He (Migration) [2021] AATA 5325 (7 September 2021)

DECISION RECORD
DIVISION:	Migration & Refugee Division
APPLICANT:	Ms Cuiyi HE
CASE NUMBER:	1904648
HOME AFFAIRS REFERENCE(S):	BCC2015/3209152; CLF2013/44658 
MEMBER:	Mireya Hyland
DATE:	7 September 2021
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; and
•	cl.820.221(1) of Schedule 2 to the Regulations; and
•	r.2.03A.

Statement made on 07 September 2021 at 5:18pm

CATCHWORDS
MIGRATION –Partner (Temporary) (Class UK) visa – Subclass 820 – Federal Court remittal – applicant had been in the de facto relationship for at least the 12-month period – 12-month requirement met – de facto relationship–genuine and committed relationship at the date of decision –decision under review remitted

LEGISLATION
Migration Act 1958, ss, 5, 65, 360
Migration Regulations 1994, rr 2.03A, 1.09, Schedule 2, cls 820.211, 820.221

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

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 to refuse to grant the applicant, Cuiyi He, a Partner (Temporary) (Class UK) visa under s.65 of the Migration Act 1958 (the Act).
2.  	Ms He applied for the visa on 2 November 2015 on the basis of her relationship with her sponsor, Mr Danny LIANG. At that time, Class UK contained 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). 
3.  	The issue in the present case is whether Ms He is Mr Liang’s de facto partner as defined by s.5CB of the Act. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
Background
4.  	Ms He was born on [date] in Guangzhou City, Guangdong Province, China and is 58 years of age. She is a citizen of China. She claims two previous relationships. Ms He married Tianjin Yang, born [date], on 1 February 1988. There is one child of the marriage, her daughter [Ms A] born [date] who is living in Australia. Ms He and Mr Yang divorced on 3 April 2000. Ms He then married Varro Malcolm Shi, born [date], on 28 June 2003. She divorced Mr Shi on 17 March 2006. Ms He was a travel agent and ran a number of travel businesses before she retired in 2017.
5.  	Ms He first entered Australia as the holder of a Short Stay (Visitor) (Class TR) Subclass 676 (Tourist (Short Stay)) visa on 7 February 2000 and departed on 13 February 2000. On 26 March 2001, she was granted a Temporary Business Entry (Class UC) Subclass 456 (Business (Short Stay)) visa and made several business trips to Australia for her travel agency. Ms He was granted a further Subclass 456 visas on 14 May 2002 and continued to make a large number of trips to Australia until her Subclass 456 visa was cancelled on 4 September 2003. On 25 September 2003, she applied for a Partner (Provisional) (Class UF) Subclass 309 (Spouse (Provisional)) as Mr Shi’s spouse, which was refused on 19 November 2003. Ms He was granted further Subclass 456 visas in 2004, 2005, and 2006. She regularly travelled to Australia doing work for a travel agency she set up in Australia in 2005 and stayed up to three months until she was granted a Temporary Business Entry (Class UC) Subclass 457 (Business (Long Stay)) visa on 15 April 2011. Ms He has continued to travel regularly in and out of Australia since 2011, although her travel diminished after 2017 when she retired.
6.  	Mr Liang was born on [date] in Guangzhou City, Guangdong Province, China and is 60 years of age. He is a citizen of China and Australia. He claims two previous relationships. Mr Liang first arrived in Australia on 24 May 1987.  He married Beidi Xin, born in [year], on 14 May 1989 and gained permanent residency through Australia’s previous partner visa program. He was granted Australian citizenship on 17 November 1992.  Mr Liang and Ms Xin divorced on 3 April 1993. He then married Lai Wan Wong, born [date], on 13 September 1993 and sponsored her for a partner visa. There are two children of the marriage, his daughter [Ms B] born [date] and his son [Mr C] born [date]. Mr Liang and Ms Wong divorced on 8 November 2010. Mr Liang does handyman work and light construction.
