Tsui (Migration)

[2020] AATA 1941

Tsui (Migration) [2020] AATA 1941 (18 March 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Sze Man Tsui

CASE NUMBER:  1814578

HOME AFFAIRS REFERENCE(S):          BCC2016/2229332

MEMBER:Christine Kannis

DATE:18 March 2020

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 of Schedule 2 to the Regulations

·cl.820.221 of Schedule 2 to the Regulations

·r.2.03A

Statement made on 18 March 2020 at 6:54am

CATCHWORDS

MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – genuine and continuing de facto relationship – joint ownership of properties – evidence of socialising and joint travel – duration of relationship – decision under review remitted           

LEGISLATION

Migration Act 1958, ss 5, 65
Migration Regulations 1994, Schedule 2, cls 820.211, 820.221; rr 1.09, 2.03

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 Home Affairs 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 30 June 2016 on the basis of her relationship with her sponsor, Mr Eric Schulstad. 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 (the Regulations). The primary criteria must be satisfied by the applicant.

3. The delegate refused to grant the visa 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 she did not satisfy 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 on 9 March 2020 to give evidence and present arguments. The Tribunal also received oral evidence the sponsor and a friend Ms Hui Tsz Yan Lena. The Tribunal hearing was conducted with the assistance of an interpreter in the Cantonese and English languages.

6. At the commencement of the hearing the Tribunal informed the applicant that information in folio 1 of the Departmental file [BCC2016/2229332] was the subject of a s.375A certificate. This certificate prevents the Tribunal disclosing any document, matter or information referred to in the certificate as it would be contrary to the public interest. In this case the reason disclosure would be contrary to the public interest was stated to be that the information was provided to the Department in confidence. The Tribunal decided the certificate was valid. The Tribunal decided the information was relevant to this review and informed the review applicant that it would be provide the gist of the information to her during the hearing under s.359AA of the Act. The Tribunal provided the applicant with a copy of the s.375A certificate.

7. The applicant was represented in relation to the review by her registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in the present case is whether the applicant is the de facto partner of the sponsor within the meaning of s 5CB of the Act.

   Are the parties in a de facto relationship?

10. 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 is sponsored by a person who is an Australian citizen.

11. 'De facto partner' is defined in 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).

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. Each of the specific matters contained in r.1.09A(3) are effectively questions which must be answered: He v MIBP [2017] FCAFC 206.

    Background

13. The applicant is a 52 year old Hong Kong national. The sponsor is a 77 year old Australian citizen.  

14. The applicant arrived in Australia on 3 December 2013 on a Visitor visa. She was subsequently granted Student visas on 19 December 2013 and 9 July 2014. She was granted a further Visitor visa on 19 January 2016.  

15. The applicant and the sponsor met on 29 December 2013 and commenced cohabitation on 1 December 2014.

16. On 30 June 2016 the applicant lodged a Partner visa application (Subclass 820/801).

17. The Tribunal considered the evidence against the r.1.09A(3) matters.

    Financial aspects of the relationship

18. The Tribunal has taken into account the evidence provided as to the financial aspects of the relationship including the extent of pooling of financial resources and any sharing of day-to-day household expenses.

19. The applicant and the sponsor are the joint registered proprietors of two properties, situated at Tenth Avenue Maylands (Tenth Avenue) and Charles Street, Maylands WA (Charles Street. Copies of Duplicate Certificates of Title evidencing joint ownership of the properties were provided. The parties own the properties as tenants in common. Tenth Avenue was registered in parties’ joint names on 12 January 2015. The Charles Street property was registered in the parties’ joint names on 30 June 2015. At hearing both parties gave evidence that the sponsor purchased both properties and that the applicant made no financial contribution.

20. In a statutory declaration dated 15 June 2016 the sponsor said he purchased Tenth Avenue as an investment property and said he and the applicant live at Charles Street. He said he is the mortgagee and the applicant is the mortgagor of 50% for both properties. He purchased all the furniture and whitegoods. The sponsor said the telephone, gas and rates charges were in joint names and said he and the applicant had a joint ANZ account which she managed for food purchases.

21. At hearing the sponsor explained that the reason for the Tenth Avenue and Charles Street Certificates of Titles showing there are mortgages to him in relation to the applicant’s interest in each property is because he wanted to be able to transfer the applicant’s interests to himself if the relationship failed. He said it wasn’t necessary because the relationship had endured. At hearing the parties provided written and oral evidence to show that the sponsor has purchased a third property in the applicant’s name only. He told the Tribunal that he purchased this property for her so that she will have an income.

