Tracey (Migration)

[2018] AATA 5303

Tracey (Migration) [2018] AATA 5303 (17 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Fidelma Tracey

CASE NUMBER:  1606012

DIBP REFERENCE(S):  CLF2013/162764

MEMBER:Helen Kroger

DATE:17 November 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Partner (Residence) (Class BS) visa for reconsideration, with the direction that the primary applicant meets the following criteria for a Subclass 801 (Partner) visa:

.cl.801.221 of Schedule 2 to the Regulations

Statement made on 17 November 2018 at 3:43pm

CATCHWORDS
MIGRATION – Partner (Residence) (Class BS) visa – Subclass 801 (Partner) – genuine de facto relationship – same sex relationship – pooling of financial resources – opinion of friends and acquaintances – lived together since 2013 – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5CB, 65
Migration Regulations 1994 (Cth), r 1.09A; Schedule 2, cl 801.221

CASES
Bretag v MILGEA [1991] FCA 582
Minister for Immigration and Border Protection v Angkawijaya [2016] FCAFC 5
Minister for Immigration & Multicultural Affairs v Lay Lat [2006] FCAFC 61
Selvadurai v Minister of Immigration and Ethnic Affairs and J Good (Member of the Refugee Review Tribunal) [1994] FCA 1105

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 6 April 2016 to refuse to grant the visa applicant a Partner (Residence) (Class BS) Subclass 801 visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 16 July 2013. The delegate refused to grant the visa on the basis of her relationship with her sponsor. At that time, Class BS contained only one subclass: Subclass 801 (Partner). The criteria for the grant of this visa are set out in Part 801 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. Relevant to this matter, the primary criteria include cl.801.221.

3. The applicant was granted a Partner (Temporary) (Class UK) (Subclass 820) visa on the 30 October 2014, thus making her eligible for the grant of a Partner (Residence) (Class BS) (Subclass 801) visa. The delegate refused to grant the latter a visa on the basis that the applicant did not satisfy cl801.221(2) as the delegate was not satisfied that the applicant was the spouse or de facto partner of the sponsor as defined under sections 5F and 5CB of the Act. The applicant provided the Tribunal with a copy of the primary decision.

4. The applicant appeared before the Tribunal on 10 October 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the Sponsor (partner), Ms Lynch, and a witness, Ms Tudor, who appeared via telephone.

5. The applicant was not represented by a migration agent.

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

   BACKGROUND

7. The applicant is an Irish national who is 59 years of age. And the sponsor is a 62 year old Australian citizen who was born in Ireland. The parties knew each other in their youth when they both resided in Ireland. The sponsor has lived in Australia since 1991 and has a biological daughter to a former husband, who she separated from and later divorced. The relationship with Ms Tracey is her first same sex relationship.

8. The parties met again in Ireland in 2011 when the sponsor was returning to Ireland for a holiday and the applicant had returned to live there, to care for her ageing parents. The applicant had previously worked for a brewery in the United Kingdom and returned to continue working whilst caring for her parents. She has also qualified in a Diploma of Social Science and Disability. The sponsor returned to Australia 3 weeks later. The applicant’s father died in 2012 and she visited and stayed with the sponsor for 6 weeks, returning to care for her mother, who passed away in February 2013. After her mother passed away, she decided to save some money to come to Australia, with the parties deciding that they would see how their relationship developed. The parties claim to have shared the same bed when she stayed the previous year.

9. The applicant was granted a Partner (Temporary) (Subclass 820) visa on 30 October 2014  and the applicant is now the sole income earner for the parties, since the sponsor has suffered poor health, including cancer which has required chemotherapy.

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in the present case is whether, at the time of the 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. There is nothing before the Tribunal to indicate that the sponsor is not an Australian citizen, and accordingly the requirements of cl.820.211(2)(a) and 820.221 are met.

    Are the parties in a de facto relationship?

11. ‘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).

12. In forming an opinion whether the applicant and sponsor 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).

13. In making its findings about the circumstances of the relationship, the Tribunal has applied the principles espoused in Bretag v MILGEA [1991] FCA 582 for the purpose of determining whether the relationship is genuine and continuing. In considering the documentation provided to the Tribunal and the oral evidence of the applicant, sponsor and witnesses, the Tribunal is satisfied that the parties are in a de facto relationship that is valid for the purposes of the Act as required by s.5CB(2).

    Other matters

14. It is appropriate to observe at the outset that compliance with the prescribed criteria turns on the Tribunal’s satisfaction as to whether or not the criteria have been met and not on the objective existence of that fact (Minister for Immigration and Border Protection v Angkawijaya [2016] FCAFC 5 at 15).

