Banga (Migration)

[2023] AATA 4626

Banga (Migration) [2023] AATA 4626 (13 December 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Laarni Gammad Banga

REPRESENTATIVE:  Mr George William Lombard

CASE NUMBER:  2000459

HOME AFFAIRS REFERENCE(S): BCC2018/1775033 BCC20181775033

MEMBER:T. Quinn

DATE:13 December 2023

PLACE OF DECISION:  Melbourne

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:

·Clauses 820.211(2) and 820.221(2) of Schedule 2 to the Regulations.

Statement made on 13 December 2023 at 4:25pm

CATCHWORDS
MIGRATION –Partner (Temporary) (Class UK) visa – Subclass 820 – sponsor passed away – sponsor left all of his assets to the applicant – applicant has formed strong bonds to the family and friends of her late partner – sponsor’s will and the applicant’s medical authority are significant indicators of the couple’s commitment to each other – applicant has close cultural ties to Australia – satisfied that the applicant was in a de facto relationship with the sponsor from the time of the application until the time of the sponsor’s death –– decision under review remitted   

LEGISLATION
Migration Act 1958, ss 5CB, 65
Migration Regulations 1994, r 1.09, Schedule 2, cls 820.211, 820.221

CASES

He v MIBP [2017] FCAFC 206

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. On 23 April 2018, the applicant (‘the applicant’ or ‘Ms Banga’) applied for a Partner visa[1] (‘the visa’) based on her marriage to her sponsor, Mr Jaime Benjamin Vallejo (‘the sponsor’ or ‘Mr Vallejo’).[2]

   [1]           Specifically, a Partner (Temporary) (Class UK) visa and a Partner (Residence) (Class BS) visa.

   [2]Pursuant to section 65 of the Migration Act 1958 (‘the Act’). At the time of the applicant’s application, Class BS contained only one subclass: Subclass 801 (Partner) and Class UK contained only one subclass: Subclass 820 (Partner). The criteria for the grant of these visas are set out in Parts 801 and 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.

2. On 19 December 2019, a delegate of the Minister for Home Affairs (‘the delegate’) refused the applicant’s partner visa application, not being satisfied that the applicant and the sponsor (‘the applicants’) were in a de facto relationship as defined by section 5CB of the Act (‘the delegate’s decision’).[3]

   [3]           See clauses 801.221 and 820.211 of the Migration Regulations 1994 (‘the Regulations’).

3. On 27 December 2019, the sponsor passed away.

4. On 9 January 2020, the applicant applied for a review of the delegate’s decision with this Tribunal.[4]

   [4] Pursuant to sections 338(2) and 347 of the Act.

5. On 16 November 2023, the applicant appeared before the Tribunal via video hearing to give evidence and present arguments.  The Tribunal also received oral evidence from Mr Vallejo’s sister, Tina Tsolakidee (‘Ms Tsolakidee’).  There were four other witnesses in attendance at the hearing ready and prepared to give evidence. 

6. The Tribunal exercised its discretion to hold the hearing by video conference.  The Tribunal determined it was reasonable to hold a hearing by video, having regard to the nature of this matter and the individual circumstances of the applicant.  The Tribunal also considered its objective to provide a mechanism of review that is fair, just, economical and quick and the delay that would occur if the hearing were not be conducted by video in exercising its discretion.

7. The applicant was represented in relation to the review and her representative also attended the video hearing of 16 November 2023.

8. I have determined that it is appropriate to remit this application.  I have proceeded to a decision having regard to all the information before me.  In reaching my decision, I have regarded:

   a.the oral evidence and submissions given at the hearing;

   b.all material filed by or on behalf of the applicant; and

   c.other relevant documents on the Tribunal and Department files.

   Not all the evidence and material that has been placed before the Tribunal has been specifically referred to in the reasons set out below. The reasons incorporate reference only to that information found to be fundamental or materially significant to the determination of the issues in the case.[5]

   [5]In this regard, please see Kumar v Minister for Immigration and Border Protection [2020] FCAFC 16 (24 February 2020) at [82] and [96].

