Taylor (Migration)

[2017] AATA 2603

Taylor (Migration) [2017] AATA 2603 (4 July 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Lee Elliot Taylor

CASE NUMBER:  1616630

DIBP REFERENCE(S):  BCC2015/1637781

MEMBER:Nicola Findson

DATE:4 July 2017

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 (Temporary)) visa:

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

·cl.820.221 of Schedule 2 to the Regulations

·r.2.03A

Statement made on 04 July 2017 at 3:00pm

CATCHWORDS
Migration – Partner (Temporary) (Class UK) visa – Subclass 820 ((Partner (Temporary))  – Ongoing de facto relationship – Shared living arrangements – Joint financial accounts – Mutual commitment to the relationship – Emotional support and companionship

LEGISLATION
Migration Act 1958 ss 5CB, 5CB(2), 65, 360(2)(a)
Migration Regulations 1994 rr 1.09A(3), 2.03A, Schedule 2 cls 820. 211(2), 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 4 October 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 9 June 2015 on the basis of his relationship with his 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.820.211(2)(a) because the delegate was not satisfied that the evidence before him was sufficient to demonstrate that the parties were in a genuine and continuing de facto relationship.

4. The Tribunal was provided with considerable additional information to demonstrate that the parties are in a de facto relationship that was not before the delegate.

5. 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.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The applicant, who is a 42 year old Canadian man, and the sponsor, who is a 28 year old Australian woman, met in July 2013 while working together on a cruise ship. Their relationship developed and the parties committed to a relationship with one another and commenced living together in October 2013. The parties became engaged in May 2014 and have plans to marry in October 2017.

8. The issues in the present case include whether the parties were, at the time of application, in an ongoing de facto relationship; whether they had been in that relationship for at least 12 months prior to lodging the application; and finally, whether the parties are in a genuine and continuing de facto relationship at the time of decision.

   Whether the parties are in a spouse or de facto relationship

9. 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?

10. ‘De facto partner’ is defined in s.5CB of the Act and 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).

11. 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.

12. The Tribunal has assessed the circumstances of the relationship, as it existed in the 12 months prior to the date of application, at the time of application and at the time of the Tribunal’s decision.

    Financial aspects of the relationship

13. The Tribunal considered the evidence in relation to the financial aspects of the parties’ relationship including joint ownership of assets, the extent of pooling of financial resources, and any sharing of day-to-day household expenses.

14. The evidence before the Tribunal is that the parties have worked together on cruise ships from the Norwegian Cruise Line and the Holland America Line since July 2013.  Since February 2014, the parties have spent periods of time together in Australia between their work contracts.  During these times they have lived together at the sponsor’s mother’s address in Cooloongup, Western Australia as well as at a unit owned by the sponsor in Rockingham, Western Australia.

15. Based on the evidence before it, the Tribunal is satisfied that the parties equally contribute to their day to day living expenses, utility bills, and the sponsor’s home loan. 

16. In October 2014, the parties set up a joint bank account.  A copy of a list of transactions for January to May 2017 was provided to the Tribunal.  There are transfers in to this account and payment of various expenditures as well as withdrawals.  The applicant and sponsor do continue to maintain their own individual bank accounts, however, they have arranged the necessary authorities to access each other’s accounts and statements for the period July 2014 to September 2016 show money transfers between the parties.  Since June 2016, the evidence before the Tribunal reflects that the salaries of both the applicant and sponsor from Holland America Line are transferred into the bank account held in the sponsor’s name. The evidence before the Tribunal also indicates the parties currently share two credit card accounts. 

17. The parties indicate they have both contributed towards the costs of their wedding celebration in Hawaii in October 2017.  They have engaged a wedding planner to assist them and have paid money to secure the ceremony and reception venue, celebrant, caterer and photographer.  They have also booked and paid for their flights and accommodation.

18. There is evidence before the Tribunal that the parties jointly purchased a car in August 2014.

19. The Tribunal also observes that the evidence before it indicates that in September 2016, the parties made a joint offer to purchase property.  However, this transaction did not eventuate because they were unable to obtain bank finance. 

20. The Tribunal is satisfied on the evidence provided that the applicant and sponsor pool their financial resources and share day to day expenses.  The Tribunal is satisfied that this is an indicator of a genuine and continuing de facto relationship.

    Nature of the household

21. The Tribunal considered the evidence in relation to the nature of the household including the parties’ living arrangements and any sharing of housework.

