Yu (Migration)

Yu (Migration) [2023] AATA 570 (30 January 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ms Chunhua Yu
REPRESENTATIVE:  Mr Minghuang Yan (MARN: 1572947)
CASE NUMBER:  2208049
HOME AFFAIRS REFERENCE(S):          BCC2019/4547187
MEMBER:Rachel Westaway
DATE:30 January 2023
PLACE OF DECISION:  Melbourne
DECISION: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

Statement made on 30 January 2023 at 4:13pm
CATCHWORDS
MIGRATION – Partner (Residence) (Class BS) visa – Subclass 801 (Spouse) – commitment to commencing their family – applicant had been in the de facto relationship for at least the 12-month period ending immediately before the date of the application – birth of a child to the relationship – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5, 65, 360
Migration Regulations 1994, rr 1.09, 2.03, Schedule 2, cl 801.221
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 31 May 2022 to refuse to grant the applicant a Partner (Residence) (Class BS) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 11 September 2019 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 (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.
The delegate refused to grant the visa on the basis that the applicant did not satisfy cl 801.221 because the delegate found that the applicant had not provided substantive evidence of cohabitation, social, and financial aspects of the relationship, despite the Department requesting on three occasions (11 August 2021, 27 October 2021, and 10 December 2021) requesting further evidence of the relationship. While the applicant did upload a completed ‘Partner visa application – information for permanent stage processing application form’ on 23 January 2022, the delegate found at the time of decision that these aspects of the relationship had not been substantially presented to the Department and refused to grant the visa.
The applicant was represented in relation to the review by a registered Migration Agent.
The applicant submitted further evidence in support of the current and ongoing spouse relationship, including a statement from the applicant’s representative stating that a response to the Department should have been made when requested but he experienced technical issues uploading the information and he asked that this be considered. In the response which should have been received by the Department, submissions included statutory declarations, evidence of the couple undertaking IVF and the birth of their first child with a Victorian Birth Certificate of Markus Xu (child of the sponsor and the applicant), born on 29 March 2022. In addition to this was evidence of the circumstances of the relationship, evidence of joint bank statements, utility bills, and a bundle of photographs.
In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the visa applicant based on the material before it, pursuant to s 360(2)(a) of the Act.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the applicant meets cl.801.221 which requires that the applicant meets the requirements of subclause (2), (2A), (3), (4), (5), (6) or (8). That is, that the applicant is the holder of a Subclass 820 (Partner) visa and continues to be sponsored for the grant of the Subclass 820 (Partner) visa by the sponsor, and that the applicant is the spouse or de facto partner of the sponsor.
The applicant was granted her temporary Partner (subclass 820) visa on 18 May 2021 after the Department had assessed her visa application and found that she met the requirements for the grant of the visa.
The Department then wrote to the applicant on 11 August 2021 advising that the applicant could now submit information for the permanent stage of her partner visa application. The applicant did not provide the Department with any additional information at this stage.
On 27 October 2021, the Department wrote to the applicant and requested additional information in relation to her Partner (Permanent)(Subclass 801) visa application, covering details of the applicant’s circumstances since she was granted the 820 temporary partner visa, including the financial aspects of the relationship, the nature of the household, the social aspects of the relationship, and the nature of their commitment to each other. This request for additional information was repeated on 10 December 2021 after no response from the applicant was received.
The applicant provided the Department with the following document in response to the Department’s requests for additional information:
·Partner visa application – information for permanent stage processing, dated 23 January 2022
The delegate proceeded to make a decision to refuse to grant the applicant a Partner (Residence)(Class BS) Partner (subclass 801) visa on 31 May 2022.
In an email to the Tribunal on 2 August 2022, and uploaded electronically on 19 August 2022, the applicant’s representative stated that the applicant had provided supporting documents to him to submit to the Department, but that the documents had not been uploaded successfully either due to his own mistake or a system issue. The representative states that he is responsible for the mistake, and that the applicant should not suffer the adverse consequences from his own mistake, and requested priority processing of the review application, which was granted on 19 December 2022.
SPOUSE/DEFACTO (cl 801.221(2))
Whether the parties are in a spouse or de facto relationship
Relevantly to this matter, cl 801.221(2)(c) requires that at the time of this decision, the applicant is the spouse or de facto partner of the sponsoring partner, who must be an Australian citizen or Australian permanent resident or an eligible New Zealand citizen who was specified in the Subclass 820 visa application as the spouse or de facto partner of the applicant. In the present case the applicant claims to be the de facto partner of the sponsor who is a Permanent Resident of Australia and was identified in the related Subclass 820 visa application. On the evidence before it, the Tribunal is satisfied that the sponsor is the ‘sponsoring partner’ of the applicant.
