VO (Migration)

[2020] AATA 2614

VO (Migration) [2020] AATA 2614 (9 April 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Thi Tuyet Mai Vo

CASE NUMBER:  1805880

DIBP REFERENCE(S):  BCC2016/4206080

MEMBER:Nicholas McGowan

DATE:April 9, 2020

PLACE OF DECISION:  Melbourne

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) and cl.820.221 of Schedule 2 to the Regulations.

Statement made 9 April 2020 at 11:36am.

CATCHWORDS
MIGRATION –Partner (Temporary) (Class UK) visa – Subclass 820 – age requirement met –compelling and compassionate circumstances exist–married relationship – relationship is genuine and continuing – evidence provided –decision under review remitted

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

REVIEW

1. The applicant applied for a Partner (Temporary) (Class UK) visa under s.65 of the Migration Act 1958 (the Act) on 13 December 2016.

2. A delegate for the Immigration Minister refused to grant the visa on 13 February 2018.

3. The sponsor appealed the delegate’s refusal decision to this Tribunal on 6 March 2018.

4. The refusal decision had been based on the applicant’s failure to satisfy Regulation 2.03A(3) or the alternates (4) or (5).

5. It is not in contention that the applicant and sponsor meet the ‘age requirements’ in subregulation 2.03A(2)(a) and (b), as discussed below.

   Are the additional criteria for a de facto relationship met?

6. Persons claiming to be in a de facto relationship for a partner visa must meet the additional criteria in r.2.03A.

7. Subregulation 2.03A(2) imposes a minimum age requirement for both the sponsor and applicant. Simply put, the applicant and sponsor must each be at least 18 years of age at the time they applied for the visa. The Tribunal finds that the visa applicant and the sponsor were both at least eighteen years of age at time of application as evidenced by their identity documentation provided to the Immigration Department as part of their partner visa application. It follows therefore, that the parties met r.2.03A(2)(a) and (b).

8. Subregulation 2.03A(3) states that if the applicant cannot establish compelling and compassionate circumstances for the grant of the visa, the Minister must be satisfied that the applicant has been in the claimed ‘de facto’ relationship for at least the period of 12 months ending immediately before the date of the visa application. In plain speak, the applicant and sponsor must have been in a ‘de facto’ relationship ( as defined under the Act and regulations) 12 months before the date they applied for the visa – and if they were not, they may still meet the criteria for the grant of the visa if the applicant can establish compelling and compassionate circumstances. Subregulation 2.03A(3) will not apply in cases where the ‘de facto’ relationship is a relationship which is recognised under a law of a State or Territory prescribed in the Acts Interpretation (Registered Relationships) Regulations 2008 as a kind of relationship prescribed in those Regulations. As no ‘relationship’ has been registered as prescribed above, the Tribunal must turn its mind to whether the parties were in a ‘de facto’ relationship (as defined in the Act and regulations) 12 months prior to the time of application.

9. It is important to ‘catalogue’ in this ‘decision record’ the documentary evidence provided by the visa applicant and her sponsor. Important, not because of the volume of evidence, but because the nature of the evidence as it speaks so strongly to a married relationship with significant intertwining of all aspects of their life, including their financial, social, and household circumstances, and how, in the view of this Tribunal, this combination of documentary evidence taken together with their oral evidence, speaks with clarion voice to the commitment they demonstrate through their actions (as evidenced variously below):

   (a)  An 11 page submission by the migration agent outlining the case background, visa application process, relevant law, the applicant’s response to the criteria under section 5CB and the 1.09A considerations, and the applicant’s response to requirements contained in the ‘additional’ criteria (2.03A);

   (b)  A nine-page statutory declaration form the sponsor which is both candid, caring and somewhat comprehensive, including a reasonable succinct though proportionally detailed history of the relationship and account at present;

   (c)   A four-page statutory declaration from the visa applicant which is succinct and consistent with all her previous accounts. The visa applicant’s statement taken at face-value is without embellishment, personal and provides an important insight to the parties’ relationship;

   (d)  A copy of health insurance confirmation from the Australian Government addressed to the visa applicant at the parties’ marital home;

   (e)  Copies of gas and water (utility) invoice and accounts in both the visa applicant and sponsor’s name and addressed to the share marital home over a multi-year timeframe;

   (f)    Banking particulars and statements for the sponsor’s bank accounts (two institutions), including identification of specific (line-by-line) purchases, and evidencing particular expenditure for their marital household, joint social activities and general day-to-day expenses;

   (g)  Tax returns and Notice of Assessments from the Australian Taxation Office in each the visa applicant and sponsor’s name, including their declaration of one another for taxation purposes;

   (h)  International money transfer records from the visa applicant to a receiver in Vietnam;

   (i)    Receipts over a three year time frame, evidencing numerous purchases including household items;