   STATUTORY AND LEGAL FRAMEWORK

9. The issue in this case at the time of application was whether the applicant and the sponsor were in a de facto relationship as defined by section 5CB of the Act at the time of application and the time of the delegate’s decision. The issue before me is whether the applicant and the sponsor were in a de facto relationship at the time of the application and whether the applicant:

   a.would have continued to meet the de facto requirements of the Regulations if the sponsor had not died;

   b.would have continued to be the sponsor’s de facto partner had he not died; and

   c.has developed close business, cultural or personal ties in Australia.[6]

   De Facto Partner

   [6]See clause 820.221(2) of the Regulations.

10. Clause 820.211(2) of the Regulations requires that at the time the visa application was made, 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 visa applicant claims to be the de facto of the sponsor, Mr Jaime Benjamin Vallejo (‘the sponsor’ or ‘Mr Vallejo’), who is a Filipino born Australian citizen. Based on the information before me I am satisfied that the sponsor was an Australian citizen since he was a child until the time of his death in 2019.[7]

    [7]           See Department and Tribunal files and evidence at hearing.

11. ‘De facto’ is defined in section 5CB of the Act and provides that a person is the de facto partner of another where the two persons are not in a married relationship but have a mutual commitment to a shared life 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.[8] 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 visa applicant’s and the sponsor’s household and their commitment to each other as set out in clause 1.09A(3), which is extracted in the attachment to this decision. Each of the specific matters contained in clause 1.09A(3) of the Regulations are effectively questions which must be answered.[9] 

    [8] Section 5CB(2)(a)-(d).

    [9]           He v MIBP [2017] FCAFC 206.

12. The matters outlined in clause 1.09A(3) of the Regulations (and any other circumstances of the relationship under clause 1.09A(2)) must be considered and, to the extent relevant, applied to the applicant’s case. Accordingly, I have carefully considered these matters in relation to the material and evidence before me. I recognise, however, that the Tribunal is an independent statutory body. I must therefore reach my own conclusions as to the merits of the applicant’s case, which includes an assessment of how and to what extent each factor of clause 1.09A is relevant and applicable, independently of any conclusions reached by the delegate.

    Provisions where a Sponsor has Died

13. Clause 820.221(2) of the Regulations requires that the applicant would have continued to meet the de facto requirements as set out above at the time of decision if the sponsor had not died and that she would have continued to be the sponsor’s partner if he had not died. The issues for consideration are very similar to those undertaken where the sponsor remains alive. The applicant, where the sponsor has died, has an added onus to demonstrate close business, cultural or personal ties in Australia.

14. Department policy in relation to ‘close business, cultural or personal ties in Australia’ directs decision makers to assess claims on a case-by-case basis. 

15. Business ties may include ownership of businesses if the business operates in Australia.  In assessing whether a business tie is close, the following ought to be considered:

    ·     the extent and nature of the activities of the business;

    ·     the extent of the applicant’s active interest/involvement in their business; and

    ·     the extent, to which the refusal of the Subclass 820 visa would cause economic hardship to that business or to business partners/associates.

16. Cultural ties include the arts, music, or literature.  A decision maker ought to consider an applicant’s participation in or contribution to such cultural activities and the extent of that participation or contribution

17. Personal ties include close relationships with family or friends in Australia and any ongoing responsibilities for the child/ren of the relationship or sponsor’s child/ren.  Such ties can only be considered ‘close’ where the applicant and the relevant person(s) have regular and ongoing contact.  In assessing whether a personal tie is close and the extent of such ties, the following considerations should be explored:

    ·     the applicant’s aggregate periods of residence in Australia and their age during those periods;

    ·     the degree of support shown for the application by relatives and/or friends in Australia; and

    ·     the degree of emotional ties with (including dependence on) those relatives and close personal friends in Australia.

