Tasha (Migration)

[2018] AATA 2425

Tasha (Migration) [2018] AATA 2425 (25 May 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss I Gusti Agung Ayu Tasha

CASE NUMBER:  1602787

DIBP REFERENCE(S):  BCC2014/3222443

MEMBER:Justin Owen

DATE:25 May 2018

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 (Temporary)) 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 25 May 2018 at 12:54pm

CATCHWORDS
Migration – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner (Temporary)) – Whether the parties were in a genuine de facto relationship for the 12 months preceding the date of application – Where relationship has been ongoing for a significant period of time – Substantial quantity of evidence provided that was not before the delegate – Decision remitted with direction

LEGISLATION
Migration Act 1958 (Cth), ss 5CB, 65
Migration Regulations 1994 (Cth), rr 1.09A(3), 2.03A, Schedule 2, cls 820.211(2)(a), 820.221

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision of a delegate of the Minister for Immigration on 17 February 2016 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 27 November 2014 on the basis of her relationship with her sponsor. At that time, Class UK contained only one subclass: Subclass 820 (Partner (Temporary)). 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.820.221(2) because the delegate was not satisfied that the applicant had been in a de facto relationship for 12 months prior to the date of application.  As the applicant had not provided any materials addressing the waiver of the 12 month de facto requirement, the delegate was not satisfied that compelling reasons existed to waive the requirement. 

4. The applicant appeared before the Tribunal on 16 May 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor Mr Matthew Woodley and the sponsor’s mother Mrs Lorna Woodley.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in the present case the issue as whether the parties are in a spousal relationship as defined by cl.820.211(2)(a) and cl.820.221. The further issue is whether they were in a de facto relationship 12 months prior to the lodgement of the application under review as required under r.2.03A

7. The Tribunal has taken into consideration all the evidence in the Departmental file BCC2014/3222443 folio numbered 1-162, the Tribunal’s file 1602787 folio numbered 1-226 and the oral evidence given by both parties and the witness at the Tribunal’s hearing. 

   Whether the parties are in a spouse or de facto relationship

8. 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?

9. As the parties are not married to each other under a marriage that is valid for the purposes of the Act, they cannot satisfy an essential requirement of a spouse relationship, but may meet the criteria on the basis of being in a de facto relationship as defined in s.5CB of the Act. 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).

10. 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.

11. The Tribunal has had regard to the parties’ financial relationship; the nature of their household; the social aspects of the relationship; and the nature of their commitment to each other.

12. Based on the evidence of the applicant and her sponsor, the Tribunal is satisfied that the facts of the case are as follows: the applicant arrived in Australia on a Student visa in October 2010.  She met the sponsor whilst both were studying together at university in February 2012.  A relationship developed and in December 2012 they claimed to be in a de facto relationship.  After spending some months residing sporadically together at the sponsor’s family home or the applicant’s room, in May 2013 the sponsor moved in to the applicant’s room at s share house with other university students in Maylands, Western Australia. In June 2014 the applicant and sponsor moved with a mutual friend to a new property in Como, Western Australia.  In late February 2015 the applicant and sponsor moved to Applecross, Western Australia before the applicant moved firstly to the sponsor’s aunt’s house, then to a property in Wandina in April 2015.  This occurred after the applicant successfully completed a Bachelor of Journalism/Broadcasting and obtained employment in TV journalism in Geraldton, Western Australia with GWN-7.  In July 2015 the sponsor moved to Geraldton after securing employment with the local newspaper. They resided in Geraldton together until January 2017 when the applicant moved to Melbourne in preparation for the commencement of her Master’s degree.  The sponsor arrived in Melbourne later that month after securing employment in journalism at a trade magazine in Melbourne.  In April 2017 they moved together to Richmond, Victoria where they continue to cohabitate today.   

13. The applicant and sponsor were candid, consistent and detailed in their oral evidence to the Tribunal concerning the development of their relationship well over half a decade ago and the journey they have taken together in the years since.  The Tribunal holds no doubts that the relationship is genuine and continuing and was in existence both at the time of application and at the time of decision. 