22. The parties claim their de facto relationship commenced in October 2013.  They claim to have lived together on cruise ships and on land since that time.  Completed Norwegian Cruise Line forms provided to the Tribunal indicate that from early on in their relationship the parties were identified and accommodated as a couple, which meant that they were assigned work contracts and cabin accommodation together.  Evidence before the Tribunal also indicates that the parties have lived together in between their work contracts either at the sponsor’s mother’s address in Cooloongup; in a property owned by the sponsor in Rockingham; or in hotels abroad. 

23. The evidence provided to the Tribunal indicates that the parties share household duties, with the applicant doing a greater share of the cooking while the applicant does more of the cleaning.

24. The evidence before the Tribunal also reflects that in December 2016, the parties adopted a kitten to care for together. 

25. The Tribunal is satisfied that the nature of the household in this relationship is indicative of a de facto relationship between the parties. 

    Social aspects of the relationship

26. The Tribunal considered the evidence as to whether the persons represent themselves to other people as a couple, the opinion of the persons’ friends and acquaintances about the nature of the relationship and any basis on which the persons plan and undertake joint social activities.

27. The Tribunal has had regard to the extensive evidence provided to it, including written statements made by the applicant, the sponsor, the parties’ family and friends, as well as photos. That evidence indicates that from the time they commenced their relationship the parties’ have held themselves out as a couple and that continues.  The Tribunal finds that the parties have provided statutory declarations and statements from many family members and friends attesting that the relationship between the parties is a genuine, caring and loving one.  The statements indicate that the parties held themselves out as a couple to their family and friends from the beginning of their relationship and that they attended social activities as a couple.  The evidence indicates that the parties have spent a lot of time with the sponsor’s family since February 2014.  The evidence also indicates that the parties have spent time in Canada with the applicant’s family.  The Tribunal regards this aspect as significant and the evidence is strongly supportive of the claimed relationship.

28. Based on the evidence, the Tribunal is satisfied that parties represent themselves to other people, including family and friends, as being in a de facto relationship with each other.

    The nature of the persons’ commitment to each other

29. The Tribunal considered the evidence in relation to the nature of persons’ commitment to each other including the duration of the relationship, the length of time they have lived together, the degree of companionship and emotional support they draw from each other and whether they see the relationship as long-term.

30. The Tribunal finds that the parties have been in a de facto relationship since October 2013. The Tribunal finds that the parties have been in a relationship and have lived and worked together for almost 4 years.  

31. The evidence before the Tribunal is that the parties have a solid relationship and that their plans for the future are the same. The evidence before the Tribunal indicates that the parties have made arrangements to marry in front of family and friends in October 2017.  They also have plans to buy a home together, start a family and set up their own business. The Tribunal finds no evidence to doubt the parties’ claims in respect of these matters and finds indeed that the parties are genuine in holding these plans for their future.  It is clear from their evidence that the parties have enjoyed their time together and are looking forward to their future. 

32. On the evidence before it, the Tribunal finds that the parties are committed to each other.  From their evidence, and from the evidence of the declarants who have provided sworn statements attesting to the relationship, the Tribunal finds that the parties derive emotional support and companionship from each other – that they have done so since October 2013 and that they continue to do so.

33. On all the evidence before it, the Tribunal finds that the parties have a mutual commitment to the relationship, draw emotional support and companionship from it and they view the relationship as a long term and continuing one.

34. On the basis of the above the Tribunal is satisfied that the requirements of s.5CB(2) are met at the time of application and decision.

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

    Are the additional criteria for a de facto relationship met?

36. Persons claiming to be in a de facto relationship for a partner visa must also meet the additional criteria in r.2.03A. These are: that the couple are both at least 18 years of age; and with limited exceptions, that the applicant has been in the de facto relationship for at least the period of 12 months ending immediately before the date of the application, unless he or she can establish compelling and compassionate circumstances for the grant of the visa. The requirement that the relationship existed for 12 months prior to the application does not apply in certain circumstances where the sponsor is or was a humanitarian visa holder, or for applications made on or after 9 November 2009, where the de facto relationship has been registered under a relevant State or Territory law: r.2.03(4), (5).

37. The Tribunal accepts on the evidence before it that the applicant and the sponsor were over the age of 18 at the time of application. Therefore the applicant satisfies r.2.03A(2).

38. The documentation submitted, which is now extensive, illustrates that the parties met in July 2013 and began living together in October 2013.  The Tribunal has decided that the relationship is genuine and continuing and the parties live together and do not live separately and apart on a permanent basis.  The Tribunal also accepts on the evidence before it that the applicant committed to an exclusive relationship with the sponsor more than 12 months prior to the date of the visa application.

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

40. 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

41. 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

    Nicola Findson
    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).