15. In determining whether it is so satisfied, the Tribunal is not required to uncritically accept any or all of the allegations made by the applicant or sponsor and it has not done so.  As HJ observed in Selvadurai v Minister of Immigration and Ethnic Affairs and J Good (Member of the Refugee Review Tribunal) [1994] FCA 1105 at [7]:

    A decision-maker does not have to have rebutting evidence available before he or she can lawfully hold that a particular factual assertion by an applicant is not made out.

    Similarly, as observed in Re Minister for Immigration & Multicultural Affairs; ex parte Durairajasingham [2000] 168 ALR 407 at [67]: If the primary decision maker has stated that he or she does not believe a particular witness, no detailed reasons need be given as to why that particular witness was not believed. The Tribunal must give the reasons for its decision, not the sub-set of reasons why it accepted or rejected individual pieces of evidence.

16. The Tribunal adopts the finding of the Full Federal Court in Minister for Immigration & Multicultural Affairs v Lay Lat [2006] FCAFC 61, in observing that a decision-maker is not required to make the applicant’s case. It is for the applicant to satisfy the Tribunal that the requirements of the Act and Regulations have been met. Although the concept of onus of proof is not appropriate to administrative decision-making, the relevant facts of the individual case have to be supplied by the applicant, in as much detail as is necessary to enable the examiner to establish the relevant facts. The Full Federal Court held, at [76]:

    In an inquisitorial process, it was for the respondent to put whatever evidence or argument he wished to the decision-maker to enable her to reach the requisite state of satisfaction. 

    Are the other requirements for a spousal relationship met?

17. Regulation 1.15A(3) provide relevant factors for determining whether a de facto or spouse relationship exists, which is extracted in the attachment to this section.  These factors are (a) the financial aspects of the relationship; (b) the nature of the household; (c) the social aspects of the relationship; and (d) the nature of the person’s commitment to each other.  

    The Financial Aspects of the Relationship

18. The Tribunal must consider all the financial aspects of the relationship including any joint ownership of real estate or other major assets; any joint liabilities; the extent of any pooling of financial resources (especially in relation to major financial commitments); whether either person in the relationship owes any legal obligation in respect of the other and the basis of any sharing of day to day household expenses.

19. The applicant is the sole income earner in the relationship, working in disability care, supporting clients who live ‘independently’. The sponsor is unable to work due to poor health and receives a Centrelink pension. She previously ran a café in a building/residence that she owned with a former husband. Evidence submitted regarding the nature of the financial assets and liabilities held by the sponsor (folio 110) itemise the financing arrangements reached for the property settlement, and indicate why the sponsor continued her banking arrangements with Westpac whilst also establishing a joint account, with the applicant.  Her daughter continues to live in the “family home” and the parties have moved from this residence into another nearby home that was “gifted” to them, from a local Irish born acquaintance. This residence has been willed to the two parties and the daughter (Sadhbh) for their use, until such time as they no longer want to live there (folio 82). The parties continue to make mortgage re-payments for their previous residence, and pay all bills and expenses for the 2 properties.

20. As indicated above, the applicant works in disability support services, earning $2400 per fortnight. $600 is automatically transferred into the joint account which the sponsor uses to pay for the mortgage and general expenses. The sponsor’s pension is also directed to defraying expenses incurred by the parties.  Evidence before the Tribunal indicates that the sponsor has advised the Department of Social Security of the change to her relationship status, and is no longer eligible to a “single’s” pension.

21. At hearing the parties claim that the sponsor assumes greater responsibility for the management of the finances, that the applicant is not computer literate in managing their affairs,  and given the applicant’s long working hours, the payment of accounts is managed by the sponsor.

22. The Tribunal has considered the assets that she holds following the previous property settlement, the Will (folio 82) that identifies the parties and daughter as the beneficiaries, documentation and evidence provided at hearing regarding the income earning and management arrangements for their financial affairs.

23. The Tribunal finds that the parties share some assets and liabilities, although not all, and has regard for the transparent way in which they manage the financial aspects of their relationship. The Tribunal finds that the parties pool their financial resources and share day to day household expenses. Accordingly the Tribunal places some weight on the financial circumstances of their relationship.

    The nature of the household

24. In assessing the nature of the household, the Tribunal gives weight to evidence of joint responsibility or shared responsibility for housework and chores, for the care and support of any children (where relevant), and the living arrangements of the parties.

25. The parties have shared the same residence since the applicant moved to Australia in 2013. They initially lived in the “church”, the residence where the sponsor previously lived with her daughter and where she ran a café, and have since moved to a nearby friend’s. The sponsor’s daughter continues to live in the former residence.