7.  	Ms He divorced Mr Shi in March 2006 and Mr Liang divorced Ms Wong in November 2010. In May 2011, having been granted a long stay business visa in effect until 2015, Ms He moved into Mr Liang’s house at [address] [Suburb 1]in New South Wales. She then applied for a Partner visa approximately 18 months later claiming that she and Mr Liang first met in Guangzhou through a mutual friend in June 2004 but did not start dating until they decided they wanted to be together in January 2011. This version of their relationship is inconsistent with the Department of Immigration’s (the Department) records that show Mr Liang did not leave Australia between 13 August 2000 and 6 March 2005 so he was not in China in June 2004. However, the records do show that Ms He and Mr Liang have repeatedly departed and re-entered Australia on the same day since 20 January 2006 indicating regular joint travel. The statutory declaration by Choi Chi Pui, Ms He’s business landlord for many years, notes that he first met Ms He’s partner in 2007 and the 2013 statutory declaration by Ping Kwong Wong, Mr Liang’s work colleague, states he had known Mr Liang’s partner for five years, putting his introduction to Ms He by Mr Liang in 2008. 
Procedural History
8.  	This case has a long procedural history. For reasons that are unclear, after making her partner visa application in 2013 based on her relationship with Mr Liang, she withdrew that visa application in 2015 once she had lodged a second partner visa application, also based on her relationship with Mr Liang. According to the delegate’s decision, when asked why she withdrew from her original application Ms He exercised her right to legal professional privilege and refused to tell the delegate. When the Tribunal asked Ms He about the withdrawal she said she does not know why the application was withdrawn. She was simply following her solicitor’s advice. 
The 2013 Application
9.  	On 28 February 2013, Ms He made a combined application for a Partner (Temporary) (Class UK) Subclass 820 and Partner (Residence) (Class BS) Subclass 801 visa. She provided significant documentation that she lived and had a joint account with Mr Liang. 
10.  	A delegate for the Minister of Immigration granted Ms He a Subclass 820 visa on 6 March 2014. That visa ceased on 4 November 2015.
11.  	On 3 July 2015, the Department started processing Ms He’s Subclass 801 permanent residency visa. Interviews were held with both Ms He and Mr Liang on 30 September 2015. On 6 October 2015, the Department sent Ms He a letter setting out adverse information from those interviews, including concerns that she did not satisfy Public Interest Criteria 4020 because she had provided bogus documents and false or misleading information related to ownership of a property at [Suburb 2] and a trip to Tasmania in January 2015. Ms He was given an opportunity to respond to the adverse information by 2 November 2015. 
12.  	On 3 November 2015, Ms He withdrew her Subclass 801 visa application.
The Current Application
13.  	The day before the Subclass 801 withdrawal, on 2 November 2015, Ms He made a second combined application for a Partner (Temporary) (Class UK) Subclass 820 and Partner (Residence) (Class BS) Subclass 801 visa. The delegate refused to grant Ms He the Subclass 820 visa on 11 January 2016 on the basis that cl.820.211(2) was not met because there was insufficient evidence to demonstrate that Ms He is Mr Liang’s de facto partner. 
14.  	An application for review of the delegate’s decision to refuse to grant Ms He a second Subclass 820 visa was lodged with the Tribunal on 25 January 2016 (AAT1600847). Ms He appeared before the Tribunal, differently constituted, on 4 November and 15 December 2016. On 19 April 2017, the differently constituted Tribunal affirmed the decision not to grant Ms He a Partner visa. 
15.  	On 18 May 2017, Ms He appealed the Tribunal’s decision AAT1600847 in the Federal Circuit Court of Australia (SYG1543/2017). On 04 February 2019, in He v MIBP [2019] FCCA 85, the Court made orders that the Tribunal’s decision be quashed and the review application be redetermined according to law. Judge Driver held at [49] that an ‘assumed commercial motivation of Ms He bore critically on the Tribunal’s assessment on the nature of the relationship between Ms He and Mr Liang. This was not raised at the Tribunal hearing.’ In Judge Driver’s view ‘the issue of Ms He’s commercial motivation was a determinative one which should have been raised at the hearing in order for Ms He to understand the issue and respond to it. The failure to disclose the issue as one on which the review would turn amounted to a failure to afford a fair hearing opportunity for the purposes of s.360 of the Migration Act, amounting to jurisdictional error.’
