Albano (Migration)

[2018] AATA 4442

Albano (Migration) [2018] AATA 4442 (17 September 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Pablita Mapano Albano

CASE NUMBER:  1714907

DIBP REFERENCE(S):  BCC2015/3368753

MEMBER:Adrienne Millbank

DATE:17 September 2018

PLACE OF DECISION:  Brisbane

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 (Temporary)) visa:

·cl.820.211 of Schedule 2 to the Regulations

·cl.820.221 of Schedule 2 to the Regulations.

Statement made on 17 September 2018 at 5:02pm

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner (Temporary)) visa – genuine relationship – live together – joint bank account – shared care of sponsor’s son during visits – provided emotional support to each other – supporting statements from family and friends – personal blog submitted as evidence of the relationship – decision under review remitted for reconsideration

LEGISLATION
Migration Act 1958 (Cth), ss 5CB, 5F, 65
Migration Regulations 1994 (Cth), r 1.15A Schedule 2 cls 820.211, 820.221

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision of a delegate of the Minister for Immigration on 28 June 2017 to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant was born in the Philippines in 1978 and is 40 years old at the time of decision. The sponsor was born in 1964 and is 54 years old at the time of decision. The sponsor has three children, born in 1991, 1993 and 2005, from two previous relationships, the second of which ended in a divorce in 2010. The applicant declared no previous relationships and has no children.

3. The parties established a relationship over the internet around February 2014, and met in person in the Philippines on 22 February 2015. The applicant first arrived in Australia on 23 February 2015, on a Visitor visa, and obtained another Visitor visa on shore on 2 May 2015.  The parties stated in their written statements that they used the applicant’s time on Visitor visas to further develop and explore their relationship before committing to a future together.

4. The applicant applied for the visa on 16 November 2015. At that time, Class UK contained only one subclass: Subclass 820 (Partner (Temporary)). The criteria for the grant of this visa are set out in Part 820 of Schedule 2 to the Migration Regulations 1994 (the Regulations).

5. The Delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.820.211(2)(a). Insufficient evidence was provided to demonstrate to the Delegate that the applicant was the spouse or de facto partner of the sponsor, as defined under section 5F and 5 CB of the Migration Act.

6. The parties have not engaged the services of a migration agent.

7. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether the parties were in a genuine spousal relationship at the time of application and this decision.

9. 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. In the present case the applicant claims to be the spouse of the sponsor who is an Australian citizen.

10. ‘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.

11. The parties provided a copy of their Queensland Marriage Certificate, certifying that they married on 17 April 2015 in the General Registry Office in Brisbane. 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?

12. In a jointly-signed written submission to the Tribunal dated 11 June 2017, regarding documentary evidence of relationship, the applicant and the sponsor referred the Tribunal to their website, where they have documented, with photographs, aspects of their lives together. The blog comprises for the most part pieces, sometimes semi-promotional, written by the sponsor. It often refers to meals cooked by the applicant, and includes links to Filipino recipe books. It includes pieces in which the parties offer advice, based on their experiences, on ‘multicultural relationships’ and Philippines family culture. It also includes pieces about the parties’ house and vegetable garden; their trips and outings together; their families and friends; and life with a young, large dog. It links to the parties’ Facebook sites. The Tribunal has drawn from these sources, as well as Departmental and Tribunal file material, in forming an opinion on the matters below.

    Financial aspects of the relationship

13. Evidence was provided at the time of application that the parties opened a joint bank account in April 2015.

14. In his written statement of 11 June 2017 the sponsor, who is employed as a long-haul truck driver, stated that he transferred funds from his personal account into the joint account, which the applicant drew on for household shopping. He advised that while the applicant had work rights on her Bridging visa, she had not succeeded in finding employment; that he was the sole income earner; that he supported the applicant financially. He advised also that the parties rented their house, and had no joint property or other significant assets, or joint liabilities.

15. In a subsequent blog entry, the sponsor wrote about how the applicant had obtained employment in a Filipino restaurant, and worked evenings. He described how he transported her to and from the restaurant on a motor bike he purchased. In another entry he described the purchase of the motorbike, chosen to meet the parties’ joint needs and budget. In another, he described experiences remitting money to family members of the applicant in the Philippines, including for health services for her mother and brother, following illnesses.

16. The Tribunal is satisfied, on the evidence and information available, that the sponsor’s earnings have gone to the joint benefit of the couple, and that the parties have pooled their financial resources and shared day-to-day expenses as a married couple.

    Nature of the household

17. From the evidence and information available, the Tribunal accepts that the parties have lived together and continue to live together in a rented house, with a vegetable garden and a dog. Blog entries, with photos, describe joint efforts to fence in their dog, and grow vegetables.

