Alunen (Migration)

[2020] AATA 2704

Alunen (Migration) [2020] AATA 2704 (3 June 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Razette Fernandez Alunen

CASE NUMBER:  1800025

HOME AFFAIRS REFERENCE(S):          BCC2016/2742476

MEMBER:James Lambie

DATE:3 June 2020

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) visa:

·cl.820.211(2)(a) of Schedule 2 to the Regulations

Statement made on 03 June 2020 at 5:14pm

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa - Subclass 820 (Partner) – insufficient evidence of spousal relationship – financial – accommodation – social evidence provided – genuine relationship – decision under review remitted

LEGISLATION
Migration Act 1958, ss 5F, 65

Migration Regulations 1994, Schedule 2 cls 820.211(2)(a), 820.221, r 1.15A(3)

CASES

He v MIBP [2017] FCAFC 206

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 and Border Protection 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 applied for the visa on 18 August 2016 on the basis of her relationship with her sponsor. 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. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria.

3. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.820.211(2)(a) because there was insufficient evidence that the applicant was the spouse or de facto partner of the sponsor.

4. The applicant appeared before the Tribunal on 28 January 2020 to give evidence and present arguments. The Tribunal also received oral evidence from Jonathan Nanquil Maquera, the applicant’s husband and sponsor.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in the present case is whether Ms Alunen and Mr Maquera are in a spouse or de facto relationship within the meaning of section 5F of the Act.

   Whether the parties are in a spouse or de facto relationship

7. 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.

8. ‘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?

9. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. The parties have produced a Republic of Singapore marriage certificate recording their marriage at the Singapore Registry of Marriages on 16 September 2014.  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 spouse relationship met?

10. Mr Maquera has been married twice before.  An order for divorce in respect of his second marriage was made on 15 April 2014. A copy of the order was attached to his application. He has one daughter from each of his previous marriages, aged 23 and 13.

11. The parties were introduced online by a mutual friend on 23 April 2013. At the time, Ms Alunen was living in Singapore where she was working as a credit analyst with a large multinational banking company. They say that by 30 April 2013 the relationship had developed to the point that they considered themselves mutually committed. They were yet to meet in person and communicated frequently by Skype, Facebook Messenger and FaceTime.

12. In June 2013, Ms Alunen returned to the Philippines to visit her family and also met Mr Maquera’s parents and siblings.  Mr Maquera travelled to Singapore in July 2013, where the parties met in person for the first time. He stayed with Ms Alunen for 10 days, during which period they also visited Kuala Lumpur, Malaysia and Jogjakarta, Indonesia. Ms Alunen spent the Christmas period of 2013 in the Philippines, celebrating with Mr Maquera’s extended family. Mr Mauqera again visited Ms Alunen in Singapore in March 2014 for Ms Alunen’s birthday.  Copies of all of the relevant boarding passes were submitted.

13. In May 2014, Mr Maquera’s divorce having been finalised, the parties discussed getting married. In June, Ms Alunen registered their wedding date with the Singapore Registry of Marriage for 16 September 2014.  Mr Maquera arrived in Singapore on 9 September 2014 and the wedding took place, as planned, a week later. It was witnessed by two mutual friends of the parties, including the person who introduced them. The following day, they flew to Manila for a separate celebration with their families, relatives and close friends. Their official wedding reception was held in Manila on 21 September 2014, which included a religious blessing. They took a week-long honeymoon and returned to Singapore.  Numerous photographs of all of these events were submitted. Mr Maquera returned to Australia three days later.

14. The parties say they were unable to see each other again for almost a year, owing to their work commitments and limited funds. However, they were able to coordinate their leave in August 2015 and met in Manila, where they stayed with her parents and in a hotel for 10 days. Boarding passes and photographs were submitted.

15. Ms Alunen arrived in Australia on a tourist visa on 10 November 2015 and stayed with Mr Maquera for one month.  During this period, they found and relocated to new rental accommodation which they intended to be the marital home.  She was introduced to Mr Maquera’s friends, attended his church and participated in a number of church activities. She returned to Singapore on 10 December 2015. Boarding passes and photographs were submitted.

16. Ms Alunen returned to Australia on 14 January 2016 and stayed with Mr Maquera until she returned to Singapore on 19 March 2016.  In April, she resigned from her job and renounced her permanent residency in Singapore. She returned to the Philippines to stay with her family. On 16 June 2016, she arrived in Brisbane to resume living with Mr Maquera. In the meantime, she had sent money to him for the purchase of a car in their joint names. The couple have lived together since that time.

    Financial aspects of the relationship

17. In assessing the financial aspects of the relationship, I have had regard to the joint ownership of assets, joint liabilities, the extent of pooling of financial resources, any legal obligations owed by the parties to each other, and any sharing of day-to-day household expenses.