Are the parties in a de facto relationship?
De facto partner' is defined in s 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).
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.
Are the other requirements for a de facto relationship met?
Financial aspects of the relationship
The applicant provided the following documents as evidence of the financial aspects of the relationship:
·Bank of Melbourne Statements of Account in joint names of the applicant and sponsor from September 2019 to December 2022
·Statutory Declaration of the applicant, declared on 21 January 2022
·Statutory Declaration of the sponsor, declared on 21 January 2022
·Updated Love Statement by the sponsor and applicant and translation, dated 12 December 2022
·Representative Submission
The applicant and the sponsor opened a joint bank account with the Bank of Melbourne on 10 September 2019 which remains active with transactions coming in and out of the account. The representative submitted that this account covers the couple’s daily expenses. After giving birth to the couple’s child, the representative submitted that the sponsor is the main financial provider for the couple and responsible for most of the household expenses, as the applicant remains home to care for their child. Prior to the birth of their child, the applicant stated in her statutory declaration that she would help in the sponsor’s restaurant to contribute financially.
In his statutory declaration, the sponsor stated that in March 2018 after they established their relationship, he helped the applicant to pay rent to relieve her stress, and that the applicant would work in his store and help him manage his business, until she moved in with the sponsor in July 2018. He states that the couple ‘put [their] daily expenses together’.
The Tribunal has considered the evidence provided to the Tribunal as current as December 2022 explaining the financial aspects of their relationship and accept that the couple share financial responsibility for each other and their child and have combined their resources.
Nature of the household
The applicant provided the following documents as evidence of the nature of the household:
·Statutory Declaration of the applicant, declared on 21 January 2022
·Statutory Declaration of the sponsor, declared on 21 January 2022
·Updated Love Statement by the sponsor and applicant and translation, dated 12 December 2022
·Representative Submission
·Residential Evidence documents, containing various invoices, letters, bills, and receipts in the names of the applicants and sponsor for the shared address of 4208/22 Jane Bell Lane Melbourne 3000
·Photos of the applicant and sponsor together and with family and friends, and with son Markus
·Victorian Birth Certificate of Markus Xu (child of the sponsor and the applicant), born on 29 March 2022
·Copy of Markus Xu Australian passport biodata page
·Approval of Evidence of Citizenship for Markus Xu, dated 13 September 2022
·Australian Citizenship Certificate for Markus Xu, dated 13 September 2022
The applicant and the sponsor reside together at the address 4208/22 Jane Bell Lane, Melbourne VIC 3000, which is listed consistently on the documents provided to the Tribunal in the applicant’s submissions, including on their joint bank account statements as well as invoices and bills.
The applicant and sponsor have also provided evidence of their son Markus Xu, who was born on 29 March 2022. The applicant and sponsor submit that they have a shared responsibility for the care and support of the child, and that they share child raising duties together in the family home, with the applicant currently staying at home to take care of the baby. The applicant states in her statutory declaration that she is usually responsible for cleaning and laundry, while the sponsor is mainly responsible for cooking, which is confirmed in the sponsor’s statutory declaration.
I have considered the nature of the household and the evidence provided and accept that the applicant and sponsor have provided sufficient evidence to support their claim that they have a shared household together.
Social aspects of the relationship
The applicant provided the following documents as evidence of the social aspects of her relationship with the sponsor:
·Statutory Declaration of the applicant, declared on 21 January 2022
·Statutory Declaration of the sponsor, declared on 21 January 2022
·Form 888 completed by Jingyun He, declared on 3 December 2022
·Form 888 completed by Jianmin Ma, declared on 3 December 2022
·Letter of Support by the applicant’s parents and translation, dated 19 October 2022
·Letter of Support by the sponsor’s mother and translation, dated 18 October 2022
·Representative Submission
·Photos of the applicant and sponsor together and with family and friends, and with son Markus
The applicant has provided numerous photos of the applicant and sponsor spending time together with family members and friends as evidence of the social aspects of their relationship, and the acceptance of their relationship in their social circles. This includes statements by each of their parents, acknowledging the relationship and providing their blessings. Both Form 888 Statutory Declarations stated that the relationship between the applicant and the sponsor is a loving one, and that the relationship is a real and stable one.