14. The parties discussed the early days of their relationship and provided a range of evidence that satisfies the Tribunal that the dates asserted by the applicant and sponsor as to the commencement of their de facto relationship are genuine.  The Tribunal notes that the parties travelled together to Brisbane for Christmas in the early days of the relationship in 2012 and have remained in constant and consistent contact since.  The Tribunal notes the extensive records of communication between the parties that have been provided by the applicant including detailed WhatsApp chat records that date from July 2013 and Facebook records of the parties clearly in a relationship from 2012 up until today.  These records cover all the years spanning the relationship and illustrate the couple together and with family and friends at various destinations across Australia, Asia and Europe.  The Tribunal notes that the delegate did not have access to material of this detail in making his decision.  The Tribunal has placed considerable weight on the volume and detail of the communication that has been submitted across the history of their relationship. 

15. The Tribunal was impressed with both the sponsor and applicant at hearing.  Both are very hard-working, motivated and driven individuals that are making a genuine contribution to Australia.  They were open in their evidence to the Tribunal as to the challenges their relationship can face from time to time.  They were also very honest concerning their love and devotion for each other.  The Tribunal notes that the parties became engaged in late 2017. 

16. The sponsor’s mother travelled to Melbourne from Perth to give evidence in person at the hearing.  The Tribunal found her oral evidence of genuine value.  It was honest, forthright and illuminating.  She spoke about meeting the applicant in December 2012 and how she knew this was a serious relationship.  She spoke about the numerous visits the applicant was making to the sponsor – who at that time was still residing with his mother in the family home – and how she quickly became a well-established part of the household.  In the Tribunal’s experience such a situation is common for university students in a developing relationship but with limited finances.  The sponsor’s mother discussed how the commute eventually led to the sponsor leaving home and moving in to the applicant’s room at her university share house in mid-2013.

17. In oral evidence the sponsor’s mother said that the applicant was an integral part of her family and had been now for many years.  She spoke about how in January 2014 the applicant’s family had invited her and the sponsor’s father to attend celebrations to mark the applicant’s graduation from university.  The Tribunal agrees that this marks the seriousness of the relationship that existed between the applicant and sponsor at that time and is of the view that it indicates the relationship was both well-established and recognised by the families of both the applicant and sponsor at this time.  The Tribunal notes that this is some ten months prior to the lodgement of the visa application under review.  The Tribunal also notes the sponsor’s mother’s evidence that, given the applicant’s family is offshore, she organised her 21^st birthday in August 2013.  The Tribunal notes that this was over a year prior to the lodgement of the visa application under review.  Having reviewed the evidence on the file and the oral evidence of the sponsor’s mother, the Tribunal is satisfied that this evidence attests to the genuine and continuing nature of the relationship not only at the time of application and decision, but also twelve months prior to the application being lodged.   

18. The Tribunal discussed with the applicant and sponsor the financial elements of their relationship.  The parties currently have a joint loan for the applicant’s impressive engagement ring.  They have had a joint bank account with the Commonwealth Bank since mid-2014 and their own accounts.  The applicant provided the Tribunal a detailed log of various transactions from their personal accounts that highlights how they shared their financial responsibilities in the 14 months leading up to the lodgement of the Partner visa application. (T1, Folio. 17-22).  The Tribunal notes that this is largely a time when both were university students facing financially challenging times.  In the context of the wider evidence provided by the parties in support of the genuine and continuing nature of the relationship, the Tribunal is prepared to accept this evidence. 

19. The parties were consistent and entirely spontaneous in the Tribunal’s questioning concerning the nature of their household; their plans for a family down the track; and how they share responsibility for housework.  They were entirely aware of each other’s friendship networks; families and health issues during the course of their relationship.  They attested to the stability and emotional support they provide each other.  They have declared each other as spouse in tax returns since 2013.                 

20. In addition to the parties’ oral evidence, the Tribunal has had regard to all the parties’ documentary evidence in relationship to their relationship, including their claimed financial relationship; the nature of their household; the social aspects of the relationship and the nature of their commitment to each other.  The parties have submitted a number of documents that speak to their circumstances at the time of application and since.  Some of these documents were not previously provided by the applicant to the Department.