18. Compliance with the prescribed criteria turns on whether or not the criteria have been met and not on the objective existence of that fact.[10]  In determining whether it is so satisfied, decision makers are not required to uncritically accept any or all of the claims  made by the applicants and I have not done so.  A decision maker does not have to have rebutting evidence available before he or she can lawfully hold that a particular factual assertion is not made out.[11]

    [10]          Minister for Immigration and Border Protection v Angkawijaya [2016] FCAFC 5 at 15.

    [11]Selvadurai v Minister of Immigration and Ethnic Affairs and J Good (Member of the Refugee Review Tribunal) [1994] FCA 1105 at [7].

19. If a decision maker does not believe a particular witness, no detailed reasons need be given as to why that particular witness was not believed.  The Tribunal must give the reasons for its decision, not the sub-set of reasons why it accepts or rejects individual pieces of evidence.[12]

    [12]Re Minister for Immigration & Multicultural Affairs; ex parte Durairajasingham [2000] 168 ALR 407 at [67].

20. It is for the applicant, in this inquisitorial process, to put whatever evidence or argument they wish to a decision maker in order to enable that decision maker to reach the requisite state of satisfaction.[13]

    [13]Minister for Immigration & Multicultural Affairs v Lay Lat [2006] FCAFC 61 at [76].

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Timeline[14]

    [14]          See Tribunal file, Department file and evidence at hearing.

21. The sponsor moved to Australia from the Philippines as a young child.

22. The sponsor was married to his wife from 1980 to 1995 and there were two children of that marriage – now aged 39 and 33 years.

23. The applicant married her first husband in 1999 and separated in 2003.

24. The sponsor travelled regularly to the Philippines with his work and had been living there for some time when the applicant and the sponsor first met.

25. The applicants first met on a blind date in July 2015 in the Philippines at which time the applicant was living with family following her separation from her first husband.  The applicant moved in with the sponsor shortly thereafter.

26. The sponsor travelled to Australia in late 2015 for two months to see his brother who had cancer.

27. In 2017, the sponsor was diagnosed with stage 4 cancer and had to travel back to Australia for treatment.  The sponsor had surgery and chemotherapy for his cancer. 

28. In June 2017, the applicant arrived in Australia on a visitor shortly after the sponsor returned to Australia.

29. The applicant applied for and was refused an extension of her visitor visa in 2017.  The applicant withdrew her application for review of this refusal in April 2018, at which time she made the application for a partner visa which is the subject of this review.

30. The applicant returned to her home country for one month in early 2018.

31. The sponsor drew a will bequeathing his entire estate to the applicant on 20 September 2018. 

32. The applicant’s application was refused on 19 December 2019.

33. The sponsor died from cancer on 27 December 2019.  The sponsor’s wishes pursuant to his will have been carried out and the applicant has received his entire estate, including his superannuation.

    Evidence Generally

34. The evidence at hearing was persuasive and consistent.  I found the applicant and her sister-in-law to be forthright, credible witnesses.

    Financial aspects of the Relationship

35. Financial aspects of the relationship including joint ownership of assets; joint liabilities; extent of pooling of financial resources; any legal obligations owed to the other party; and any sharing of day-to-day household expenses must be considered when assessing the financial aspects of the relationship.

36. The applicant was able to give detailed evidence about the way in which she met the sponsor, their living arrangements in the Philippines and in Australia.  She was able to confidently answer questions about their respective work hours and days and the way they travelled to and from work in the Philippines. 

37. The sponsor has left a detailed Will which bequeaths his entire estate to the applicant and explains why he has not bequeathed any of his assets to his two children.  The applicant was able to provide detailed answers about her late partner’s fallings out with his two children.  The sponsor also nominated the applicant as the sole beneficiary of his superannuation, a sum of AUD168,993.79 and his primary asset.

38. The applicant gave evidence of the financial support the sponsor has given her and her family in paying to build a store in the Philippines which is run by the applicant’s mother.  Ms Tsolakidee gave corroborating evidence in this regard.

39. The evidence at hearing was consistent about the applicant and the sponsor’s living arrangements between 2017 and the sponsor’s death in late 2019.  The couple lived with one of the sponsor’s sisters, her husband and her son.  The applicant was able to list these individuals by name and this evidence was corroborated by Ms Tsolakidee.