16.  	The matter was returned to the Tribunal by the Department, however an outbreak of the novel corona virus, SARS-CoV-2 (Covid-19), became a global pandemic and in March 2020 the Tribunal stopped holding in-person hearings. Since this matter turns on Ms He’s and Mr Liang’s credibility, for procedural fairness reasons the Tribunal determined that it required a face to face hearing. Ms He was finally able to appear before the Tribunal as currently constituted on 23 June 2021 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Liang. The Tribunal hearing was conducted with the assistance of an interpreter in the Chinese (Cantonese) and English languages. Ms He was represented in relation to the review by her solicitor. The representative attended the Tribunal hearing. Where relevant the evidence given at the hearings is set out below. It is not necessarily set out in the order in which it was given.
CONSIDERATION OF CLAIMS AND EVIDENCE
17.  	At the time of the application Ms He was not the holder of a Subclass 771 (Transit) visa and, for the reasons below, she met the requirements of cl.820.211(2) at the time of the application. Therefore, she satisfies cl.820.211(1) of the Regulations.
18.  	Clause 820.211(2)(a) and cl.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 Ms He claims to be the de facto partner of her sponsor, Mr Liang, who is an Australian citizen: cl.820.211(2)(a)(i). Also, the sponsor must not be prohibited by cl.820.211(2B) of the Regulations from being a sponsoring partner: cl.820.211(2)(a)(ii). Since he is not a woman who was granted a Subclass 204 (Woman at Risk) visa within the five years immediately preceding the application, Mr Liang is not prohibited from being a sponsoring partner: cl.820.211(2B)(a).
Whether Ms He and Mr Liang are in a De Facto Relationship
19.  	'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) of the Act.
20.  	In forming an opinion about whether Ms He and Mr Liang are in a de facto relationship consideration must be given to all of the circumstances of the relationship. This includes evidence of the financial aspects and the nature of the household, as well as the social aspects 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 and the Tribunal has put its mind to, and satisfied itself about, each.
21.  	The Tribunal has considered all the evidence provided by the couple both in the current visa application and the 2013 application, including their consistent oral evidence at the June 2021 hearing about their relationship and commitment to each other. It has also considered their written statements, statutory declarations in support of the relationship going back to 2013, extremely comprehensive bank documentation showing their day-to-day finances, the other financial and legal documentation provided, evidence that they have lived at the same address since 2011 (although the address itself changed from [Suburb 1] to [Suburb 2] for a couple of years), photographs, and their persuasive immigration and travel history. Regarding Ms He’s immigration history, the Tribunal notes that Ms He was regularly granted visas to stay in Australia and although she had a long stay business visa valid until 2015, she applied for her initial Partner visa in 2013. This indicates the relationship was not contrived to allow Ms He to remain in Australia. This is supported by the Department’s records which show that Ms He and Mr Liang have habitually travelled together since 2006 indicating they may actually have been in a relationship since as early as that time.
22.  	Mr Liang owned two properties in [Suburb 1], the one at [address deleted] where the couple live and the one next door. They sold the next door property to his son, [Mr C], although [Mr C] has not actually paid for the property. Ms He and Mr Liang bought a property in [Suburb 2] which was in Ms He’s name and they lived there for two years before selling it and moving back to their [Suburb 1] property. The Tribunal found that although the properties are not held jointly, the couple both discussed them with the Tribunal as if they were joint assets. Ms He also owns two properties in China that generate income that they use as a couple when they travel back to Guangzhou together. The couple told the Tribunal that Mr Liang does not have a good relationship with his ex-wife, who does not like Ms He, and his children have never accepted Ms He so they do not have much interaction. [Ms B] lives in [a suburb] and [Mr C] lives variously at his mother’s, his sister’s, or at the [Suburb 1] property transferred to him by his father. [Ms A] originally came to Australia on a student visa but married an Australian on 9 July 2013 and lives in [a suburb]. Ms He and Mr Liang do see her from time to time and Ms He speaks with her almost daily.
