To (Migration)

[2022] AATA 1103

To (Migration) [2022] AATA 1103 (9 February 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Kai Kwong To

VISA APPLICANTS:  Ms My Hanh Tran
Mr Bao Minh Pham
Mr Minh Phuong Pham

CASE NUMBER:  2008220

DIBP REFERENCE:  BCC2019/1925436

MEMBER:Rosa Gagliardi

DATE:9 February 2022

PLACE OF DECISION:  Australian Capital Territory

DECISION:The Tribunal remits the applications for Partner (Provisional) (Class UF) visas for reconsideration, with the direction that the first named visa applicant meets the following criteria for a Subclass 309 (Partner (Provisional)) visa:

·cl.309.211(2) of Schedule 2 to the Regulations;

·cl.309.221 of Schedule 2 to the Regulations; and

·r.2.03A.

Statement made on 9 February 2022 at 10:25am

CATCHWORDS
MIGRATION –Partner (Provisional) (Class UF) visa – subclass 309 – applicant has provided evidence that the relationship is registered under the relevant laws of the Australian Capital Territory – visa applicant meets the additional criteria prescribed in r.2.03A – applicants are currently in a genuine and continuing de facto partner relationship – decision under review remitted

LEGISLATION
Migration Act 1958, ss 5, 65
Migration Regulations 1994, rr 1.09A, 2.03A, Schedule 2, cls 309.211, 309.221

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 Immigration on 12 March 2020 to refuse to grant the visa applicants Partner (Provisional) (Class UF) visas under s.65 of the Migration Act 1958 (the Act).

2. The first named visa applicant (the visa applicant) applied for the visa on 16 April 2019 on the basis of their relationship with their sponsor, the review applicant. At that time, Class UF contained only one subclass: Subclass 309 (Partner (Provisional). The criteria for the grant of this visa are set out in Part 309 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.309.211(2) because it was not accepted that the parties are in a genuine and continuing de facto partner relationship as set out under r.1.09A(3).

4. The review applicant appeared before the Tribunal on 26 November 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the first-named visa applicant in Vietnam by telephone.

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

   SPOUSE/DE FACTO (cl.309.211(2), cl.309.221)

   Whether the parties are in a spouse or de facto relationship

7. Clause 309.211(2) and 309.221 require that at the time the visa application was made, and at the time of this decision, the visa 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 visa applicant claims to be the spouse of the review applicant who is an Australian citizen.

   Are the parties in a de facto relationship?

8. ‘De facto partner’ is defined in s.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).

9. 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 visa applicant’s and review applicant’s household and their commitment to each other as set out in r.1.09A(3) which is attached to this decision. Each of the specific matters contained in r.1.09A(3) are effectively questions which must be answered: He v MIBP [2017] FCAFC 206.

   Are the parties in a de facto relationship?

10. The Tribunal, like the Department, notes that in some areas under Regulation 1.15A, the evidence in this case is not significant.  However, it would be unreasonable to place adverse weight on the limited evidence without setting the parties’ circumstances in context.  The parties are separated geographically now due, as the sponsor pointed out, the COVID-19 pandemic which has made travel for someone of his age group risky and difficult.  The Tribunal accepts, therefore, that the development of the parties’ relationship in the usual way in terms of visits and spending time together to get to know one another, has been disrupted by the pandemic.  In addition, the sponsor’s means are modest, even though the sponsor has provided evidence of financial support to his partner.  He is living in subsidised accommodation and receives the age pension.

11. As such, the Tribunal, while having an eye to the decision in He, summarises the evidence before it.  The Tribunal has also relied on the credibility of the parties (the sponsor and applicant presented as genuine) and their knowledge of one another, and their expressed need for companionship.