40. The applicant gave forthright evidence that her late partner’s sister helped the applicant secure a rental property after the sponsor’s death as the applicant did not have work rights.  She clarified that the rental agreement that had been filed presented as though she is living with her sister-in-law but in fact it is signed by her late partner’s sister in order that the applicant could remain living onshore even though she had no work rights. 

41. The evidence at hearing was consistent that the sponsor seemed unaware of unwilling to accept the seriousness of his health.  The applicant explained that she did not apply for a partner visa offshore as the sponsor was in charge of that decision and he had always planned for them to both to return to the Philippines to live near the beach once he was well.

42. I found the financial evidence in this case, in particular the sponsor leaving all of his assets to the applicant and that this has not been contested by any of his extensive family members, very persuasive.  I place considerable weight in the applicant’s favour in relation to the financial aspects of the relationship.

    Nature of the Household

43. Any joint responsibility for the care and support of children, the living arrangements of the persons and any sharing of the responsibility for housework are matters to be considered when assessing the nature of the household.

44. I refer to and repeat paragraphs 36 and 39-41 above.

45. The applicant was able to give detailed evidence about the sponsor’s symptoms and diagnosis with cancer, the reasons he needed to return to Australia and her involvement in his care.  I consider such close observation is reflective of a genuine relationship and a couple living together.

46. The evidence at hearing was consistent that the applicant cared for the sponsor until his death, including sleeping in with him during his palliative care period for the last two weeks of his life.  It was clear that Ms Tsolakidee wished to defer to the applicant in answering details about her late brother’s health and circumstances and that this preference indicated the applicant’s superior knowledge and experience, living in such proximity to the sponsor.  I found this evidence authentic and very persuasive and empathise with the applicant’s loss.

47. The applicants have filed photos together, with and without family and friends and undertaking shared activities. 

48. In the circumstances, I place significant weight in favour of the applicants in relation to the household aspects of the relationship.

    Social Aspects of the Relationship

49. Whether the applicants represent themselves to other people as being in a de facto relationship with each other, the opinion of the applicants’ friends and acquaintances about the nature of the relationship and any basis on which the applicants plan and undertake joint social activities are relevant matters to be considered in determining the social aspects of the relationship.

50. I refer to and repeat paragraphs 37-41 and 46-47 above.

51. I note there were four more witnesses ready and prepared to give evidence at hearing.

52. I note the many statutory declarations field by friends and family in support of this relationship and the many photos of the applicant together with her late husband’s family and friends since his death.

53. The applicant gave evidence at hearing that she was not legally divorced from her first husband partly because she could not locate or contact him and also because obtaining a divorce in the Philippines is very difficult.  I accept her evidence that that relationship has been over for 20 years.

54. It was clear from the evidence before me that the applicant has formed strong bonds to the family and friends of her late partner.

55. Post hearing submissions have been filed, corroborating oral evidence, that the applicant was listed and named as the sponsor’s carer and held medical authority and an advanced care directive.  The applicant gave evidence at hearing about having to make decisions during her late partner’s surgery on his behalf and it is clear from the evidence before me she was authorised to make medical decisions on the sponsor’s behalf and was regularly dealing with is care providers.

56. The applicant was able to show me on her phone during the hearing evidence of her social media account which lists her as in a relationship with the sponsor and has many photos of the couple together.  Post hearing submissions have been filed of the sponsor’s social media account also reflecting a public display of the relationship.   

57. I place significant weight in the applicants’ favour in relation to the social aspects of the relationship.

    Nature of the applicant and the sponsor’s commitment to each other

58. The duration of the relationship, the length of time during which the parties have lived together, the degree of companionship and emotional support that the parties draw from each other and whether the parties see the relationship as a long term one are all aspects to be considered in determining the nature of the parties’ commitment to each other.

59. The applicant had been living with the sponsor for four years at the time of his death and the evidence before me indicates she would have continued to live with him if he had survived and that the couple planned to spend considerable time between Australia and the Philippines if the sponsor had survived.