18. The parties submitted their bank statements, including their joint bank account, car insurance statements, telephone accounts, utilities bills and superannuation statements. There joint account, which has been maintained since December 2017, has a small balance, but it appears clear that they have been attempting to use it to accumulate savings from their relatively modest incomes. Their day-to-day expenditure is managed through separate statement and credit card accounts because each has separate family commitments for which they have agreed to be individually responsible:  Ms Alunen sends money home to her family in the Philippines, while Mr Maquera pays child support in respect of his youngest daughter. She contributes to the rent, while the bills are paid primarily from his accounts. Their evidence, supported by the bank statements, is that they exchange money through their accounts with each other as needed.  Other than their cars, they do not have any significant joint assets. Their evidence is that they have acquired household items (the refrigerator, television, microwave and furniture) together. They have separate mobile telephone accounts, paid for separately. Each is a listed beneficiary on the other’s superannuation account: he for 100%, she for 50% with the remainder to be divided between his two daughters. They are joint tenants of their rented residence.

19. Ms Alunen and Mr Maquera are both working full-time in relatively low paid jobs (Ms Maquera having given evidence that she requires further qualifications in order to return to the finance sector in Australia). It is clear from the documentary material they have provided that they share their household expenses, while finding it a struggle to accumulate any significant assets. In their own circumstances, I do not find unusual that they maintain separate bank accounts. I have also taken into account that Mr Maquera took out a significant personal loan in order to maintain the household when Ms Alunen first arrived, a time when she did not work at all for a year and they were finding their finances very difficult.

20. On the basis of all of the evidence presented, I am satisfied that the financial aspects of the relationship are what might be expected in a spousal relationship in the circumstances that the parties have presented.

    The nature of the household

21. In assessing the nature of the household, I have considered any joint responsibility for the care and support of children, the parties’ living arrangements, and any sharing of housework.

22. The parties do not have any children together and, given their ages (she is 43, he is 46), both consider it unlikely that they will, but both say they would love to have a child. As indicated above, Mr Maquera has two children from his previous marriages. The oldest daughter has visited them from Canada and stayed with them from April 2018 to March 2019.  Photographs from this period were submitted.  Mr Maquera’s other former wife does not permit him to see the younger daughter, which causes the couple much sadness.  Ms Alunen, therefore, has never met the younger daughter.

23. Both parties gave consistent evidence as to their living arrangements, which are conventional for a married couple. Their evidence as to the sharing of housework was also consistent: she cooks and he cleans. Other tasks, such as the laundry, are shared. They live in unit accommodation with no garden and no pets.

24. The parties presented as open and candid at the hearing and I, therefore, had little difficulty in accepting their evidence as to the nature of the household. Their circumstances, with the exception of those relating to the daughters, are uncomplicated and the evidence in this respect is consistent with a spousal relationship.

    Social aspects of the relationship

25. In assessing the social aspects of the relationship, I have had regard to whether the parties represent themselves to other people as being married to each other, the opinion of friends and acquaintances about the nature of the relationship, and any basis on which the parties plan and undertake joint social activities.

26. I accept the evidence presented by the parties as to their wedding ceremony in Singapore and celebrations in the Philippines that they represent themselves to other people as being married to each other. There is strong evidence that they are recognised as a married couple by both of their extended families and their wider community.

27. Their evidence, which I accept, is that their social life is centred on their church, Christ New Creation Fellowship in Kedron. In addition to Sunday services, they attend Bible study on Thursdays and prayer meetings on Fridays.  Ms Alunen is a member of the church’s music team, attending practice on Saturdays from 4.00 to 7.00pm. Mr Maquera is part of the transport ministry, which involves driving for the pastor and providing a passenger service for those parishioners who need it. He is also a member of the men’s ministry which, in addition to providing for the pastoral needs of the men in the congregation, involves a variety of social activities, such as cycling days. Pastor Joseph Daniel Monje provided a letter attesting to their active participation in the church and his knowledge of them as a married couple. In addition, Form 888 statutory declarations were provided by Enrique Distor and Aileen Nisperos stating that they knew the couple well, socialised with them, and accepted them as a married couple. A large quantity of well captioned photographs were also produced showing the couple in a variety of church associated social activities, including movie nights, dinners, and social functions.

28. I consider the evidence of the social aspects of the relationship to be credible and compelling.

    Nature of the commitment

29. In assessing the nature of the parties’ commitment to each other, I have considered the duration of the relationship, the length of time they have lived together, the degree of companionship and emotional support they draw from each other, and whether they see the relationship as long-term.

30. The parties met in April 2013 and have considered themselves to be in an exclusive relationship since that time. They were married on 9 September 2014 and have lived together without any significant period of separation since 16 June 2016.

31. Both parties gave consistent evidence of the companionship and emotional support they draw from each other. They were frank about the difficulties they have faced, for example, in trying to manage their finances and dealing with the pain of separation from Mr Maquera’s younger daughter. They also gave evidence of the happiness they have found in this relationship and from the bonds they have formed with each other’s family and friends.  Both gave evidence that they consider their relationship to be for life, sustained by their shared religious faith. This evidence was supported by the context of the photographic material produced and the credible nature of their testimony.

32. On the basis of all the material above I am satisfied that Ms Alunen and Mr Maquera have a mutual commitment to a shared life to the exclusion of others, that theirs is a genuine and continuing relationship, and that they live together on a permanent basis

33. 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.

34. Therefore the applicant meets cl.820.211(2)(a).

35. 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

36. 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)(a) of Schedule 2 to the Regulations

    James Lambie
    Senior 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).