Tang (Migration) [2023] AATA 4625 (10 November 2023)

Last Updated: 29 February 2024

Tang (Migration) [2023] AATA 4625 (10 November 2023)

DECISION RECORD

DIVISION: Migration & Refugee Division

APPLICANT: Miss Chengting Tang

CASE NUMBER: 2308561

HOME AFFAIRS REFERENCE(S): BCC2018/1096997

MEMBER: David Crawshay

DATE OF ORAL DECISION: 10 November 2023

DATE OF WRITTEN STATEMENT: 21 November 2023

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) visa:

• cl.820.211 of Schedule 2 to the Regulations; and
• cl.820.221(1) of Schedule 2 to the Regulations; and
• r.2.03A.

Statement made on 21 November 2023 at 4:37pm

CATCHWORDS
MIGRATION –Partner (Temporary) (Class UK) visa – Subclass 820– parties see their relationship as a long-term commitment – financial aspects of the parties’ relationship points in favour of them being in a genuine and continuing relationship – have been living together at the time of application and at the time of this decision– social aspects of the relationship are consistent with a de facto and married relationship – couple had a mutual commitment to a shared life to the exclusion of all others – applicant had been in the de facto relationship for at least the 12-month period ending immediately before the date of the application – decision under review remitted

LEGISLATION
Migration Act 1958, ss 5CB, 65
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 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 (Cth) (the Act).
2. The applicant applied for the visa on 7 March 2018 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 delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.820.211 because the delegate was not satisfied that the applicant was the de facto partner of the sponsor at the time of application.
3. The applicants appeared before the Tribunal on 10 November 2023 to give evidence and present arguments. The Tribunal also heard oral evidence from the sponsor’s parents, Mr and Mrs Nicola and Maria Marinaccio.
4. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

CONSIDERATION OF CLAIMS AND EVIDENCE

5. The issue in the present case is whether the applicant was the de facto partner of the sponsor at the time of application and whether she continues to be his de facto partner at the time of this decision.

Whether the parties are in a spouse or de facto relationship

6. 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?

7. “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 r.1.09A(3) which is attached to this decision.

Financial aspects of the relationship

8. The Tribunal has considered the information in front of it and makes the following findings. It finds that the parties have no joint ownership of real estate or other major assets, nor do they have any joint liabilities or owe any legal obligations in respect of the other party. These aspects are given no weight.
9. The Tribunal now turns to the extent of any pooling of financial resources and the basis of any sharing of day-to-day household expenses. At hearing, the applicant told the Tribunal that the parties both maintain personal bank accounts and that she transfers money from the sponsor’s account to hers if she required money. The parties submitted some statements from their personal bank accounts that show regular transfers being made from the sponsor to the applicant which were often followed by cash withdrawals of a similar amount. In an undated statement submitted at the Tribunal stage, the parties stated that they have been living in a state of “interdependence”, with the applicant being dependent on the sponsor since her move to Australia owing to her not being able to work. The statement asserted that the sponsor had transferred upwards of $56,000 over 73 transfers for the period from 1 January 2021 to 30 June 2022. The statement also asserted that the applicant had benefited from being able to use the sponsor’s visa card and in-person cash transfers (which were not able to be substantiated through documentary evidence). Earlier statements from a joint bank account from 2015 show that this account was not used in any meaningful way, with many of the transactions being purchases from Apple iTunes or “Digimedia”.
10. The Tribunal has considered the information in front of it. It accepts that the transfers made to the applicant from the sponsor’s bank account were for the purpose of allowing her to pay for expenses, some of which included the parties’ joint expenses. This aspect is given some weight at the time of decision.
11. The Tribunal finds that the financial aspects of the parties’ relationship points in favour of them being in a genuine and continuing relationship at the time of this decision.

