1507000 (Migration)

[2016] AATA 4394

1507000 (Migration) [2016] AATA 4394 (8 September 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Ginalyn Manayan

CASE NUMBER:  1507000

DIBP REFERENCE(S):  OSF2012044640

MEMBER:Lisa Lo Piccolo

DATE:8 September 2016

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a Partner (Migrant) (Class BC) visa.

Statement made on 08 September 2016 at 4:00pm

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 on 19 May 2015 to refuse to grant the visa applicant a Partner (Migrant) (Class BC) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 26 November 2012 on the basis of her relationship with her sponsor. At that time, Class BC contained one subclass: Subclass 100 (Partner). 

3. The criteria for the grant of a Subclass 100 visa are set out in Part 100 of Schedule 2 to the Migration Regulations 1994 (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. Relevantly to this matter, the primary criteria include cl.100.221.

4. The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy cl.100.221 because the delegate was not satisfied that the was any evidence that the applicant satisfies the requirements of cl.100.221(2). A copy of the delegate’s decision record was provided to the Tribunal by the applicant.

5. The applicant appeared before the Tribunal on 8 September 2016 to give evidence and present arguments.

6. The applicant was represented in relation to the review by her registered migration agent. The representative attended the Tribunal hearing.

7. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The issue in the present case is whether at the time of decision the applicant continues to be the spouse or de facto partner of the sponsor.

Whether the parties are in a spouse or de facto relationship

1. Clause 100.221 requires that the applicant meet one of five alternative requirements. These include cl.100.221(2) and (2A) which require, amongst other things, that at the time of this decision, the applicant is the spouse or de facto partner of the ‘sponsoring partner’. Unless the applicant was granted a Subclass 309 visa by Ministerial intervention, the ‘sponsoring partner’ is the person who was specified as the applicant’s spouse or de facto partner or intended spouse or de facto partner in the related Subclass 309 application, being an Australian citizen, permanent resident or eligible New Zealand citizen. In the present case the applicant claims to be the spouse of the sponsor, a ‘sponsoring partner’ within the meaning of that term.

2. ‘Spouse’ is defined in s.5F of the Act and provides that a person is the spouse of another where the two persons are in a married relationship. Persons in a married relationship must be married to each other under a marriage that is valid for the purposes of the Act, there must be a mutual commitment to a shared life as husband and wife to the exclusion of all others, the relationship must be genuine and continuing, and the couple must live together, or not live separately and apart on a permanent basis: s.5F(2)(a)-(d). In forming an opinion as to these matters, regard must be had 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.1.15A(3), which is extracted in the attachment to this decision.

3. In the present case, if the parties are validly married, they may meet the requirements of a spousal relationship, but not a de facto relationship. The applicant and his sponsor were married in Republic of the Philippines on 20 October 2010.  A certified copy of the marriage certificate appears on the Department’s file.  On the evidence, the parties were married to each other under a marriage that is valid for the purposes of the Act as required by s.5F(2)(a).

Background

1. The applicant is a 33 year-old female. She is a citizen of the Philippines.  She first came to Australia on 3 November 2013 as the holder of a subclass 309 visa.  The sponsor is a 72 year old Australian citizen. 

2. It is stated in the visa application that the parties first met on 6 June 2010 in the Philippines and married on 20 October 2010.  

3. A Partner (Provisional) Subclass 309 visa was granted to the applicant on 2 August 2013.   On 19 May 2015, the delegate refused to grant the applicant a Partner (Migrant) (Class BC) visa.

4. The applicant informed the Tribunal that the relationship between her and his sponsor has ended.  The sponsor did not attend the hearing. 

5. The Tribunal has had regard to all the circumstances of the applicant’s relationship with the sponsoring partner at the time of its decision, including in particular the considerations set out in r.1.15A for spouse relationships. These considerations relate to the financial aspects of the relationship, the nature of the household, the social aspects of the relationship and the nature of the persons’ commitment to each other.

