Partner Visa Granted After Appealed with AAT
Background Story
The Applicant lodged a valid Onshore Partner visa (Subclass 820/801) application in July 2019.
The visa application had been refused by a Minister delegate under section 65 of the Migration Act (the ‘Act’), on the basis that the Department is not satisfied that the Applicant has fulfilled the requirement under cl 820.211/ 820.221.
It concluded that the Applicant and the sponsor are not in a genuine spousal relationship.
After noticing the visa application had been refused by the Department, the Applicant sought a merits review of the Department’s decision at the Administrative Appeals Tribunal (AAT). The decision of the Department has been remitted by the AAT with directions.
Relevant Law
Clauses 820.211 and 820.221 of Schedule 2 in the Regulation state the applicant of a partner visa application must be the spouse or de facto partner of an Australian citizen at the time the visa application was made, and at the time of the decision is made.
Reg 2.03A has specifically listed the prescribed criteria that apply to de facto partners.
What were the Issues raised at the AAT’s review?
Whether the parties are in a genuine ‘de facto relationship’ – the definition is set under section 5CB of the Act, which is extracted below:
De facto partners
(1) For the purposes of this Act, a person is the de facto partner of another person (whether of the same sex or a different sex) if, under subsection (2), the person is in a de facto relationship with the other person.
De facto relationship
(2) For the purposes of subsection (1), a person is in a de facto relationship with another person if they are not in a married relationship (for the purposes of section 5F) with each other but:
(a) they have a mutual commitment to a shared life to the exclusion of all others; and
(b) the relationship between them is genuine and continuing; and
(c) they:
(i) live together; or
(ii) do not live separately and apart on a permanent basis; and
(d) they are not related by family (see subsection (4)).
AAT’s Considerations
There are four aspects also known as the “four pillars of relationship requirements“ that are required to be met for a partner visa application, in order to show the Department with supporting evidence to prove the relationship of the couple is genuine and continuing.
Financial Ties of the Couple
It is to consider all the submitted evidence of the applicant and the sponsor’s joint asset ownership & liabilities, pooling the financial resources, sharing of the daily household expenses and legal obligations.
The Applicant submitted a joint bank account statement that showed the couple were pooling their financial resources with substantial balance and in-and-out records, registration details of two jointly owned vehicles and a caravan, car insurance policy with the couple’s name on. Some other household bills such as electricity or water statements are also provided along with the application.
The Nature of the Household
It is for the applicant to show the living arrangements, share household duties, care of children and daily routines of the couples.
The AAT found that the evidence submitted was substantial enough to show that there is a long-term living arrangement. The Applicant submitted an extensive number of photographs of the applicants and the sponsor with friends and family, across a wide range of locations and events, plus multiple personal statements and a range of Form 888 – supporting statements from friends and family for the partner visa application. The AAT especially addressed that most of the statutory declarations submitted by the applicant were made by serving or retired members of the police force who have had a long-term relationship with the sponsor as friends and colleagues, where these statements from a police officer are strong evidence in the AAT’s eyes because police officers have understood in the importance of telling the truth – they would not just make up story and be dishonest, which might cause them into trouble. The couples also provided letters and correspondence from the same address that indicates they have been living together the whole time.
Social Aspect of the Relationship
It is to show the social interactions and joint activities of the couples and friends/ family’s recognition of the relationship.
For this aspect, the Applicant provided a wide range of personal photographs of various social activities that they have attended together, travelling overseas and within Australia, and many important life events. The Applicant has also attached supporting statements along with the photographs with descriptions. Statements from family and friends of the couple also indicate that the couple is in a genuine relationship and is well-recognised by the people around them.
The Nature of Commitment
It is about the love story between the applicant and the sponsor – how they first met, the development of the relationship, the period of time that they have been living together, the degree of companionship, emotional support between the couple and whether the couple regards the relationship between them is long-term.
The AAT found that the couple shares a similar view of the commitments that they made for the relationship based on multiple personal statements. As the couple are from different origins, the intersection of the relationship can be proven by the friends and family by written statutory declarations.
The Tribunal has made it very clear in this case that it is aware of the need for and importance of being sensitive to the circumstances and difficulties that the Applicants might often face in different circumstances.
In deciding whether the Applicant and Sponsor are in a de facto relationship, an all-rounded assessment must be given to every circumstance and evidence submitted in support of the relationship. The AAT has noticed that there was a significant period – almost 3 years – between the Department’s decision and the AAT review. There are possibilities of changes in the applicant’s situation and additional supporting evidence was submitted before the Tribunal. Nonetheless, the AAT understands that the Covid 19 pandemic may have caused extra difficulties for the parties to gather substantial evidence to support the case, due to the isolation norms of the society at the time the application was being considered.
Outcome
The Tribunal remitted the application with the direction to the Department for reconsideration that the Application had met the criteria for a Partner visa (Subclass 820). The case was successfully won at the AAT.
Key takeaways
Filing a partner visa application can be highly complicated and hard to handle, even if you think you might have provided sufficient evidence. It is still wise to act proactively and avoid all potential risks. Take your step now and book a consultation with one of our Accredited Specialists today to discuss your matter in detail for tailored and accurate advice.