Nature of the household

12. The parties have made no claims about having any children of their relationship. The sponsor claims to have three children from a previous relationship. The applicant claims to have no children. No specific claims have been made about whether the applicant has any responsibility for their care or support. This aspect is given very little weight.
13. In terms of the parties’ living arrangements, they had asserted in their undated statement to have been living at various addresses from the time that the applicant first arrived in Australia in 2012 – including addresses in North Melbourne and Altona for one year each, and two addresses in Tarneit for two and three years respectively. The parties claim to have otherwise been living with the sponsor’s parents or in China for short periods. More recently, they claim to have been living at an address in St Albans for the 12-month period before the statement was written.
14. In support of the claims is a residential tenancy agreement which, as noted by the delegate, contained an error inasmuch as the start and end dates were the same (a date in March 2023). It may very well be that this was a typographical error seeing as the agreement was dated 7 March 2022. However, and in any case, the Tribunal has looked beyond this document to the evidence as a whole, including evidence in the form of the parties’ Department movement records. These movement records show that, from when the applicant first entered Australia in 2012 during times when she held temporary visas, the parties have invariably travelled with each other on flights to-and-from China. On some occasions, the applicant or sponsor may have left at a different dates, but the records show them being in the same place for the vast majority of the roughly six-year-period between when the applicant first arrived in Australia in 2012 and when the visa application was made in March 2018. The records show that the parties have remained on-shore since the visa application.
15. The Tribunal has considered this information and accepts based on it that the parties have, for the most part, been living together at addresses in Australia and China and that, when they were not living together, this was before the time of application when the applicant was required to return to China because of her visitor visas. This aspect is given significant weight. It accepts that they have been living together since.
16. The Tribunal finds that the nature of the parties’ household indicates that they have been living together at the time of application and at the time of this decision.

Social aspect of the relationship

17. The Tribunal has had regard to photographs of the parties in the presence of members of both families, including during trips made by the sponsor’s parents and two sons to Shanghai in 2015. Other photographs show the applicant with the sponsor’s daughter during a cruise taken by the family, and still others show the sponsor with the applicant’s mother. The Tribunal is satisfied that the parties have been regarded by their families as being in a de facto relationship for an extended period of time. When asked who the parties would see regularly, the applicant said that they would visit the sponsor’s cousins – Mr John Marinaccio (who is married to a Korean woman by the name of Suki) and Ms Maria Marinaccio. The sponsor spoke to the same details.
18. The applicant submitted a Form 888 statutory declaration from the same Ms Marinaccio dated 28 November 2019 in which she stated that she had first met the applicant in 2012 during a visit here and had come to know her very well since then. Ms Marinaccio wrote that the applicant had integrated extremely well into the family. She said that the parties had been conducting a committed relationship in her presence and in the presence of family.
19. The applicant also submitted declarations from the sponsor’s parents, Mr and Mrs Nicola and Maria Marinaccio, dated 14 July 2023 in which they confirmed the existence and continuation of the parties’ de facto relationship. At hearing, the Tribunal heard from Mr and Mrs Marinaccio who told it that the parties would visit them several times-a-week including for the regular Thursday night dinner. Both told it that the parties love each other.
20. The Tribunal has considered the information in front of it including the above information. Based on photographs, declarations and the testimony of parties and witnesses at hearing, it accepts that the parties have shown themselves as being in a de facto relationship to their immediate families and some members of the sponsor’s extended family. It accepts that this would be important to the sponsor, who appears to enjoy a close relationship with his parents and with several cousins. It accepts that the parties are regarded as being in a de facto relationship by these people. These aspects are given significant weight.
21. Finally, and based on information such as travel documents and photographs showing the parties having made several trips and attending family parties, the Tribunal accepts that they have planned and undertaken some joint social activities. This aspect is given some weight.
22. The Tribunal finds that the social aspects of the parties’ relationship weighs in favour of it being genuine and continuing at the time of application and at the time of this decision.

