Tran (Migration)

[2018] AATA 182

Tran (Migration) [2018] AATA 182 (1 February 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Thi Thu Thao Tran

CASE NUMBER:  1612710

DIBP REFERENCE(S):  BCC2014/3194385

MEMBER:Nicola Findson

DATE:1 February 2018

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 01 February 2018 at 2:40pm

CATCHWORDS
Migration – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner (Temporary)) – Financial arrangements – Travel records – Household duties – Sponsor’s illness

LEGISLATION
Migration Act 1958, ss 5CB, 65, 360(2), 375A
Migration Regulations 1994, rr 1.09, 2.03A, Schedule 2 cls 820.211, 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 8 August 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 25 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.820.211(2) because the delegate was not satisfied that there was sufficient evidence to support a finding that the parties had been in a de facto relationship for at least 12 months ending immediately before the date of application, that is 25 November 2013 and 25 November 2014. 

4. The applicant was represented in relation to the review by her registered migration agent.  The migration agent provided a submission accompanied by a large bundle of documents during the review process.  A copy of the delegate’s decision record was also provided to the Tribunal by the applicant.

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 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 is a 50 year old Vietnamese woman.  The sponsor is a 71 year old Australian man. At the time of visa application, the parties claim to have been introduced to each other at the beginning of March 2013, by a mutual Vietnamese friend.  The parties claim that the sponsor travelled to Vietnam to meet the applicant in person on 17 March 213 and a relationship developed after that time.  The parties claim that they committed to an exclusive relationship on 1 August 2013, during the sponsor’s third visit to Vietnam to spend time with the applicant.  The applicant came to Australia in December 2013 as the holder of a visitor visa, and spent about two months living with the sponsor.  After that, it is claimed that the applicant returned to Vietnam, applied for another visitor visa and next returned to Australia in September 2014, to continue living with the sponsor.  In the time that the parties have known each other, the sponsor has travelled to Vietnam on several occasions to spend time with the applicant.

8. The parties provided the Tribunal with information and documents which included, but were not limited to, documents evidencing travel undertaken by the parties, financial records, utility bills, medical documents, and statutory declarations of supporting witnesses.  The Tribunal had before it more information than was available to the delegate.

9. 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

10. 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?

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 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.

    Financial aspects of the relationship

13. 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.

14. 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.

15. The evidence before the Tribunal is that although the applicant was a business woman and financially independent when she met the sponsor, he provided her with financial support by way of regular money transfers in to her ANZ Bank account, totalling AUD$21,000, between March 2013 and September 2014.  The sponsor also purchased expensive jewellery for the applicant, in July 2014. The evidence reflects that the parties set up a joint account with VietinBank in September 2014, to use for their expenses – including accommodation, food, entertainment and travel - during their time together in Vietnam.  The documentary evidence also shows that the parties set up a joint bank account with Bendigo Bank after the applicant’s arrival in Australia, in October 2014. Since her arrival in Australia, the applicant has lived with the sponsor and been fully supported by him.

16. The sponsor has operated a construction business in Western Australia for a significant number of years.  In 2016, the sponsor arranged for the applicant to be appointed as a Director of his registered company, Superline Construction Pty Ltd.

17. The Tribunal is satisfied on the evidence provided that the financial arrangements of the applicant and sponsor are such that would indicate a genuine and continuing de facto relationship.

    Nature of the household

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

19. The parties’ evidence, which is supported by travel records and other documents, is that between August 2013 and November 2014, when the sponsor spent time in Vietnam (about 15 weeks in total), they lived together at the White Hotel in Ho Chi Minh City. The applicant has lived with the sponsor at his home address during her time in Australia – for about two months from December 2013, and from September 2014. 

20. The evidence before the Tribunal describes that the applicant takes a greater responsibility for household duties.  She prepares meals for the sponsor, cleans, and does the laundry.  The parties’ evidence is that they garden and do the grocery shopping together.

21. 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

22. 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.

23. The Tribunal has had regard to the evidence provided to it, including written statements made by the parties’ family members and friends as well as photographs. 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 from family members and friends attesting that the relationship between the applicant and sponsor is a genuine and loving one.  The statements indicate that the parties held themselves out as a couple to their family and friends from shortly after their relationship began in March 2013, and that they attended social activities as a couple.  The applicant and sponsor appear to enjoy an active social life and travelling together.  The evidence indicates that the parties have spent time with the applicant’s family in Vietnam.  The evidence also indicates that the parties spend time with the sponsor’s family.  The Tribunal regards this aspect as significant and the evidence is strongly supportive of the claimed relationship.

24. 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. Accordingly, the Tribunal is satisfied as to the social aspects of the relationship.

    The nature of the persons’ commitment to each other

25. The Tribunal considered the evidence in relation to the nature of the persons’ commitment to one another 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 their plans for the future together. 

26. A written submission provided to the Tribunal on 16 November 2017 describes the connection the parties had when they met in person in March 2013 and states that given the maturity of both the applicant and sponsor, as well as their previous broken marriages, they were only interested in pursuing a relationship when they were confident it would lead to love, happiness and a long life together.  The information before the Tribunal indicates that although they were living in different countries, the parties continued their committed relationship from 1 August 2013 until the applicant came to Australia to be with the sponsor in September 2014, by phone and visits to each other. 

27. The parties have provided evidence that the sponsor is a diabetic and has recently been diagnosed with pancreatic cancer.  The evidence before the Tribunal is that the applicant is currently undergoes medical treatment on a weekly basis.  The applicant has provided, and will continue to provide, emotional and physical support to the sponsor during his illness.

28. 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.

29. 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.

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

    Adverse information

31. In the context of the nature of the parties’ commitment to each other, it was necessary for the Tribunal to have regard to an anonymous dob-in allegation protected by a s.375A certificate. The certificate sought to exempt from disclosure to the applicant the contents of the dob-in allegation on the basis that the source of the information had an expectation of anonymity and the information contained in the allegation had the potential to identify the source.

32. The Tribunal is reluctant to give weight to an anonymous dob-in given the inability to test the information and to assess the motivation for the dob-in.  In this case, the Tribunal considers the evidence provided by the parties, and in particular, the support for the relationship by family and friends, far outweigh the adverse information, and in fact support a positive finding that this is a genuine relationship.  The Tribunal therefore gives the allegation from the anonymous source no weight. 

    Are the additional criteria for a de facto relationship met?

33. Persons claiming to be in a de facto relationship for a partner visa must also meet the additional criteria in Regulation 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 a de facto relationship for at least 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). 

34. 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).

35. The documentation submitted, which is now extensive, illustrates that the parties met in March 2013 and committed to a relationship with each other in August 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.

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

37. 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

38. 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 of the Migration Regulations.

    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).