Abrigundo (Migration)

Abrigundo (Migration) [2020] AATA 1645 (28 February 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mrs Violeta Evangelista Abrigundo
CASE NUMBER:  1912148
HOME AFFAIRS REFERENCE(S):          BCC2018/1032840
MEMBER:Steven Griffiths
DATE:28 February 2020
PLACE OF DECISION:  Adelaide
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(2) of Schedule 2 to the Regulations
·cl.820.221(1) of Schedule 2 to the Regulations

Statement made on 28 February 2020 at 11:32am

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – genuine and continuing spouse relationship – joint ownership of assets – pooling of financial resources – family and acquaintances supportive of the relationship – residing together – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5, 65
Migration Regulations 1994, Schedule 2, cls 820.211, 820.221; r 1.15
CASES
He v MIBP [2017] FCAFC 206
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

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 (the Act).
The applicant, Mrs. Violetta Evangelista Abrigundo, applied for the visa on 5 March 2018 on the basis of her relationship with her sponsor, Mr. Mario Gramazio. 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 (the Regulations). The primary criteria must be satisfied by at least one applicant.
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 the visa applicant was the spouse, as defined in s.5F of the Act, of the sponsor.
The applicant appeared before the Tribunal on 27 February 2020 to give evidence, respond to questions and present arguments. The Tribunal also received oral evidence from the sponsor, a daughter of the sponsor and a friend of the parties. The Tribunal hearing was conducted with the assistance of interpreters in the Tagalog, Italian and English languages.
The applicant was represented by her registered migration agent, who attended the hearing.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The Tribunal has taken into consideration all the evidence in the Department of Immigration file, the Tribunal file, additional information provided by the applicant and the oral evidence from the Tribunal hearing.
ISSUE
The issue in the present case is whether the visa applicant is the spouse, as defined in s.5F of the Act, of the sponsor.
BACKGROUND OF THE EVIDENCE
Mrs. Abrigundo was born in Lumbang, Masbate, the Philippines in 1951. Her mother is deceased, with her father born in 1930. She has four sisters and four brothers, with five living in the Philippines and three deceased. She married in 1974, has a daughter and son, born 1966 and 1973, living in the Philippines, and her husband died in 2001. She arrived in Australia on 10 July 2017.
Mr. Gramazio was born in Benevenuto, Italy, in 1933. He arrived in Australia in September 1951, married in 1955, has three sons and three daughters, born between 1956 & 1974, all living in Australia, with his wife dying in 2005. He became an Australian citizen on 29 August 1969.
INFORMATION TO THE TRIBUNAL
Since the Department of Immigration made its decision, the applicant has provided further information to the Tribunal including:-
Migration Agent statement
Various utility bills with cash receipts attached
Sponsor Bank passbook detailing 2 years of transactions
Ambulance service in joint names
ANZ joint name account statement February 2020
Statutory Declaration by Grace Lacey, daughter of sponsor, 19/2/20
Centrelink letter acknowledging marriage
Geriatric Clinic report by Dr. Haylock
Optus Bill for internet for applicant contact with family in Philippines
Facetime photos of discussions with applicant family in Philippines
Salisbury Intercultural program for 2020
Mail addressed to applicant, including Christmas card
Health Screen letter to applicant
Letter from Sponsor Dr Guy Colombo
Migration Agent statement 3/4/19
Photos of parties in social outings
2019 Sponsor Family Christmas celebration
Centrelink letter to applicant, February 2018
Sponsor Last Will and Testament, updated 4/7/19
Sponsor Advance Medical Directive to daughter, July 2019
Sponsor Enduring Power of Attorney to daughter, 4/7/19
Sponsor Statutory Declaration, 18/2/20
Applicant Statutory Declaration, 18/2/20
Statutory Declaration, Giuseppe Cavallaro, 18/2/20
Statutory Declaration, Peter Leombruno, 19/2/20
Statutory Declaration, Melinda Luib, 17/1/20
Statutory Declaration, Zenaida Smoker, 19/2/20
Statement Yolanda Cervantes, 14/2/20
Is the sponsor an Australia citizen, and Australian permanent resident or an eligible New Zealand citizen?
Clauses 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. The Tribunal accepts the documented evidence of the sponsor becoming an Australian citizen by grant on 29 August 1969.
Whether the parties are in a spouse or de facto relationship
‘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 a married couple 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 about 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. Each of the specific matters contained in r.1.15A(3) are effectively questions which must be answered: He v MIBP [2017] FCAFC 206.
Are the parties validly married?
At the time the visa application was made the visa applicant provided evidence of being married to the sponsor with an Indian Marriage Certificate dated 27 December 2017.
The Tribunal has regard to the document and finds that the parties are married to each other at the time of the visa application and this decision, with the marriage valid for the purposes of the Act as required by s.5F(2)(a).
Migration Act 1958, Section 376 Certificate issued
The Tribunal, at the commencement of the hearing, confirmed to the parties that under the provision of the Migration Act 1958, the Minister issued on 17 May 2019 a Section 376 Certificate on one item of correspondence provided in confidence. The Tribunal, as permitted under the Act, indicated it would consider the issue raised in the correspondence as part of the hearing.
CLAIMS AND FINDINGS
Financial aspects of the relationship that must be considered include:-
(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 expense
The Tribunal determines from the documented and oral evidence of the parties, confirmed independently, that at the time of the visa application and this decision, the parties do not have joint ownership of real estate or other major assets.
The Tribunal determines from the documented and oral evidence of the parties, confirmed independently, that at the time of the visa application and this decision, the parties do not have any joint liabilities.
The Tribunal determines from the oral evidence of the parties that at the time of the visa application and this decision, none of the parties has a legal obligation to the other.
The Tribunal accepts the oral evidence of the applicant being a retired person who previously operated a small general store in the Philippines before coming to Australia.
The Tribunal accepts the documented and oral evidence of the sponsor being a retired person who previously owned and operated a farm in the Gawler area growing livestock for sale to markets.