The financial aspects of the relationship

1. There is no evidence before the Tribunal that the applicant and the sponsor have any joint financial assets.

The nature of the household

1. The applicant gave evidence that she has not seen the sponsor in person for more than five years.  She said that the last time she saw him was in September 2011 in the Philippines.  She said their relationship was “on and off”.  She told the Tribunal that when she came to Australia on 3 November 2013 she flew to Melbourne as per her agreement with the sponsor.  According to the application, the sponsor lives in Deception Bay in Queensland.  She said this was because he said he could not afford to pick her up from the airport and told her to go to her sister’s house and he would meet her there.  She said that he never did come to Wodonga to pick her up which is where she and her daughter stayed with her sister.  She said she returned to the Philippines on 17 November 2013 because her daughter wanted to return to the Philippines.  She did not return to Australia until 9 May 2014.  She has not seen the sponsor at any time since she has lived in Australia. 

2. The applicant told the Tribunal that she begged the sponsor to come and live with her in Wodonga after she got a job but he did not.  She said that she tried to contact him many times but his phone was often off and then his number was disconnected. She has not spoken to him for some years.

3. The applicant said that she and the sponsor have not lived together at any time since the applicant was granted a subclass 309 visa and entered Australia. 

4. The Tribunal accepts that the applicant has not lived with the sponsor at any time. The Tribunal therefore finds that the applicant and the sponsor do not maintain a household together.

The social aspects of the relationship

1. The Tribunal finds that the applicant and her sponsor do not plan and undertake joint social activities.  They have not represented themselves as being in a married relationship since the applicant migrated to Australia in August 2014.  The applicant said that their relationship has been over since at least January 2014.   The Tribunal is satisfied that the applicant does not represent herself to other people as being married to the sponsor.

The nature of the persons' commitment to each other

1. On the evidence before the Tribunal, the relationship ceased somewhere between August 2013 and January 2014.  The applicant said that the delegate’s statement that the relationship had ceased by January 2014 was correct.  The applicant and the sponsor have never lived together.  The sponsor did not appear at the hearing. 

2. The Tribunal finds that at the time of decision the applicant and the sponsor are not in a continuing relationship, and do not have a mutual commitment to a shared life to the exclusion of all others.

3. The Tribunal is not satisfied that at the time of decision the applicant and the sponsor had a mutual commitment to a shared life as husband and wife to the exclusion of all others. The Tribunal is not satisfied that the relationship is genuine and continuing. They therefore do not meet the requirements of s5F(2)(b) and (c) for a married relationship.

4. Additionally, the Tribunal is not satisfied that at the time of decision the applicant and the sponsor live together or do not live separately and apart on a permanent basis. Accordingly, they do not meet the requirements of s5F(2)(d) for a married relationship.

5. The Tribunal therefore finds that at the time of the decision the applicant is not the spouse, within the meaning of s.5F, of the sponsor, who is the person who was specified as the applicant's spouse in the Subclass 100 application. Therefore, the Tribunal finds that the applicant does not meet the criterion contained in cl.100.221(2)(b) for the grant of a Subclass 100 visa.

6. Furthermore, the provisions of cl.100.221(2) or (2A) do not apply to the applicant.

7. As the sponsor has not died, cl.100.221(3) does not apply.

8. As there is no dependent child of the relationship and as there is no evidence of family violence of the form required by the Regulations before the Tribunal, the alternative provisions contained in cl.100.221(4) do not apply. Neither is the alternative criterion in cl.100.221(4A) applicable in this case.

9. Therefore, the applicant does not meet the prescribed criterion contained in cl.100.221(1) and cannot be granted a Subclass 100 visa.

10. Given these findings the Tribunal is not satisfied that at the time of this decision the parties are in a spousal relationship. Therefore the applicant does not meet cl.100.221(2)(b).

11. For the reasons above, the Tribunal finds the applicant does not satisfy the criteria for the grant of the visa.

12. As the second named visa applicant applied on the basis of being a member of the first named visa applicant's family unit, her application is determined by reference to the outcome of the applicant's application.  Since the applicant does not meet the requirements specified in cl.100.221, the Tribunal finds that the second named applicant is unable to satisfy cl.100.321.

DECISION

1. The Tribunal affirms the decision not to grant the applicant a Partner (Migrant) (Class BC) visa.

Lisa Lo Piccolo
Member

ATTACHMENT  - Extract from Migration Regulations 1994

1.15ASpouse

1. For subsection 5F (3) of the Act, this regulation sets out arrangements for the purpose of determining whether 1 or more of the conditions in paragraphs 5F (2) (a), (b), (c) and (d) of the Act 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 married to 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).