regulations.

4. Based on the above the Tribunal is satisfied that the requirements of s.5CB(2) were met at the time the visa application was made.

   Are the additional criteria for a de facto relationship met?

5. 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, the applicant and the sponsor were at least 18 years old.

6. 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). 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.

7. The applicant has provided relationship certificate number 1150688/2017 dated 21 January 2017 as evidence that the relationship is registered under the Relationship Register Act, 2010, 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.

8. The Tribunal accepts that they were in a de facto relationship at the time of the application. The Tribunal accepts the parties’ evidence that they formed a committed de facto relationship in May 2013. The Tribunal accepts that the parties were in a lawful de facto relationship because they provided a copy of a New South Wales relationship certificate dated 5 December 2015. The Tribunal is satisfied the relationship has been registered under the law in the state of New South Wales. They were both at least 18 years of age when the application was made.

9. 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

10. 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)(a) of Schedule 2 to the Regulations;

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

    ·r.2.03A of the Regulations.

    Russell Matheson
    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).