18. A copy of a rental agreement, in joint names, from 21 May 2016 to 21 May 2018, was provided to the Tribunal.  The sponsor advised in his written statement of 11 June 2017 that the applicant did the cooking and other housework, and has been the driving force behind the establishment and maintenance of the vegetable garden, while he has worked up to 55 hours a week, and helped with the gardening and other outdoor work.

19. The sponsor’s two older sons are adults, and his younger son, fourteen at the time of review, lives with his mother a two-hour drive from the parties’ house. The parties’ Facebook entries, blog pieces and photos show the parties have shared the care and responsibility for the sponsor’s younger son, during his visits to the household.

20. The Tribunal is satisfied, from the evidence and information available, that the parties have established a joint household as a married couple, where they share the housework and gardening; where they occasionally share the care and support of the sponsor’s youngest son; and where they share the care of a large dog.

    Social aspects of the relationship

21. A statutory declaration, signed on 14 October 2015, was provided by a friend of the sponsor of seven years, who attended the parties’ wedding. He declared he knew that the applicant was aware from the outset of the relationship that the sponsor suffers from multiple sclerosis. He declared that he that he knew the sponsor accompanied the applicant to church on Sundays, and had observed them to be a supportive and accommodating couple.

22. A statutory declaration, signed on 19 September 2015, was provided by a colleague of four years of the sponsor, who advised that he had knew the applicant as the partner of the sponsor; that he has met up with the parties at social ‘get-togethers’; that he had observed them to be happy in each other’s company, and that he followed them on social media.

23. A letter was provided to the Tribunal by one of the sponsor’s older sons, who described barbecue and birthday ‘meetups’ with his father and the applicant since 2015.  He stated he had observed them to be in a genuine relationship: ‘The care they show each other is obvious and real, as evidenced time after time during family meetups.’

24. A letter signed on 11 July 2017 was provided by the managing director of the freight company that employs the sponsor, commending the sponsor as professional, reliable and trustworthy, and giving witness to the parties’ relationship as that of ‘a loving husband and wife’. He wrote: ‘I have socialised a few times with these lovely people and experienced her amazing cooking skills and that she exhibits the same passion in her cooking as her husband does when he comes to work’.

25. On their blog and Facebook sites the parties describe social events and outings, together and with family members and friends. Photos on the blog and Facebook sites and provided to the Tribunal span the couples’ relationship in the Philippines and Australia, providing evidence confirming the contents of the parties’ and the supporting witnesses’ declarations and written statements as to the parties’ relationship, marriage, social lives and activities.

26. The Tribunal is satisfied that the parties are recognised and related to as a married couple by family members, work colleagues and friends, and that they plan and undertake social activities as a married couple.

    Nature of persons' commitment to each other

27. As noted above, the sponsor suffers from multiple sclerosis. The applicant is the youngest of nine children, and, from the evidence and information available, is close to her family in the Philippines. In their written statement provided to the Tribunal, and on their blog and Facebook pages, the parties described situations when they have provided emotional support to family members as well as to each other. As noted above, photos on the blog and Facebook sites and provided to the Tribunal span the couples’ relationship in the Philippines and Australia, and provide evidence confirming the contents of the parties’ and supporting witnesses’ written declarations and statements.

28. In their written statement and on their blog the parties describe discussions regarding the pros and cons of having a child together, at their ages and in their circumstances. They describe also discussions about living in the Philippines when the sponsor retires.

29. The parties have been living together as a married couple for over three years. From the evidence and information available, the Tribunal is satisfied that they have drawn and continue to draw companionship and emotional support from each other, and that they see their relationship as long-term.

    Findings

30. Having regard to the matters above, the Tribunal is satisfied that the applicant and the sponsor have a mutual commitment to a shared life to the exclusion of all others, and that the relationship between them is genuine and continuing. The Tribunal is satisfied that the parties have not lived separately and apart on a permanent basis since their marriage, and that they are living together at the time of this decision.

31. On the basis of the above the Tribunal is satisfied that the requirements of s.5F(2) are met at the time the visa application was made and the time of this decision.

32. Therefore the applicant meets cl.820.211(2)(a) and cl.820.221.

33. The parties are both over 18 years of age; the sponsor is the spouse of the applicant; and the applicant was the holder of a substantive visa at the time of application. Therefore the applicant meets cl.820.211(2)(c), and cl.820.211(2)(d).

34. 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

35. 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 (Temporary)) visa:

    ·cl.820.211 of Schedule 2 to the Regulations

    ·cl.820.221 of Schedule 2 to the Regulations.

    Adrienne Millbank
    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).