Su (Migration)

[2021] AATA 4701

Su (Migration) [2021] AATA 4701 (17 September 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Xufeng Su

CASE NUMBER:  1914475

HOME AFFAIRS REFERENCE:               BCC2017/3808838

MEMBER:Rosa Gagliardi

DATE:17 September 2021

PLACE OF DECISION:  Australian Capital Territory

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(a) of Schedule 2 to the Regulations; and

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

·reg 2.03A.

Statement made on 17 September 2021 at 3:06pm

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – genuine de facto relationship – financial aspects – nature of the household – social aspects – nature of the commitment – 12-month requirement – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5CB, 65
Migration Regulations 1994 (Cth), rr 1.09A, 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 applied for the visa on 17 October 2017 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 (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 because he/she was not satisfied that the applicant and the sponsor were in a genuine and continuing de facto partnership.

4. The applicant appeared before the Tribunal on 25 August 2021 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Tak Piu Cheng, who is the applicant's partner and sponsor.

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

   Background

7. The applicant and sponsor first met on 5 March 2016.  According to the evidence submitted they entered into a committed de facto partnership on 28 April 2016 and the applicant moved into the sponsor’s residence to begin cohabitating as a couple on that date.  This Partner visa application was lodged on 17 October 2017. 

8. On 10 October 2018 the applicant notified the Department of a change in his circumstances, being that he had accepted a job offer in Sydney, initially on his own for two weeks, after which time the sponsor would join him.  On 25 August 2018 the parties moved into a common address in Sydney in Greenwich.  The lease on the property they were sharing was renewed on 31 July 2019.  In a statement to the Tribunal the applicant has stated how they attempted to make their work lives fit in with their relationship and how the sponsor travelled to Canberra on some days during this period:

   But he (the sponsor) could not find a job he wanted in Sydney. Thus, he travels to Canberra for work. We spent around 5 days together per week since then. From Monday to Wednesday we both stay in our Sydney home. On Wednesday, he travels to Canberra for work. On Friday after I finish my work, I travel to Canberra to spend the weekend with Tak. On Sunday night we would travel back to Sydney together. This is our routine most of the time. In July 2020, I changed to a casual job in Kirinari community services. Since my working days are not stable, sometimes I went to Canberra1-2 days earlier or backed to Sydney 1-2 days earlier.

9. They then entered into a new lease agreement for a property in Concord on 26 October 2019, after which, according to the applicant’s statement:

   In late January 2021, we moved back to Canberra due to Covid, our new business, my online study and casual work. I travel to Sydney to work every week, I generally spend less than 3 days in Sydney every week.

   Whether the parties are in a spouse or de facto relationship

10. 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?

11. '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).

12. 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 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.

    Financial aspects of the relationship

13. The parties have argued that they share their everyday and other expenses.  They have provided joint bank account statements which reflect their expenses for groceries, rent, utility bills, the applicant’s tuition fees, vehicle expenses, and phone bills, for example. 

    The applicant wishes to pursue his studies in psychology and the sponsor has not always had regular employment, nonetheless, the Tribunal is satisfied that the sponsor has been living a frugal life,  up until recently mostly as a kitchen hand, to be able to support the applicant in his aspirations to complete his degree and to ultimately work in his chosen field.  Evidence has been submitted regarding the relevant tuition fee payment by the sponsor.  The Tribunal places significant weight on this commitment by the sponsor to assist the applicant realise his future goals.

14. The Tribunal has sighted evidence of a car the parties own jointly as the applicant is listed as “the other operator” as indicated by the name on the certificate of registration. The parties have also put forward evidence of joint car insurance from AAMI as further evidence of joint ownership of their car.  The Tribunal understands that the parties have now purchased an additional car.

15. Evidence has also been submitted of the sponsor having nominated the applicant as the sole beneficiary of his superannuation account.  While the Tribunal places some weight on this evidence in the parties’ favour, it is, however, limited because such arrangements can be easily changed.

16. In short, the parties at the time of review have submitted a good deal of persuasive material regarding their joint financial arrangements which the delegate did not have the benefit of when making their decision.

    The nature of the household

17. The Tribunal has sighted evidence that the applicant and sponsor have paid for utility bills from their joint account and have highlighted the relevant transactions.  The gas and internet bills for the Greenwich property were included as were the weekly rent payments as evidenced by the lease agreements dated 25 August 2018 and 31 July 2019.   The Tribunal accepts that the parties continued to live together in a de facto partnership in Concord NSW as illustrated by the residential lease agreement dated October 2019, and bond payment dated 1st November 2019.  The Tribunal has had regard to the material indicating that after moving into the Concord address the parties continued to receive utilities and other joint household commitments in both names. 