22. The applicant provided the Department with evidence that she and the sponsor had joint bank accounts in 2015 and 2016. No bank statements were provided. At hearing an ANZ statement for a joint account for a period in 2020 was provided. 

23. At hearing both parties gave oral evidence that the applicant had made a limited contribution towards their joint living expenses and made no contribution towards their joint assets. The applicant said she worked on and off from 2015 to 2018 in the fast food, child care and sex work industries. She was paid in cash and this money was used for joint living expenses. She has not worked since 2019 and has been financially supported by the sponsor. The sponsor said the sources of the applicant’s contribution to joint living expenses was money she brought from Hong Kong and said at no time had she worked in Australia.

24. Despite the inconsistencies in the parties’ evidence the Tribunal finds that the evidence in relation to the financial aspects of the relationship is an indicator of a genuine and continuing de facto relationship at the time of application and at the time of decision. The Tribunal considers that the sponsor’s financial support of the applicant supports such a finding.

    Nature of the household

25. The Tribunal has taken into account the evidence as to the nature of the household including the parties’ living arrangements and any sharing of housework.

26. The parties gave consistent evidence that when they commenced residing together they lived at Hamilton Street, Cannington for six months. They then moved to Charles Street where they have remained. Receipts in the parties’ joint names for furniture and whitegoods purchases addressed to Charles Street in 2014 and 2015 were provided.  

27. In a statutory declaration dated 15 June 2016 the sponsor said the applicant is responsible for cooking, cleaning and laundry and he attends to the outside area. He said they do the shopping together.  At hearing the parties gave consistent evidence in relation to the division of household tasks.

28. The Tribunal finds the evidence of the nature of the household is an indicator of a genuine and continuing de facto relationship at the time of application and at the time of decision.

    Social aspects of the relationship

29. The Tribunal has considered the evidence provided as to whether the persons represent themselves to other people as being in a de facto relationship, 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.

30. In a statutory declaration dated 15 June 2016 the sponsor said he and the applicant go out for meals with close friends and attend local events held by the Old Machinery Club of WA.

31. In a statutory declaration dated 6 February 2018 the applicant said she and the sponsor had just returned from a holiday which included a cruise and a few days on the Gold Coast. She said they also attended the wedding of close friends in King’s Park.

32. The applicant told the Tribunal that she and the sponsor had taken several holidays together including a cruise around Australia, a trip to Tasmania in 2018, a trip to Adelaide in 2019 and holidays to Margaret River and Albany in 2019.

33. Prior to the hearing the applicant provided a photo album which contained several photos of her and the sponsor. At hearing she identified that they had been taken at a friend’s wedding in 2018 and on their trips to Tasmania and Margaret River. Photos of the parties having lunch in Chinatown in 2015 with friends were also provided.

34. Statutory declarations made by friends of the parties, Mr John Cavanagh and Mr Derek Ashcroft were provided. Both declarations were made on 9 May 2015. Mr Cavanagh said he had known the applicant for one year and the sponsor for four years. He said they were good friends and he mixed with them socially as a group and in each other’s homes. His reasons for believing the parties’ relationship is genuine and continuing are that their love for each other is readily apparent and their relationship is true and happy.  Mr Ashcroft said he had known the applicant for one year and the sponsor for five years. He said they go out for meals and drinks together. His reason for believing the parties’ relationship is genuine and continuing is that to the best of his knowledge the relationship is genuine and ongoing. Given the general nature of the reasons provided in the statutory declarations the Tribunal gave this evidence minimal weight.

35. A statutory declaration made by the sponsor’ son, Mr Keith Schulstad, dated 12 July 2016 was provided. He said his parents had lived separately under one roof for many years. He said the sponsor left the home in mid-2013 and that he sees him nearly every weekend. No mention was made of the applicant or of the parties’ relationship.

36. Ms Hui Tsz Yan Lena told the Tribunal she has known the parties since 2015. She socialises with them on a regular basis and celebrates occasions such as birthdays with them by taking a trip together. She said the applicant and the sponsor attended her wedding together in 2018. She believes the relationship is genuine and said they always help each other and they go on holidays together.

37. The evidence before the Tribunal in relation to the social aspects of the relationship was limited. The Tribunal accepts that the applicant and the sponsor have travelled together and that they attend social occasions as a couple. The statutory declarations did not provide persuasive reasons for the declarants’ beliefs however it is clear that the declarants were aware of the relationship. Although recognition is not generally sufficient, despite the limited evidence the Tribunal is satisfied in this case that at the time of application the parties represented themselves to other people as being in a de facto relationship with each other and that they continue to represent themselves as being in a de facto relationship.

