BALLESTEROS (Migration)

[2018] AATA 5223

BALLESTEROS (Migration) [2018] AATA 5223 (18 December 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Ramon BALLESTEROS

VISA APPLICANT:  Mr Aaron Monponbanua

CASE NUMBER:  1729070

HOME AFFAIRS REFERENCE(S):           BCC2017/3860965

MEMBER:Linda Holub

DATE:18 December 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Visitor (Class FA) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 600 (Visitor) (Class FA) visa:

·cl.600.232 of Schedule 2 to the Regulations.

Statement made on 18 December 2018 at 2:54pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 – Sponsored Family stream – sponsorship eligibility – sponsor is de facto partner – evidence provided – decision under review remitted

LEGISLATION

Migration Act 1958, ss 5CB(2), 65, 338(5)(b), 338(7)(b)(c)
Migration Regulations 1994, Schedule 2, cl 600.232, rr 1.09A(3), 1.12

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 14 November 2017 to refuse to grant the visa applicant a Visitor (Class FA) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 19 October 2017. At the time the visa application was lodged, Class FA contained one subclass, Subclass 600 (Visitor), with a number of different streams. In this case the applicant applied for the visa seeking to satisfy the primary criteria in the Sponsored Family stream.

3. The criteria for a Subclass 600 visa are set out in Part 600 of Schedule 2 to the Migration Regulations 1994 (the Regulations). Relevantly to this case, they include cl.600.232 which requires the visa applicant to satisfy the Minister that the visa applicant is sponsored by a settled Australian citizen, or a settled Australian permanent resident, who is at least 18 and a relative of the applicant.

4. The delegate refused to grant the visa on the basis that the visa applicant did not meet cl.600.232.  The Decision Record states that in accordance with regulation 1.03, the following individuals may also sponsor a subclass 600 applicant:  a grandparent, grandchild, aunt, uncle, niece or nephew, or a step-grandparent, step-grandchild, step-aunt, step-uncle, step-niece or step-nephew.  The decision notes that the nominated sponsor, Ramon Ballesteros is the applicant’s claimed de facto partner, he does not come under the definition of ‘relative’ listed above.  Ramon Ballesteros

5. The review applicant appeared before the Tribunal on 5 December 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant. The Tribunal hearing was conducted with the assistance of an interpreter in the Tagalog and English languages.

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

BACKGROUND

1. The visa applicant is the claimed defacto partner of the review applicant.  He is a citizen of the Philippines and was born in August 1997.

RELVANT LAW

1. Subsection 338(7)(b) of the Act states that a decision to refuse to grant a non-citizen a visa is reviewable if the non-citizen intends to visit an Australian citizen or an Australian permanent resident, who is a parent, spouse, de facto partner, child, brother or sister of the non-citizen.

2. Subsection 338(7)(c) requires that the particulars of the relative that the applicant intends to visit are included in the visa application. The review applicant was included in the visa applicant's application and described as his de facto spouse.

10) Subsection 338(5)(b) of the Act requires the non-citizen to be sponsored by an Australian citizen or permanent resident in accordance with the visa criteria. As noted above, the criteria for the grant of the visa require the applicant to be sponsored by a relative or close relative. 'Close relative' as defined in r.1.12 means a spouse, de facto partner of the person; or a child, parent, brother or sister of the person; or a step-child, step-brother or step-sister of the person.

11) A person is in a de facto relationship with another person to whom they are not married if they have a mutual commitment to a shared life to the exclusion of all others, the relationship is genuine and continuing, the couple live together, or do not live separately and apart on a permanent basis, and the couple are not related by family: s.5CB(2). In forming an opinion whether they are in a de facto relationship, consideration must be given 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 the nature of their commitment to each other as set out in r.1.09A (3) of the Regulations.

CONSIDERATION OF CLAIMS AND EVIDENCE

12) In considering whether the visa applicant is sponsored by his de facto partner, the Tribunal has considered the circumstances of the relationship, including the nature of persons' commitment to each other including 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.