21. The evidence on which the Tribunal was satisfied of the claimed circumstances of the parties’ relationship, in addition to their credible oral evidence at hearing, included voluminous bank statements both joint and individual since 2014; joint rental agreements with both parties on the lease commencing June 2014 and covering a range of addresses they claim to have resided with up until the present day; supporting telephone and utilities evidence; widespread evidence of communication across a range of mediums from 2013 until today; joint health insurance statements from September 2015; airline tickets and joint travel itineraries booked from October 2013 onwards; a receipt for the applicant’s engagement ring; a State of Victoria Relationship Certificate from March 2017; numerous photographs of the parties both in Australia and abroad with a wide range of family and friends from 2012 up until the present day; written personal statements of the applicant and sponsor; earlier statements from friends who attest to the nature of the parties relationship; wedding invitations received by the parties as a couple and mobile telephone records illustrating regular contact with each other.     

22. In view of the above, the Tribunal is satisfied by the parties’ oral evidence at the hearing that the applicant and sponsor have a sound knowledge of each other’s lives that is commensurate with a couple in a genuine and ongoing spousal relationship.  The Tribunal accepts on the evidence before it that they derive a significant degree of companionship and emotional support from each other and that they do see their relationship as long-term.  The Tribunal is satisfied there is long-term, broad-based public recognition of their spousal relationship.  The Tribunal finds that they are living together and have done so since mid-July 2013.  In respect of whether there is a mutual commitment to a shared life, the Tribunal is satisfied and accepts the oral evidence of the applicant and sponsor that they do.

23. 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.

24. Therefore the applicant meets cl.820.211 and cl.820.221.

    Are the additional criteria for a de facto relationship met?

25. 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.

26. 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.

27. 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 notes that the State of Western Australia is one of only two jurisdictions that do not afford parties the ability to register a de facto relationship.  The Tribunal is confident that the parties would have availed themselves of the ability to do so had they been residing in another State.  Nevertheless the Tribunal is satisfied on the evidence before it that the parties were in a de facto relationship for the twelve months prior to the lodgement of this visa application in November 2014.  The Tribunal agrees with the comments of the then Federal Member for Fremantle the Hon. Melissa Price MP who on 12 April 2016 (T1, Folio.80) pointed out to the Tribunal that during this critical period the parties were university students who were living a life common to many where they were financially challenged, sharing a room and not focused on collecting evidence to support their claim of partnership. The Tribunal sympathises with the dilemma the applicant and sponsor faced from this period.  The Tribunal has considered how their relationship today – and over the past five years – speaks to their relationship twelve months prior to the application.  The Tribunal notes that the parties have since the application was refused have provided a wide range of evidence of the close, consistent and ongoing communication that existed between them during this twelve month period.  On the evidence both oral and documentary they were certainly travelling together as a couple across Australia and internationally.  The sponsor’s mother has strongly attested to the cohabitation that existed both at the sponsor’s family home and the applicant’s share room during this twelve month period.  As discussed in paragraph 17, in January 2014 the applicant’s family invited the sponsor’s parents to attend celebrations to mark the applicant’s graduation from university and in August 2013 the sponsor’s mother organised the applicant’s 21^st birthday. In the Tribunal’s opinion this illustrates that the relationship between the applicant and sponsor was mature, developed and properly regarded as a de facto relationship twelve months prior to the lodgement of this visa application.  The Tribunal also notes that the parties had a confirmed written lease in both their names for the second half of the twelve month period.    

28. The Tribunal accepts the argument that the quantum of evidence for the twelve months prior to application is limited in comparison to the last five years because of their circumstances as full-time students.  The Tribunal is nevertheless satisfied with the corroborative evidence that has been submitted from this twelve month period  - as well as the oral evidence of the applicant, sponsor and the sponsor’s mother - and accepts there was an ongoing de facto relationship during this period.   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.

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

30. 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

31. 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 (Temporary)) visa:

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

    ·cl.820.221 of Schedule 2 to the Regulations

    ·r.2.03A

    Justin Owen
    Senior 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).