In their statement, the applicant’s parents state that the applicant and sponsor met and fell in love at the end of 2017 and eventually moved in together, and that the couple look out for each other. The couple visited China in December 2018 to visit with the applicant’s parents and family member and friends, and to make arrangements for their wedding (which was subsequently postponed due to COVID-19) and returned to Melbourne in January 2019. Her parents go on to state that they frequently communicate via video chat with the couple, that they adore their grandson, and that they are happy their daughter has found her life partner and established her own loving family.
The sponsor’s mother states that the applicant and sponsor have a close relationship, take care of each other and work together to solve problems. She states that she resided with the couple at the residence at 4208/22 Jane Bell Lane, and helped the applicant care for Markus.
In his statutory declaration, the sponsor states that he introduced the applicant as his partner to his father and staff at his restaurant during Chinese New Year in 2018, and that the applicant soon after started helping at the restaurant when she was free. He states that after he became ill in October 2018, all the people around him have witnessed the applicant taking care of him and accompanying him through the difficulties, and affectionately call the applicant ‘boss lady’.
I have considered the social aspects of the relationship based on the evidence provided to the Tribunal and accept that the applicant and sponsor present as a couple and are considered a couple by their family and friends.
Nature of persons’ commitment to each other
The applicant provided the following documents as evidence of the nature of their and the sponsor’s commitment to each other:
·Statutory Declaration of the applicant, declared on 21 January 2022
·Statutory Declaration of the sponsor, declared on 21 January 2022
·Victorian Birth Certificate of Markus Xu (child of the sponsor and the applicant), born on 29 March 2022
·Copy of Markus Xu Australian passport biodata page
·Approval of Evidence of Citizenship for Markus Xu, dated 13 September 2022
·Australian Citizenship Certificate for Markus Xu, dated 13 September 2022
·Referral to Monash Ultrasound for Women for 20-week scan, dated 14 October 2021 and tax invoice
·GP Referral from Dr Hua Zhang to Dr Kenneth Long (the Epworth Centre) for review of pregnancy care, dated 1 October 2021
·Melbourne Pathology request in the applicant’s name
·Referral to Monash Ultrasound for Women for 28-week scan, dated 6 December 2021 and tax invoice
·Copies of various ultrasound images of applicant’s unborn child
·Email from Dr Kenneth Long (the Epworth Centre) to the applicant and sponsor regarding IVF treatment, dated between 15 February 2021 and 14 September 2021
·Monash IVF Documents, Financial Consent and Summary of Treatment
·Epworth Hospital Maternity Details and Patient History
·Updated Love Statement by the sponsor and applicant and translation, dated 12 December 2022
·Representative Submission
·Photos of the applicant and sponsor together and with family and friends, and with son Markus
The couple’s son, Markus Xu, was born on 29 March 2022 after a long-documented IVF process, as evidenced by the documents submitted by the applicant. Markus was granted Australian Citizenship on 13 September 2022 due to his father (the sponsor) being a Permanent Resident of Australia.
In the representative’s submission, it is submitted that the relationship between the applicant and sponsor has lasted for nearly four and a half years, and lists their difficulties in getting pregnant, the IVF procedures and the birth of their son, Markus Xu, as evidence of the genuineness of their relationship and their long-term commitment to each other as de facto partners. In her statutory declaration, the applicant states that the sponsor and the applicant tried for a long time to conceive naturally before eventually choosing to conceive a child via IVF. The applicant states that the sponsor was ‘always by my side’ throughout the process, and that he has already begun planning their son’s schooling.
In his statutory declaration, the sponsor states that from his admission to hospital in October 2018, discharge in February 2019 and throughout his rehabilitation until September 2019, the applicant has ‘always been by my side’ and that he is certain she ‘is the lady I will protect all my life’ and that he is convinced their relationship will last forever. In their ‘Updated Love Statement’ the applicant and the sponsor state that they both have similar views and personalities and want to spend the rest of their lives with each other. They also state that they wish to have another baby in the future to give their son Markus a sibling to grow up with.
I have considered the evidence provided by the sponsor and applicant and considered that their commitment to commencing their family and their IVF evidence and the birth of their son as well as their statutory declarations about how they support each other on a daily basis support their claims that they are committed to each other.
On the basis of the above the Tribunal is satisfied that the requirements of s 5CB(2) are met at the time of this decision. Therefore, the applicant meets cl 801.221(2)(c).
Are the additional criteria for a de facto relationship met?
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.
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.
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. Based on the evidence before the Tribunal, the couple commenced their relationship in July 2018. 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.

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

[2023] AATA 570

30 January 2023

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Immigration

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