Nature of the parties’ commitment to each other

23. A signal feature of this matter was the familiarity that the parties had with each other at hearing. Through testimony that was given in a spontaneous and expansive way, they were able to reveal a detailed and intimate knowledge of one another, as well as substantiate each other’s claims about the inception and development of their relationship from 2008.
24. The Tribunal has considered this consistent testimony and has had regard to several photographs showing the parties during the early part of their relationship. It accepts based on this information that the parties met in 2008 at a trade exposition in Guangzhou as the applicant worked for a supplier to the sponsor’s business in China. It accepts that she then acted as an interpreter for the sponsor and that the parties met up thereafter when the sponsor would travel to and stay in Guangzhou for the next six months until the applicant moved to Shanghai in 2009, after which the parties became boyfriend-girlfriend and moved in together (much to the chagrin of the applicant’s parents who did not initially approve of the relationship). It accepts that the relationship developed to a point where the parties regarded themselves as being in a committed de facto relationship in 2012.
25. From these findings, the Tribunal accepts that the parties had been in a committed relationship for around six years at the time of application in March 2018, and for almost 12 years at the time of this decision. It gives this aspect substantial weight in its overall consideration.
26. In terms of the degree of companionship and emotional support that the parties draw from each other, the Tribunal has again had regard to information showing that they have a detailed and intimate knowledge of one another. This included details about their families and, in the case of the applicant, the sponsor’s medical conditions which have been the source of some concern for the parties. In relation to this last point, the applicant told the Tribunal about the care that she provides for the sponsor since he experienced a serious accident in April 2022.
27. When asked what she liked about the sponsor, the applicant replied that when she met him, she liked his “tough look”. She said that he had spoilt her over the years. She said that he would do anything for her. For his part, the sponsor said that the applicant was “very feisty but very loyal”. He said that he would go to China with the applicant in the event that the visa were refused but it would be logistically difficult.
28. The parties have painted a picture of a relationship in which they draw a significant degree of companionship and emotional support from each other. Additionally, the Tribunal accepts that they see their relationship as a long-term one.
29. The information about the nature of the parties’ commitment to each other points very much in favour of them having a mutual commitment to a shared life together to the exclusion of all others and a genuine and continuing relationship at the time of application and at the time of this decision.

Conclusion as to de facto relationship

30. Having taken into account the matters set out in r.1.09A(3) in relation to the definition of de facto relationship under s.5CB(2) and based on the information in front of it and the above findings, the Tribunal accepts that at the time the visa application was made and at the time of this decision the parties have had a mutual commitment to a shared life together as a de facto couple to the exclusion of all others, their relationship has been genuine and continuing, they have been living together, and they are not related to each other.
31. Therefore, the parties were in a de facto relationship for the purposes of s.5CB(2) and the applicant is the de facto partner of the sponsor under s.5CB(1) at that time. The applicant meets cl.820.211(2)(a).
32. The Tribunal is satisfied that the applicant was sponsored by the sponsor at the time of application pursuant to cl.820.211(2)(c)(i). Lastly, the Tribunal accepts that the visa application was made within 28 days after the applicant’s previous substantive visa ceased so she is not subject to the Schedule 3 criteria under cl.820.211(2)(d)(ii). Therefore, the applicant meets cl.820.211(2). Because the applicant was not the holder of a Subclass 771 (Transit) visa at the time of application, she meets cl.820.211.
33. The applicant continues to meet the requirements of cl.820.211(2) at the time of decision. She therefore meets cl.820.221(1). The Tribunal does not have enough information to ascertain whether any sponsorship limitations apply pursuant to cl.820.221(4)(a) and will leave this task to the Department.

Are the additional criteria for a de facto relationship met?

34. Persons claiming to be in a de facto relationship for a partner visa must also meet the additional criteria in r.2.03A. Both members of the couple must be at least 18 years old: r.2.03A(2). In this case, at the time of application, the applicant and the sponsor were at least 18 years old.
35. 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: r.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.
36. 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.
37. The Tribunal has made a finding above that the parties had regarded themselves as being in a de facto relationship since 2012 based on their cogent and compelling testimony given at hearing and, to a lesser extent, contemporaneous photographs that substantiate the claims made by them. It accepts the veracity of their claims and accepts that their de facto relationship had been on-foot for around six years before the time of application. 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.
38. For these reasons the Tribunal is satisfied that the applicant meets the additional criteria prescribed in r.2.03A.
39. 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

40. 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; and
    • cl.820.221(1) of Schedule 2 to the Regulations; and
    • r.2.03A.

David Crawshay
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).