12. In its decision, the Department did in fact comment that given the parties lived geographically apart that it was not reasonable to place significant weight on the limited evidence of the parties having pooled their financial resources, even though the Tribunal notes the sponsor has submitted evidence of sending the applicant financial gifts.  The Department also did not make a great deal of the fact that the parties did not provide a significant amount of evidence regarding their shared household.  The Tribunal would observe, however, that in fact the parties had lived together in Australia for over a month (something about which they gave consistent evidence about at hearing) and had spent time with friends and family in the home area of the applicant in Vietnam, including have lived at her home for a week.

13. The Tribunal found the sponsor’s narrative of how he and the applicant met, particularly plausible as he related that he had spent 20 years looking after his previous spouse who had had a stroke and was immobile.  In the final year of his late wife’s life (she was in a residential facility) the sponsor would visit her in the residential facility and to avoid going home alone would stop off at a restaurant to have dinner where he had become friendly with the owner, a Vietnamese lady.  The owner of the restaurant’s sister was visiting from Vietnam and the sponsor started chatting to her and they formed a friendship.  The sponsor’s wife at that time then passed away. After some time, the sponsor started a relationship with the applicant.  They moved into the sponsor’s house on 30 November 2018, before she departed for Vietnam on 20 January 2019.  They had registered a civil partnership in February 2019 in Australia.

14. The sponsor then departed for Vietnam in 2019 and travelled together with the applicant and her sons for some of the time (evidence of hotel receipts in both names have been submitted for June 2019). 

15. The Tribunal appreciates that the parties do not speak the same language, however, at hearing the sponsor spoke convincingly of using google translate and being adept at using this mechanism to communicate about their everyday lives.  Indeed, the answers given by the parties about one another at hearing very much reflected that they were aware of the parties’ respective illnesses, their financial circumstances, their earnings and other more obscure matters that the parties might not have expected the Tribunal to discuss with them.

16. At hearing the sponsor genuinely expressed his need for companionship.  He had left his employ as a chef to care for his late wife for 20 years.  During that time, in the words of the sponsor, “I lost my life.  I could not go anywhere”.  He stated that while a Catholic he had not been able to attend any church and community events to gain support and to continue any form of social life.  It appeared from the hearing that the sponsor, while having a good relationship with his children, was also somewhat distant from them.  He also had a sister in Australia, but he did not have a relationship with her as they had drifted apart.

17. The sponsor spoke realistically at hearing about not having any great plans for the future with the applicant, he was 75 and needed companionship and someone to care for him.  He stated that when and if the visa application were successful, he would also ensure that he would advise the relevant housing authorities that his two step-sons would come to live with him as well as the applicant.  The sponsor stated that one of the sons spoke English as he had studied it and they got on well.  He had developed a good relationship with the applicant’s sons while they travelled around Vietnam together.  The applicant explained that her two sons were living independently in Ho Chi Minh City now and that the younger one was studying, but the elder one was undertaking an apprenticeship in bakery.

18. The applicant similarly saw their future together as one involving care for one another and pursuing a simple family life.

19. Given the evidence before it, and taking into account that the parties have been kept apart largely due to the pandemic, the Tribunal is satisfied that the parties are not living separately and apart on a permanent basis; that they have a mutual commitment to one another to the exclusion of others, and that they see their relationship as long-term.

    Are the additional criteria for a de facto relationship met?

20. 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.

21. 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.

22. The applicant has provided evidence that the relationship is registered under the relevant laws of the Australian Capital Territory 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 in this case.

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

    Conclusion

24. 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.

25. Therefore, the visa applicant meets cl.309.211(2) and cl.309.221.

26. 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 309 visa.

    DECISION

27. The Tribunal remits the applications for Partner (Provisional) (Class UF) visas for reconsideration, with the direction that the first named visa applicant meets the following criteria for a Subclass 309 (Partner (Provisional)) visa:

    ·cl.309.211(2) of Schedule 2 to the Regulations;

    ·cl.309.221 of Schedule 2 to the Regulations; and

    ·r.2.03A.

    Rosa Gagliardi
    Member

    
    

    ATTACHMENT  -  Extract from Migration Regulations 1994

    1.09ADe 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).