Wang (Migration)

[2023] AATA 489

Wang (Migration) [2023] AATA 489 (15 March 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Xuedong Wang

CASE NUMBER:  2210144

HOME AFFAIRS REFERENCE(S):          BCC2014/1042339

MEMBER:Michael Cooke

DATE:15 March 2023

PLACE OF DECISION:  Sydney

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

·reg 2.03A

Statement made on 15 March 2023 at 2:24pm

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – Federal Court remittal – genuine and continuing relationship – financial, household and social aspects of relationship and nature of commitment – limited finances – length of relationship and mutual support through own and relatives’ accidents and illnesses – copious additional information provided, not available to delegate and previous tribunal – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5CB(2), 65
Migration Regulations 1994 (Cth), rr 1.09A(3), 2.03A, Schedule 2, cls 820.211(2)(a), 820.221(1)(a)

CASE
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 and Border Protection to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 23 April 2014 on the basis of her relationship with her sponsor. 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 (Cth) (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 because the parties did not meet the definition of de facto partner.

4. The matter is before the Tribunal because of a Federal Court order that the decision of the previous Tribunal be quashed, and a differently constituted Tribunal determine the applicant’s review application according to law.

5. The Tribunal has received copious additional information some of which was unavailable to the delegate and the (separately constituted) previous Tribunal (AAT1507451). 

6. The applicant appeared before the Tribunal on 14 March 2023 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsoring partner (Mr Barakat) and two friends of his accompanied by a close friend of the review applicant (Ms Wang): The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin, Arabic (Lebanese) and English languages.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether the parties meet the definition of de facto partner in s.5CB of the Act.

   Whether the parties are in a spouse or de facto relationship

9. 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?

10. '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).

11. 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 reg 1.09A(3) which is attached to this decision. Each of the specific matters contained in reg 1.09A(3) are effectively questions which must be answered: He v MIBP [2017] FCAFC 206.

    Findings and reasons about each matter in reg 1.09A(3)(a), (b), (c) and (d), and any other circumstances of the relationship under reg 1.09A(2):

    ·Financial aspects of the relationship – including joint ownership of assets; joint liabilities; extent of pooling of financial resources; any legal obligations owed to the other party; any sharing of day-to-day household expenses.

12. The parties have evidenced their (diminished) finances in their recent submissions and oral evidence. The applicant is a pensioner living in public housing and the applicant has no present-day income as she is not allowed to work. Despite this, they have evidenced that they have pooled their meagre financial resources and share day-to-day household expenses - whenever possible. They have a had a joint bank account since 2014 into which any funds they gather are invested (such as car accident compensation they both received on separate occasions and a significant win ($5000) on a poker machine). The sponsor’s children have assisted the parties with funds due to the applicant’s loss of work rights on her most recent Bridging Visa E. They have evidenced joint ownership of assets by contribution - being the family car. Their joint liabilities and legal obligations are made up of utilities and car maintenance spending. The sponsor had to forgo some of his pension benefit entitlement due to being in a declared co-habiting relationship with the applicant.

13. The Tribunal is satisfied that the parties have a de facto partner financial relationship.

    ·Nature of the household – including any joint responsibility for care and support of children; parties’ living arrangements; and any sharing of housework.

14. The parties explained in the hearing that they share housework though since not being able to work the applicant does the majority of the tasks. They explained in oral evidence that they co-habit and live conjugally in a one-bedroom Housing Authority flat. They have no children but aspire to having children (the applicant insisted in oral evidence) and she had investigated this possibility.

    ·Social aspects of the relationship – including whether parties represent themselves to other people as being in a de facto relationship with each other; the opinion of friends and acquaintances about the nature of the relationship; and any basis on which the persons plan and undertake joint social activities.

15. The parties’ witnesses gave significant evidence of their recognition of the parties’ de facto relationship by friends and family. They outlined that - due to the size of their flat - they largely socialised outdoors or with the sponsor’s grown-up daughters who were very close to the applicant. For instance, they visit the sponsor’s daughters every weekend. One of the witnesses (a long term friend) owns a Lebanese restaurant and he indicated that they often came to his restaurant to socialize. The applicant indicated she cooked Chinese food which was also shared with the sponsor’s extended family.

16. The Tribunal is satisfied that the social aspects of the relationship are indicative of a de facto relationship.

    ·Nature of persons’ commitment to each other – including duration of the relationship; the length of time they have lived together; degree of companionship and emotional support they draw from each other; and whether they see the relationship as long-term.

17. The parties have stayed together since 2014 in a continuous co-habitational relationship. They have indicated as well that it is a long-term commitment. In 2017 the applicant was hospitalised after a car accident and the sponsor suffered a similar fate this year. A Tribunal witness and the parties themselves indicated they both provided emotional support to each other on these occasions. The parties also suffered a trauma when the applicant’s father lost a leg in an industrial accident. Her mother was ill as well. The sponsor sent some of his meagre funds to assist the applicant’s mother in her predicament. He had also prepared to make a trip with the applicant to China to see her mother when she fell ill. The applicant was unable to do so because of visa prohibition from travelling. Her mother later died without her being able to say goodbye. The applicant indicated in oral evidence that the sponsor was a tower of strength and a boon companion when facing this double tragedy – all the while away from her motherland and family.

18. The Tribunal has examined the nature of persons’ commitment to each other and finds that it exhibits a genuine de facto relationship.

    ·Any other circumstances of the relationship.

19. The parties have gone to extraordinary lengths to prove their genuineness and have produced probative evidence not previously available.

    ·Whether the parties are related by family.

20. The parties are not so related.

21. The Tribunal has considered the full circumstances of the parties’ relationship and makes the following findings on these matters against s 5CB(2)(a)-(c) of the Act.

22. The parties have a mutual commitment to a shared life to the exclusion of others; a genuine and continuing relationship; and they live together and not separately and apart on a permanent basis, and the parties are not related by family.

23. 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 the time of this decision.

24. Therefore, the applicant meets cl 820.211(2)(a) and cl 820.221(1)(a) of the Regulations.

25. The Tribunal also makes the following findings about the additional time of application sub-criteria which are met. The applicant was and is still sponsored by her sponsoring partner and meets 820.211(2)(c). Furthermore, she was a substantive visa holder at time of application and, thus, met both the Schedule 3 requirements in cl 820.211(2)(d) as well as the additional time of decision sub-criteria for sponsorship (cl 820.221)(4).

    Are the additional criteria for a de facto relationship met?

26. Persons claiming to be in a de facto relationship for a partner visa must also meet the additional criteria in reg 2.03A. Both members of the couple must be at least 18 years old: reg 2.03A(2). In this case, at the time of application, the applicant and the sponsor were at least 18 years old.

27. 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: reg 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.

28. The applicant has previously provided evidence that the relationship is registered under NSW law as a kind of relationship prescribed in the Acts Interpretation (Registered Relationships) Regulations 2008: reg 2.03A(5). Accordingly, the 12-month requirement does not apply.

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

30. 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

31. 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

    ·reg 2.03A

    Michael Cooke
    Senior 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).