    The nature of the persons’ commitment to each other

38. The Tribunal has considered the evidence provided 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 whether they see the relationship as long term.

39. On 24 August 2016 the sponsor advised the Department that his relationship with the applicant had ceased. On 22 January 2018 the Department sent the applicant an Invitation to comment on the information received and gave her the opportunity to provide a response and the reason for the breakdown of the relationship. In response, the applicant provided a statutory declaration dated 6 February 2018 in which said she and the sponsor had never separated and apart from her visits to her parents in Hong Kong and two hospitalisations, they had always lived together. The sponsor provided a statutory declaration dated 30 January 2018 which provided similar information. He also provided a statutory declaration dated 12 February 2018 in which he stated that there had been a hiccup in the relationship over a financial loan account. He stated that there was a conflict in relation to a loan and that the only way to encourage the applicant to make repayments was for him to threaten separation.

40. The sponsor’s statutory declaration dated 12 February 2018 was put to the applicant utilising the s.359AA procedure. She said there had never been any problem in her relationship with the sponsor. She said she had borrowed $8,000 from him for medical expenses in 2015 however he had not required her to repay the loan. The sponsor told the Tribunal that he lent the applicant $3,000 for study related expenses and $10,000 for her parents and said she had repaid the money. He said this was the loan referred to in his statutory declaration dated 12 February 2018. The Tribunal notes the inconsistencies in the parties’ evidence however does not consider them to be significant in this particular case.

41. In a statutory declaration dated 15 June 2016 the sponsor said he and the applicant are committed to the future and to each other. In a statutory declaration dated 6 February 2018 the applicant said she and the sponsor hoped to marry sometime in the future. She told the Tribunal they will marry if the sponsor’s wife (from whom he is not divorced) passes away.

42. The parties have lived together for more than five years and they both gave evidence that they see their relationship as long term.

43. Section 375A certificate and s.359AA information

44. The Tribunal told the applicant that the information covered under the s.375A certificate was information provided to the Department and that it would be disclosed to her to enable her to comment. The information was put to her pursuant to s.359AA of the Act.  

45. The Tribunal put to the applicant that the Department was advised that at one time she was worked as a self-employed sex worker in Sydney and in Melbourne. The applicant told the Tribunal that she worked in the sex industry for a few months prior to commencing her relationship with the sponsor. She said she needed to earn money to pay for her study related expenses.

46. The Tribunal noted the inconsistencies in some of the evidence provided by the parties however decided these were outweighed by the consistent evidence with respect to the joint ownership of property, the addresses at which the parties have resided and the division of household tasks. The Tribunal also places weight on the photos provided which evidence the parties socialising with others and taking holidays together over several years.

47. Regarding whether the requirements of s.5CB(2) were met at the time of application, the Tribunal decided:

    ·the parties were not married;

    ·the parties lived together;

    ·they were not related by family;

    ·they had a mutual commitment to a shared life together to the exclusion of others; and

    ·the relationship was genuine and continuing.

48. Therefore the applicant meets cl.820.211(2)(a). There is no evidence indicating that the applicant does not satisfy the sub-criteria in cl.820.211(2)(c) or (d).

    Are the additional criteria for a de facto relationship met?

49. 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: r.2.03A(2) and with limited exceptions, that the de facto relationship existed for at least the period of 12 months ending immediately before the date of the application, unless the applicant can establish compelling and compassionate circumstances for the grant of the visa: r.2.03A(3). 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). These exceptions do not apply in the present case.

50. The Tribunal finds on the evidence before it that the applicant and the sponsor were over the age of 18 at the time of application.

51. There is no evidence that the relationship is registered under a relevant State or Territory law or that the sponsor held, holds or is applying for a permanent humanitarian visa, so they must meet the 12 month requirement. The application was made on 30 June 2016. The evidence was, and the Tribunal finds, that the parties met on 29 December 2013 and commenced cohabitation on 1 December 2014.  Accordingly, the Tribunal is satisfied that the applicant had been in the de facto relationship for at least the 12 month period ending immediately before the date of the application.

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

    CONCLUSIONS

53. The Tribunal finds that the applicant meets cl.820.211(2) and that she continues to meet the requirements of cl.820.211(2) at the time of this decision as the de facto partner of her sponsor.  Therefore the applicant satisfies cl.820.221.

54. 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

55. 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 of Schedule 2 to the Regulations

    ·cl.820.221 of Schedule 2 to the Regulations

    ·r.2.03A

    Christine Kannis
    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).