TIMSAH (Migration)

Case [2023] AATA 886

TIMSAH (Migration) [2023] AATA 886 (27 March 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Moataz TIMSAH

REPRESENTATIVE:  Mr Abu Siddque

CASE NUMBER:  1832936

HOME AFFAIRS REFERENCE(S):          BCC2017/3939464

MEMBER:Christine Kannis

DATE:27 March 2023

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)(a) of Schedule 2 to the Regulations

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

·reg 2.03A

·cl 820.211(2)(d)

Statement made on 27 March 2023 at 12:02pm

CATCHWORDS
MIGRATION –Partner (Temporary) (Class UK) visa – Subclass 820 – parties have pooled their financial resources and shared day-to-day financial responsibilities during the relationship – parties have lived at the same residential addresses since the time of application – de facto relationship existed for at least the 12-month period ending immediately before the date of the application – compelling reasons for not applying the Schedule 3 criteria – decision under review remitted   

LEGISLATION
Migration Act 1958, ss, 5F, 65, 359, 375
Migration Regulations 1994, r 2.03, Schedule 2, cls 820.211, 820.221

CASES
Babicci v MIMIA (2005) 141 FCR 285
MZYPZ v MIAC [2012] FCA 478
Waensila v MIBP [2016] FCAFC 32

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 25 October 2017 on the basis of his relationship with his sponsor, Ms Luisa Maria Escalante Gonzalez. 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 visa was refused because the delegate was not satisfied that the applicant’s relationship with the sponsor met the definition of a de facto relationship under the Act and therefore he did not satisfy cl 820.211(2)(a). The delegate referred to the applicant submitting information regarding compelling reasons for not applying Schedule 3 criteria. The delegate did not consider whether the applicant met the Schedule 3 criteria because of the decision that he did not meet cl 820.211(2)(a).

  4. A copy of the Decision Record was submitted to the Tribunal by the applicant for the purposes of the review.

  5. The applicant appeared before the Tribunal by MS Teams Video on 28 February 2023 to give evidence and present arguments. The Tribunal also received oral evidence by MS Teams Audio from the sponsor.

  6. The applicant was represented in relation to the review.

  7. For the following reasons, the Tribunal has concluded that…

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Details
AGLC
TIMSAH (Migration) [2023] AATA 886
Case
[2023] AATA 886
Decision Date

CaseChat Overview and Summary

This matter concerned an application for a Partner (Temporary) (Class UK) visa, Subclass 820, made by an applicant who claimed to be the de facto partner of an Australian citizen. The central dispute revolved around whether the applicant met the criteria for a de facto relationship as defined by the Migration Act 1994 and the Migration Regulations 1994, and consequently, whether they satisfied the Schedule 3 criteria for the visa. The decision was made by Christine Kannis, a member of the Tribunal.

The legal issues before the Tribunal were twofold: firstly, whether the applicant was in a de facto relationship with the sponsor as defined by section 5CB of the Act, and secondly, if so, whether the applicant met the Schedule 3 criteria for the visa. The definition of a de facto relationship under section 5CB(2) requires a mutual commitment to a shared life to the exclusion of all others, a genuine and continuing relationship, cohabitation or not living separately and apart on a permanent basis, and that the couple are not related by family. Regulation 1.09A(3) further mandates consideration of specific financial, household, social, and commitment aspects of the relationship.

The Tribunal considered extensive evidence, including statutory declarations and financial documents, which demonstrated that the parties had pooled their financial resources, shared day-to-day household expenses, and lived at the same residential addresses since the time of application. The applicant had commenced employment and was contributing to the joint account used for rent and other expenses. The Tribunal found that the parties had a mutual commitment to a shared life and that their relationship was genuine and continuing. Given the evidence presented, the Tribunal concluded that the applicant met the criteria for being in a de facto relationship and that there were compelling reasons for not applying the Schedule 3 criteria.

Consequently, the Tribunal remitted the application for reconsideration by the Minister, with a direction that the applicant met the specified criteria for the Subclass 820 Partner visa, including clauses 820.211(2)(a) and 820.221(1)(a) of Schedule 2, regulation 2.03A, and clause 820.211(2)(d).

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.CONSIDERATION OF CLAIMS AND EVIDENCE The issues in the present case are whether the applicant is the de facto partner of the sponsor as defined in s 5CB of the Act, and if so, whether he meets Schedule 3 criteria. Clauses 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. Section 5CB of the Act 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). In forming an opinion as to whether parties 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. The applicant is a 34-year-old Lebanese national. The sponsor is a 33-year-old Australian citizen. The parties met on 19 May 2016. The parties claim to have commenced cohabitation on 8 October 2016. Prior to the scheduled hearing, the applicant provided documentation which included but was not limited to statutory declarations, bank statements and letters of support. The Tribunal had significantly more evidence before it than was available to the delegate.Financial aspects of the relationship The Tribunal considered the evidence in relation to the financial aspects including joint ownership of assets, joint liabilities, any legal obligations owed to the other party, the extent of pooling of financial resources and any sharing of day-to-day household expenses. In a statutory declaration dated 24 January 2018, the applicant said:Luisa and I maintain a joint bank account and most of the utility bills including rent and internet bill is paid from the joint account.Luisa contributes mostly to the joint bank account, as I am currently unemployed. I will start contributing once I get my work rights and can work.Grocery bills, medical bills and other expenses are paid out of our joint bank account In a statutory declaration dated 24 January 2018, the sponsor provided similar evidence. In a statutory declaration dated 20 August 2018, the applicant said:I recently started work as a truck driver after I received permission to work. As a result, I am now able to financially contribute to our expenses. I deposit my pay into our joint account which is used to pay for our rent, internet payments and other expenses.

Decision

Reasons for decision

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 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)(a) of Schedule 2 to the Regulations·reg 2.03A·cl 820.211(2)(d)Christine KannisMemberATTACHMENT - Extract from Migration Regulations 19941.09A 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).

Ratio Decidendi

Legal Principle Established

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)(a) of Schedule 2 to the Regulations·reg 2.03A·cl 820.211(2)(d)Christine KannisMemberATTACHMENT - Extract from Migration Regulations 19941.09A 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).