26. At hearing it was explained that the friend moved out of this secondary house when his wife passed away, who was a hoarder. He offered the home to both the parties and together they sorted and cleared out the home so that they could move in. The sponsor assumes primary responsibility for running the household as the applicant works long hours and often shift work that necessitates her staying with her clients in their communal house. She explained that she loves cooking, buys the food, does the laundry and generally tidies up. She also visits her daughter’s residence to clean and tidy up.  The applicant frequently works weekends so the sponsor explained that she is happy to support the household in this way.

27. The Tribunal has given careful regard to the living arrangement of the parties, the composition and nature of the household and the way in which the parties have reached an understanding about the running of the household. The Tribunal accords some weight to the nature of the household.

    The social aspects of the relationship

28. In assessing the social aspects of a relationship, the Tribunal must have regard to all the social circumstances of the relationship including whether the parties represent themselves as a couple to other people as being married to each other; the opinion of the parties’ friends and acquaintances about the nature of the relationship and any basis on which the parties plan and undertake joint social activities.

29. The parties were very candid and open in their submissions regarding the nature of their relationship, and provided an insight into their approach. The applicant spoke of her previous bi-sexuality”, growing up with six brothers in a traditional catholic Irish family, moving to the United Kingdom to work, and indicated that her move away from the family provided a great degree of independence. The sponsor who claimed this was her first same sex relationship, was very persuasive at hearing when she explained that she just knew when the relationship developed, and that you don’t question it, when it comes along. The mature age of both parties contributes to their approach in dealing with many circumstances.

30. When the applicant arrived in Australia, she immediately assisted in the café that was then operating, that provided an opportunity to engage with many locals with the sponsor. One of those people was the friend who willed his property to them. When the applicant is not working, they enjoy visiting markets together, getting out into the “bush”, travelling to Daylesford or spending time at home.  The Tribunal has considered the conservative nature of the regional Victorian city where they live and is satisfied with the reason provided why the parties have not been overt in broadcasting their relationship.

31. Mrs Tudor, the witness who appeared before the Tribunal, indicated that she met the parties through the applicant (Ms Tracey) in her capacity as a carer. Mrs Tudor was persuasive in her evidence about the nature of their relationship and her personal testimony, reflecting on their integrity, compassion and personal qualities of the parties.

32. Whilst the parties submitted that they had not directly discussed the nature of their relationship with a number of people, the Tribunal has had regard to their age, the flamboyant and quirky nature of the parties, and in particular, the consistency of the evidence given at hearing. Eight witness statements from different individuals who know the parties were submitted to the Tribunal (folios 57-64).

33. The Tribunal has given careful regard to the social aspects of the relationship, the nature of their relationship with the sponsor’s daughter, the collective emotional support and care for her, the actions of their friend in his legal considerations (will) and the way in which they present themselves to Ms Tudor. Accordingly the Tribunal gives some weight to the social aspects of the relationship.

    The nature of the person’s commitment to each other

34. In assessing commitment to each other, the Tribunal must have regard to the duration of the relationship, the length of time during which the persons have lived together, the degree of companionship and emotional support that the parties draw from each other and whether the persons see the relationship as a long term one.

35. The Tribunal has considered the length of time that the parties have known each other since they met again in 2011.  The evidence before the Tribunal indicates that they have lived colourful and diverse lives and were surprised and pleased when they met again in Ireland. The parties explained that the sponsor assisted the applicant to get a phone and computer so they could stay in touch, as she is not computer literate. Following the passing of both of her parents, the sponsor encouraged her to join her in Australia and they have lived together and not apart since 2013.

36. At hearing, evidence before the Tribunal indicates the significant degree of emotional and physical support the applicant has provided the sponsor, to assist her through challenging health issues. Submissions regarding the care, concern and affection shared was both consistent and credible. The parties indicated their wish to travel together to Ireland to visit family and friends.

37. The Tribunal has considered the nature of the person’s commitment to each other, the duration of the relationship and the support they draw from each other and accordingly, places significant weight on the nature of the person’s commitment to each other.

    FINDINGS

38. Given these findings the Tribunal is satisfied that the requirements of s.5F(2) are met at the time of this decision.

39. 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 801 visa.

    DECISION

40. The Tribunal remits the application for a Partner (Residence) (Class BS) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 801 (Partner) visa:

    . cl.801.221 of Schedule 2 to the Regulations

    Helen Kroger
    Member

    
    

    ATTACHMENT  - Extract from Migration Regulations 1994

    1.15ASpouse

    (1)For subsection 5F (3) of the Act, this regulation sets out arrangements for the purpose of determining whether 1 or more of the conditions in paragraphs 5F (2) (a), (b), (c) and (d) of the Act 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 married to 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).