23.  	The Tribunal acknowledges there are concerns about the couple’s credibility, although some of those concerns have been explained to its satisfaction. For instance, clearly there were some difficulties with Ms He’s 2013 application that led her solicitor to advise her to withdraw and the Tribunal is unclear why Ms He would say she met Mr Liang in China at a time when he was demonstratively in Australia. However, the Tribunal finds that the evidence before it, particularly their oral evidence and financial documentation, overwhelmingly support that the financial aspects of their relationship, the nature of their household, social aspects of their relationship, nature of their commitment to each other, and all the other circumstances of their relationship demonstrate that they have a genuine and  continuing mutual commitment to each other to the exclusion of all others: r.1.09A(3).
24.  	The Tribunal finds that Ms He and Mr Liang are not married, they have a mutual commitment to a shared life to the exclusion of all others, their relationship is genuine and continuing, and they live together in [Suburb 1], New South Wales. They are not related by family. They, therefore, meet all the requirements in s.5CB(2) of the Act. Given these findings the Tribunal is satisfied that the requirements of s.5CB for a de facto relationship were met at the time of application. Although some of the matters on which it has relied occurred after that date, it finds they are nonetheless indicative of the couple’s relationship on 2 November 2015. Therefore, Ms He was the de facto partner of Mr Liang and meets cl.820.211(2)(a).
25.  	The Tribunal is satisfied that Ms He was sponsored by Mr Liang who had turned 18 years of age and so satisfies cl.820.211(2)(c). On 6 March 2014, Ms He was granted a Partner (Temporary) (Class UK) Subclass 820 visa that ceased on 4 November 2015. Ms He was the holder of a substantive visa on 2 November 2015 and cl.820.211(2)(d) is not engaged.
26.  	The Tribunal finds that at the time of application Ms He met the requirements in cl.820.211(2) of the Regulations. Since she was the holder of a substantive visa at the time of application and that visa was not a Subclass 300 (Prospective Marriage) visa, cl.820.211(5)-(9) are not relevant to this matter. Likewise, she is not one of the class of persons to whom cl.820.211(2A) applies. Ms He meets cl.820.211 of the Regulations.
27.  	The Tribunal also finds that at the time of this decision Ms He is the de facto partner of her sponsor, Mr Liang, who is an Australian citizen over the age of 18 and so continues to meet the requirements of cl.820.211(2)(a) and (c) of the Regulations. She, therefore, meets cl.820.221(1) of the Regulations.
The Additional Criteria for a De Facto Relationship
28.  	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). The Tribunal finds that in this case, at the time of application, Ms He and Mr Liang were both at least 18 years old. 
29.  	The applicant must also 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; 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. Based on the evidence before it, the Tribunal finds that, although it is likely that Ms He and Mr Liang were in a relationship as early as 2006, they did not start to live together until 2011 as required by the definition of de facto in s.5CB(2) of the Act. However, the Tribunal finds that the evidence clearly shows that they have been in a de facto relationship since 2011. Accordingly, it is satisfied that Ms He had been in the de facto relationship for at least the 12 month period ending immediately before the date of the application.
30.  	For these reasons the Tribunal is satisfied that Ms He meets the additional criteria prescribed in r.2.03A of the Regulations.
31.  	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
32.  	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(1) of Schedule 2 to the Regulations
•	r.2.03A

Mireya Hyland
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).