   (j)    Copies of personal communications between the visa applicant and sponsor over a period of years and using various platforms;

   (k)   Transactions receipts evidencing joint travel and social activities undertaken with between the visa applicant and her sponsor;

   (l)    A significant number of photographs of the visa applicant and sponsor together, taken both  here in Australia and abroad, an importantly, including relatives, friends, acquaintances and including the visa applicant’s two children;

   (m) No fewer than six formal ‘888’ Forms, in which witnesses who are friends of the couple, either through work or simply because they are their neighbour. Each person has provided a brief explanation and insight into the visa applicant’s and sponsor’s relationship from their observation. In at least two examples the friends of the sponsor have known the sponsor for in excess of 40 years;

   (n)  Medical records and a letter from a general practitioner in respect to the sponsor;

   (o)  A copy of the sponsor’s Last Will and testament and provision for the visa applicant and her children in the event of the death of the sponsor.

10. In this case the applicant and sponsor claim to meet subregulation 2.03A(3) because they can establish compelling and compassionate circumstances for the grant of the visa.

11. Apropos the above, there is no claim by the applicant, or evidence before this Tribunal, to support a finding that the applicant or sponsor meet the alternative provisions under subregulation 2.03A(4) or 2.03A(5).

12. The applicant and her sponsor provided a significant volume of documentary evidence which speaks directly to this Tribunal’s consideration of the nature of the parties claimed married relationship. This body of evidence – commencing at folio 17 of the Tribunal file, and finishing at an email received from the applicant’s agent dated 28 February 2020 at 9:42am) will be shared with the Department of Immigration (and Minister).

13. In this case the Tribunal could have looked to make a decision on the papers, however, the opportunity to confirm the parties’ relationship was ongoing, was viewed as prudent.

14. To consider this review thoroughly, this Tribunal conducted a public hearing with the visa applicant and sponsor held in Melbourne (conducted via telephone) on Wednesday 8 April 2020.

    ·     The applicant told the Tribunal he first communicated with the visa applicant in July 2015. The sponsor visited the visa applicant in her own country in September 2015. The sponsor travelled to Australia in December 2015. The parties were engaged to each other in June 2016.

    ·     The sponsor and visa applicant have since married (December 2016).

15. At the time the visa applicant applied for the temporary partner visa on 13 December 2016 the parties’ needed to consider the additional criteria applicable to de facto partner visa applications, including the criteria pertaining to existence of the parties’ de facto relationship, which in their case, must have existed since at least 13 December 2015.

16. The requirement that the de facto relationship existed for a period of 12 months immediately before the date of the application is contingent upon the vis applicant not being able to establish ‘compelling and compassionate circumstances for the grant of the visa'.

    An assessment of the visa applicant’s and sponsor’s circumstances are not confined to the time of application and may extend to relevant circumstances at the time of decision. Relevantly, these include the duration of the visa applicant’s relationship with her sponsor, the degree of any hardship (financial and/or mental health) which may flow from requiring the visa applicant to pursue a migration outcome from offshore, and more broadly (perhaps) the contribution (if any) of the visa applicant makes to the Australia community. These are merely examples and not exhaustive.

    Have the parties’ established compelling and compassionate circumstances for the grant of the visa?

17. Having considered all the circumstances of the parties relationship (set out briefly above but discussed in detail and recorded during the public hearing into the matter), and in particular the four year duration of their (now married) relationship, when combined and having had regard to the fact the parties fell short of meeting the additional criteria in r.2.03A(3) by a relatively short period of time, this Tribunal is satisfied these circumstances enliven the waiver on a compelling and compassionate basis. In coming to this decision this Tribunal considered that the financial and emotional hardship that would be flowed from not granting the visa because of the additional criteria under 2.03A(3), in the circumstances of the visa applicant’s and sponsor’s married relationship, satisfy this Tribunal of the existence in this matter of compelling and compassionate circumstances.

18. Accordingly, given all the above, this Tribunal is satisfied the visa applicant has established compelling and compassionate circumstances for the grant of the visa.

    FINDINGS

19. For the reasons stated above, the Tribunal is satisfied that the additional criteria prescribed in subregulation (2) and (3) of r.2.03A are met.

20. On the basis of all the evidence before it, and relevant regulatory considerations made, the visa applicant has satisfied this Tribunal that the parties have a mutual commitment to a shared life to the exclusion of all others, that their relationship is genuine and continuing. The Tribunal is also satisfied that they live together.

21. The Tribunal is satisfied that they are not related by family as defined by s.5CB(4).

22. The Tribunal is satisfied that the requirements of s.5CB(2) are met at the time of application and time of decision. It follows, after careful consideration by this Tribunal, that the visa applicant and sponsor have satisfied this Tribunal that the visa applicant meets cl.820.211(2) and cl.820.221 at the time of decision.

23. 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.

    *  *  *  *  *