18. In his statement to the Tribunal the applicant wrote:

    Tak will do most housework while I am busy. I will do most housework when Tak is busy. Furthermore, we have provided rental contracts and utility bills in Sydney. Additionally, our previous landlord Quang Ha has done a statutory declaration (form 888) for my partner visa application. Quang Ha mentioned clearly that we inspected his studio, moved our furniture to his studio and always paid rent on time. Moreover, rent payment records for Greenwich and Concord can be found in our joint bank account statements. All these can be evidence to prove that we have a genuine and continuing relationship.

19. The applicant previously submitted documentation to the Department evidencing an airbnb booking confirmation for two nights stay in Hunters Hill, under the name of ‘Daniel Gao’, which raised concerns for the Department.  The applicant has explained that ‘Daniel’ is the applicant’s English name and ‘Gao’ is the applicant’s mother’s maiden name.  To support this contention the applicant has submitted a copy of his mother’s passport bio data page and the Tribunal accepts that the evidence submitted referred to joint travel with the sponsor.

20. The Tribunal is satisfied from the evidence in terms of the documentation and the evidence submitted by third parties that the applicant and sponsor, despite living separately for some periods, are not living separately and apart on a permanent basis and that their household arrangements have been consistent with two persons in a genuine and de facto partnership.  It is not unusual that couples may have had to spend time apart due to work commitments interstate or for other reasons beyond their control, but this, particularly in the case of the parties, does not detract from an ongoing and genuine commitment to one another.  This is particularly so, as the sponsor has made a conscious decision to support the applicant in his studies and work in the disability sector.

    Social aspects of the relationship

21. Since the Departmental refusal the parties have provided additional statutory declarations
    - 3 from common friends and from their landlord in Greenwich. Another is from their neighbours in Canberra.

22. Realistically, the parties have stated that their families in China were not aware of the nature of their relationship given societal attitudes towards homosexuality.  Nonetheless, at hearing they stated that they wanted to be able to travel overseas to advise them in person prior to their marriage.  Nonetheless, the parties stated at hearing that their siblings were aware of their relationship and were supportive.  A letter from the sponsor’s brother in Hong Kong has been provided stating he is aware that the parties have been in a genuine and continuing de facto partnership since April 2016 and that they want to visit overseas when they can.  The sponsor’s brother has also testified that he speaks to the couple every few months and that the parties will marry in the future when they are in a financial position to do so. 

23. The applicant’s twin brother has also submitted a statement dated 28 August 2021, demonstrating awareness of the relationship and advising he speaks to both the applicant and sponsor regularly.  The applicant’s twin attests to the parties’ care for one another and their plans to marry and travel in the future.  The applicant’s brother also indicates he wishes to attend the wedding of the parties in Australia.

24. Significantly, unprompted, the sponsor has also submitted evidence of a tax return in which he names the applicant as his spouse.  The Tribunal places weight on this evidence which demonstrates the applicant is being recognised and reflected as the spouse of the sponsor in official documentation.

25. The Tribunal is satisfied from the evidence that the parties have been known for a lengthy period as being in a genuine and continuing spousal relationship among their circle of friends and the wider community.  The fact the parties have been reticent about their relationship to their parents is not something that the Tribunal views adversely given the parties want to reveal the nature of their relationship to them face to face.

    The nature of the persons’ commitment to each other

26. The evidence illustrates that the parties have shared a life as a de facto couple now for over 5 years and that their commitment has been long-standing.  The Tribunal is satisfied that the parties provide one another with companionship and emotional support.  At hearing the sponsor explained that the applicant was playing an important part in ensuring the sponsor maintained a sense of well-being by eating healthily and taking care of his health generally.  In his statement to the Tribunal the applicant wrote of the sponsor:

    Tak has made great effort to support my learning, he helps me with housework when I am busy, he also helps me with my tuition. I dream to become a psychologist and help others. Tak is the most important people in my career development. I always help Tak to have a healthier life by eating more fruits, walking more etc.

27. The Tribunal is satisfied that the parties see their relationship as long-term and that it is genuine and continuing and that they have a mutual commitment to a shared life to the exclusion of others.  The Tribunal is also satisfied that the parties are not related by family.

28. At hearing the parties stated that if it was necessary, they were prepared to go and register their relationship but that their ultimate goal was to marry.  The Tribunal would not at this stage have placed much weight on any such registration, however, as it is not a difficult process to go through and the Tribunal does not consider that such registration of a relationship of itself, necessarily points to the relationship being genuine and continuing.

    Conclusion

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 at the time of this decision.

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

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

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). 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.

33. 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. The Tribunal is satisfied that from when the parties started living together in April 2016 until the time of application in October 2017 the parties had been in a de facto relationship for more than 12 months. 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.  

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

35. 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

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)(a) of Schedule 2 to the Regulations; and

    ·cl 820.221 of Schedule 2 to the Regulations; and

    ·reg 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).