Almendras (Migration)

[2024] AATA 696

Almendras (Migration) [2024] AATA 696 (23 February 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Erwin Cabales Almendras

VISA APPLICANT:  Mrs Grace Rebosura Almendras

REPRESENTATIVE:  Mrs Virginia Odtojan (MARN: 9368203)

CASE NUMBER:  2111654

DIBP REFERENCE(S):  BCC2018/4909880

MEMBER:Cheryl Cartwright

DATE:23 February 2024

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Partner (Provisional) (Class UF) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 309 (Partner (Provisional)) visa:

·cl 309.213(1)(a) of Schedule 2 to the Regulations

·cl 309.222(1) of Schedule 2 to the Regulations

.
Statement made on 23 February 2024 at 10:43am

CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – sponsorship requirements – genuine spousal relationship – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5F, 65, 360
Migration Regulations 1994 (Cth), rr 1.20J, 1.20KA, 1.20KB, 1.20KC; Schedule 2, cls 309.213, 309.222

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 Home Affairs on 26 July 2021 to refuse to grant the visa applicant a Partner (Provisional) (Class UF) visa under s 65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 6 November 2018 on the basis of her relationship with her sponsor, the review applicant. At that time, Class UF contained only one subclass: Subclass 309 (Partner (Provisional). The criteria for the grant of this visa are set out in Part 309 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.

3. On 26 July 2021, a delegate of the Minister refused to grant the visa on the basis that the visa applicant did not satisfy cl 309.213(1)(a) because the applicant had not provided evidence that she was sponsored by the sponsor, the review applicant.

4. On 2 September 2021 the Tribunal received an application for review of this decision. Pursuant to s 360(2)(a) of the Act and based on the material before it, the Tribunal considered that it should decide the review in the applicant’s favour. The Tribunal cancelled the hearing that was scheduled for 28 February 2024.

5. The applicant was represented in relation to the review.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is whether the visa applicant is sponsored by the review applicant. The application for a partner visa was received on 6 November 2018 and on 22 September 2020 the Department wrote to the visa applicant, through her nominated representative, requesting further information including evidence that the visa applicant was sponsored by the review applicant. The Department wrote again regarding the request on 9 February 2021 and on 20 April 2021. The Department did not receive the documents it had requested.

8. The delegate found that the visa applicant had not demonstrated that she was sponsored by the review applicant and therefore did not meet cl 309.213(1)(a).

   Are the sponsorship requirements met?

9. Clause 309.213 requires that the visa applicant is sponsored by the review applicant, where such person has turned 18; or where they have not, by the review applicant’s parent or guardian who has turned 18 and is either an Australian citizen, permanent resident or eligible New Zealand citizen (as defined in reg 1.03 of the Regulations).

10. At the time of decision, this sponsorship must have been approved and still be in force. For visa applications made on or after 18 November 2016 the sponsor must also have consented for the Department to disclose to each sponsored applicant any conviction for a relevant offence, unless the conviction has been quashed or otherwise nullified, or where the sponsor has been pardoned with the effect that he or she is taken never to have been convicted of the offence: cl 309.222. Approval of sponsorship is subject to limitations contained in reg 1.20J of the Regulations which sets a limit on the number of people that a person can sponsor in a lifetime and a minimum time that must lapse between each sponsorship, and in reg 1.20KA which sets a limit on the period before which certain Parent visa holders can sponsor another person for a Partner visa. There are further limits imposed by reg 1.20KB in relation to sponsors charged with, or convicted of, certain offences where the visa application was made on or after 27 March 2010 and reg 1.20KC in relation to sponsors convicted of a relevant offence who have a significant criminal record where the visa application was made on or after 18 November 2016.

11. The sponsor is nominated as Erwin Cabales Almendras. A copy of his passport is on file and he is over the age of 18. A sponsorship form 47sp has not been lodged; however, from the evidence provided to it the Tribunal infers that the sponsor, the review applicant, undertakes the obligations of a sponsor as defined in reg 1.20.

12. The Tribunal also considers that the review applicant is the spouse or de facto partner of the visa applicant.

13. The parties provided to the Tribunal a copy of a marriage certificate dated 15 December 2017. The parties were married in Sau Paulo, Laguna Province, in the Republic of the Philippines. 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 5F2(a).

14. On the matter of the financial aspects of the relationship, the Tribunal notes evidence provided in the form of a ‘Deed of Absolute Sale’ dated 10 September 2015, showing the parties purchased a parcel of land in the Municipality of Dasmarinas, Province of Cavite, in the Philippines, demonstrating shared responsibility for their finances.

15. The Tribunal notes that the parties were in a de facto relationship from 2013 and were married in December 2017. In a statement dated 25 January 2024 the parties’ representative states that the parties’ physical separation has had a detrimental impact on the review applicant’s mental health.

16. The Tribunal is of the view that the parties are in a genuine spousal relationship and considers that the review applicant’s sponsorship of the visa applicant should be approved.

17. On the evidence before the Tribunal the requirements of cls 309.213(1)(a) and 309.222(1) are met.

18. 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 309 visa.

    DECISION

19. The Tribunal remits the application for a Partner (Provisional) (Class UF) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 309 (Partner (Provisional)) visa:

    ·cl 309.211(1)(a) of Schedule 2 to the Regulations

    ·cl 309.222(1) of Schedule 2 to the Regulations

    Cheryl Cartwright
    Member