1510512 (Migration)

[2016] AATA 4491

1510512 (Migration) [2016] AATA 4491 (6 October 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Diana Rose Escalante

CASE NUMBER:  1510512

DIBP REFERENCE(S):  OSF2012044309

MEMBER:Wendy Banfield

DATE:6 October 2016

PLACE OF DECISION:  Sydney

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

Statement made on 06 October 2016 at 7:33pm

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 20 July 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 11 October 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.

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 sponsor had advised the Department the relationship had broken down and the applicant did not respond to communications.

5. The applicant appeared before the Tribunal on 21 July 2016 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor Mr Michael Anderson.

   Background

6. The applicant is a citizen of the Philippines and is 27 years of age. She came to Australia as the holder of a Subclass 309 Partner (Provisional) visa on 11 October 2012. The sponsor is an Australian citizen who is currently aged 39. The applicant and sponsor met in the Philippines and married there on 31 May 2012.

7. Since the applicant arrived in Australia, she and the sponsor have separated and reconciled their relationship numerous times. At the time of the delegate’s decision on 20 July 2015, the sponsor had advised the Department the relationship had ceased. The applicant was asked to contact the Department and advise whether the relationship had resumed which she did not do.

8. At the time of the Tribunal hearing, the applicant and sponsor had reconciled and were living together again. Both parties attended the hearing and gave evidence in support of the visa application.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in the present case is whether the applicant and sponsor are in a genuine and continuing spouse relationship.

    Whether the parties are in a spouse or de facto relationship

11. 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.

12. ‘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.

    Are the parties validly married?

13. If the parties are validly married, they may meet the requirements of a spousal relationship, but not a de facto relationship. 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). 

    Are the other requirements for a spousal relationship met?

14. The applicant and sponsor have a history of relationship breakup followed by reconciliation. At the time of the Tribunal hearing, they claimed to have reconciled and that the relationship was continuing.

15. Following the hearing, on 20 August 2016 the sponsor wrote to the Tribunal and advised his relationship with the applicant had broken down and the parties had separated permanently. On 20 September the applicant was invited to comment or respond to the information. The applicant replied on 4 October 2016 confirming she and the sponsor are no longer living together and that she had been unable to remain in the relationship.

16. Based on the visa applicant’s circumstances at the date of decision, the Tribunal finds that the parties do not satisfy s5F of the Act as they do not have a mutual commitment to a shared life as husband and wife to the exclusion of all others and the relationship between them is not genuine and continuing. They live separately and apart on a permanent basis and therefore the applicant does not meet cl.100.221

17. Given these findings the Tribunal is not satisfied that at the time of this decision the parties are in a spousal relationship.

18. Therefore the applicant does not meet cl.100.221(2). There is no evidence before the Tribunal that the alternative criteria in cl.100.221(3) and (4) (death, family violence, child exceptions) are met.

19. For the reasons above, the applicant does not satisfy the criteria for the grant of the visa.

    DECISION

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

    Wendy Banfield
    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).