The Tribunal accepts the documented and oral evidence, confirmed independently by the parties, of holding a joint names bank account, noting the account is used rarely as the sponsor believes in paying for all things in cash, this demonstrated by reviewing two years of recent passbook account transactions provided as evidence of regular cash withdrawals to pay for all costs of the parties.
The Tribunal accepts the oral evidence of the parties that the applicant brought no money in to the relationship and holds no assets or bank accounts in the Philippines.
The Tribunal accepts the oral evidence of the parties of the applicant being provided with cash by the sponsor for the purchase any items she, the sponsor and the household require.
The Tribunal determines, at the time of the visa application and this decision, the management of the financial resources of the sponsor to represent the pooling of financial resources, especially in relation to major financial expenses and the sharing of day-to-day household expenses.
Nature of the household aspects that must be considered include:-
(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
The Tribunal accepts the physical, photographic, documented and oral evidence from the parties of the sponsor having 6 adult children, all living in Australia, and the applicant having 2 adult children, living in the Philippines.
The Tribunal accepts the documented evidence of 2 of the children of the sponsor having concerns with the relationship of the parties prior to the marriage, while noting during the hearing that no additional contact had been made in the 2 years and 2 months since the contact.
The Tribunal accepts the documented and oral evidence of the daughter of the sponsor of the position of her siblings now accepting and supporting the relationship of the parties, as they appreciate the significant improvement in the physical and mental health of their father since the applicant commenced living with him, the important role the applicant plays with the life of their father and this being demonstrated by the regular visits they make to the parties home.
The Tribunal accepts the oral evidence of the parties of the regular contact the applicant has with her adult children and their families in the Philippines, noting the sponsor supports that contact, speaks to the children and has encouraged the applicant to travel to the Philippines and spend time with her children and 3 grandchildren.
The Tribunal determines, at the time of the visa application and this decision, the parties have joint responsibility for the care and support of children as any party would with adult children.
The Tribunal accepts the oral evidence of the parties living in the home of the sponsor and determines, at the time of application and this decision, they have lived together since October 2017.
The Tribunal notes the concerns contained within the correspondence in the Department file upon which the Section 376 Certificate was issued, accepting the documented and oral evidence of the daughter of the sponsor who has been a long term care giver to him being concerns
The Tribunal accepts the documented, photographic and oral evidence, confirmed by the parties independently, on the roles each undertakes in the household and determines, at the time of application and this decision, the applicant is responsibility for inside housework and the sponsor undertakes many of the outside responsibilities, with this reflecting the age and physical capacity of the parties.
Social aspects of the relationship that must be considered include:-
(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
The Tribunal accepts the photographic, documented and oral evidence and determines at the time of application and this decision, the parties were married on 27 December 2017, with approximately 30 family and friends in attendance, and represent themselves to other people at all times as being married to each other.
The Tribunal accepts the documented, photographic and oral evidence of family and friends of the parties and determines, at the time of application and this decision, the opinion of family, friends and acquaintances as being supportive of the relationship and marriage.
The Tribunal accepts the photographic, documented and oral evidence, confirmed by the parties independently, and determines, at the time of application and this decision, the parties plan and undertake joint social activities involving church, dancing and occasions with family and friends.
Nature of the commitment to each other that must be considered include:-
(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.
The Tribunal accepts the documented and oral evidence of the families of the parties meeting in July 2017, becoming engaged in August 2017 and marrying on 27 December 2017.
The Tribunal accepts the photographic, documented and oral evidence of the parties living arrangements and determines, at the time of application and this decision, they have lived together since October 2017.
The Tribunal accepts the oral evidence of the parties of their relationship and determines, at the time of application and this decision, a high level of companionship and emotional support is provided by each of the parties.
The Tribunal accepts the oral evidence of the parties and determines, at the time of application and this decision, they have had and continue to have an ongoing commitment to each other and marriage.
The Tribunal considered all the evidence on the circumstances of the parties and determines that the evidence supports a finding that, at the time of the application and this decision, the parties have had and continue to have a mutual commitment to a shared life together as a married couple to the exclusion of all others, with the relationship genuine and continuing.
The Tribunal accepts that the parties have been in a relationship since August 2017, married on 27 December 2017 and determines, at the time of the application and this decision, the parties live together.
On the basis of the above the Tribunal is satisfied that the requirements of s.5F(2) are met at the time of the visa application and this decision. The Tribunal is further satisfied that the sponsor is not prohibited by subclause (2B) from being a sponsoring partner.
The applicant therefore meets cl.820.211(2)(a). The Tribunal accepts the applicant was sponsored and therefore meets cl.820.211(2)(c), and as she was the holder of a substantive visa at the time of application, cl.820.211(2)(d) does not apply. Accordingly, the applicant meets cl.820.211(2). The applicant continues to meet these requirements at the time of decision and therefore meets cl.820.221(1).
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
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(2) of Schedule 2 to the Regulations
·cl.820.221(1) of Schedule 2 to the Regulations
Steven Griffiths
Member

ATTACHMENT - Extract from Migration Regulations 1994
1.15A     Spouse
(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).

[2020] AATA 1645

28 February 2020

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Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

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