13) At the hearing the review applicant stated that he and the visa applicant had met online in February 2017 after which they started chatting through Facebook Messenger.  The visa applicant gave consistent evidence regarding how they met.  The review applicant went to the Philippines about three months later in May 2017 and spent three weeks there.  The review applicant has a family home in the Philippines and the visa applicant stayed with him in the home.  During that time the parties spent time together the review applicant met the visa applicant’s family.  Written evidence was provided showing they travelled together for one week.

14) The review applicant returned to the Philippines for Christmas 2017 and the parties spent five weeks together.  During this time, they also went to Cambodia, Malaysia and Taiwan together.  This was confirmed in written evidence submitted to the Tribunal.

15) In respect of the emotional support and companionship they provide each other, the Tribunal heard that the parties talk to each other every day and that they generally start and end the day with some sort of contact.  They described the sort of things they discussed.  When asked about the tensions that arise in the relationship, the review applicant stated that he sometimes gets jealous if the visa applicant doesn’t respond to messages or if he is out late.  Similarly, the visa applicant stated the review applicant sometimes gets jealous of his friends and also if there’s a problem with the network and is unable to connect it will bother the review applicant. 

16) The parties have committed to a long term relationship but have not decided if it will involve marriage. 

17) The Tribunal considered the social aspects of the relationship including 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 persons’ plan and undertake joint social activities.

18) The Tribunal heard consistent evidence that the families of both parties are supportive of the relationship.  Consistent evidence was provided in relation to when the review applicant met the visa applicant’s family during his first visa to the Philippines.  They described the circumstances of the meeting.  At hearing, the Tribunal was told that the review applicant’s parents travelled from Australia to the Philippines and during their visit they met the visa applicant.  There was some minor discrepancy as to the month this occurred.  However, the Tribunal did not place significant weight on this in the light of the overall consistency in the evidence.

19) Following the hearing, the Tribunal received a Statutory Declaration from the review applicant’s mother.  It attests to the genuineness of the relationship and refers to her and her husband’s visit to the Philippines in April 2017 during which time they met the visa applicant.  This was consistent with the oral evidence provided at hearing.  The supporting statement provides some detail as to the level and type of communication the review and visa applicant have together.

20) The Tribunal was also provided with a supporting statement in a Statutory Declaration from an employee of the review applicant’s.  She states that during working hours the review and visa applicant regularly speak to each other and refers to other aspects of their relationship 

21) The Tribunal has considered the financial aspects of the relationship including joint ownership of real estate and of major asset any joint liabilities; the extent of pooling of financial resources; any legal obligations owed to the other party; and the basis of any sharing of day-to-day household expenses.

22) Both the visa applicant and the review applicant stated that the review applicant has been supporting the visa applicant financially.  The Tribunal was told that the visa applicant used to work within the mayor’s office but more recently has only had casual jobs and has undertaken some hospitality training.  He has been working in the market and while he earns some money the review applicant essentially supports him.  The review applicant paid for their travel within Philippines and externally and covers their costs when he is in the Philippines.  The Tribunal was provided with receipts of remittances from the review applicant to the visa applicant on a monthly basis since they met in February 2017.

23) The Tribunal considered the nature of the household including any joint responsibility for care and support of children, parties' living arrangements and any sharing of housework. 

24) The Tribunal is cognisant of the fact that the review applicant resides in Australia and the visa applicant resides in the Philippines. As they do not presently have a joint household this factor has been given less weight in consideration of whether the visa applicant is the de facto partner of the review applicant.  Notwithstanding this, the Tribunal has regard to the fact that the parties have spent eight weeks together since they first met less than two years ago.  The Tribunal heard consistent evidence that the review applicant does most of the cooking and that the visa applicant provides some assistance but generally he does most of the cleaning.

25) In the light of the oral and written evidence, the Tribunal is satisfied the sponsor and the visa applicant are in a de facto relationship, are not married and have a mutual commitment to a shared life to the exclusion of all others, the relationship is genuine and continuing, the couple live together, or do not live separately and apart on a permanent basis, and the couple are not related by family: s.5CB(2).

26) For the above reasons the Tribunal is satisfied that the visa applicant is sponsored by a prescribed person or organisation and finds that the requirements of cl.600.232 are met.

DECISION

27) The Tribunal remits the application for a Visitor (Class FA) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 600 (Visitor) (Class FA) visa:

·cl.600.232 of Schedule 2 to the Regulations.

Linda Holub
Member