1. I refer to and repeat paragraphs 37-41, 46-47 and 51-56 above.

2. I consider the evidence before me in relation to the sponsor’s will and the applicant’s medical authority are significant indicators of the couple’s commitment to each other.

3. The applicant became visibly emotional giving evidence about the loss of her partner, his health and his wishes.  She gave evidence that she has remained in Australia to honour her late partner’s dying wishes that she continue to pursue this application and that she remain onshore to put the sponsor to rest by dealing with his remains in the way he has requested.  She also gave evidence that she would have tried to have a child with the sponsor if he had not been diagnosed with cancer.

4. The evidence before me is consistent that Mr Vallejo drew enormous companionship and emotional support from Ms Banga prior to his death. 

5. The applicant was able to answer questions about the sponsor’s criminal history, his disclosure of those offences to her and her view regarding that history. 

6. The evidence is consistent that the couple saw the relationship as a long term one.  It was clear that Ms Banga has formed strong bonds with the people who are close to Mr Vallejo.

7. I place significant weight in the applicants’ favour in relation to their commitment to each other.

   Applicant’s ties to Australia

8. I refer to and repeat paragraphs 14-17 above.

9. The applicant has provided evidence, including letters from her employers, of her work in Australia which has included considerable voluntary work when she did not have work rights onshore.

10. The applicant has been working at Uniting Aged Care since July 2022 and has provided a glowing refence from her employer in this regard.

11. Whilst I accept that the applicant has been a meaningful and hardworking employee, I do not consider her business ties to Australia meet the requirements of the legislation to be conside3red ‘close business ties’.

12. I do not consider the evidence supports a finding that the applicant has close cultural ties to Australia.

13. The applicant has formed very close relationships with her late partner’s family and friends.  One of the sponsor’s sisters had intended to give evidence at hearing but became unwell shortly before the hearing and was admitted to ICU.  The applicant was able to give detailed evidence at hearing about her sister in law’s health, symptoms and treatment.

14. The applicant has filed many photos and it is clear from the evidence before me that the applicant has ongoing, regular contact with her late partner’s family and friends and draws enormous support from these people.  I again note the willingness of Mr Vallejo’s family and friends to give evidence at hearing.  I also note the support the applicant has given Mr Vallejo’s family, most particularly caring for the sponsor in his dying days. 

15. I consider the applicant has developed very close person ties to Australia.

    Conclusions

16. I have carefully considered all of the evidence before me.  I consider the evidence supports a finding that the applicant and the sponsor had a mutual commitment to a shared life to the exclusion of others and that their relationship was genuine and continuing and that they lived together, not separately and apart, on a permanent basis from the time of application until the time of the sponsor’s death.  I am satisfied that the applicant was in a de facto relationship with the sponsor from the time of the application until the time of the sponsor’s death.

17. I find that the applicant:

    a.would have continued to meet the de facto requirements of the Regulations if the sponsor had not died;

    b.would have continued to be the sponsor’s de facto partner had he not died; and

    c.has developed close business, cultural or personal ties in Australia.[15]

    [15]See clause 820.221(2) of the Regulations.

18. The appropriate course is for this matter to be remitted for reconsideration by the Department.

    DECISION

19. 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: Clauses 820.211(2) and 820.221(2) of Schedule 2 of the Regulations.

    T. Quinn
    Member

    
    

    ATTACHMENT - Extract from Migration Regulations 1994

    1.09A     De facto partner and de facto relationship

    (1)For subsection 5CB (3) of the Act, this regulation sets out arrangements for the purpose of determining whether 1 or more of the conditions in paragraphs 5CB (2) (a), (b), (c) and (d) of the Act exist.

    Note 1     See regulation 2.03A for the prescribed criteria applicable to de facto partners.
    Note 2 The effect of subsection 5CB (1) of the Act is that a person is the de facto partner of another person (whether of the same sex or a different sex) if the person is in a de facto relationship with the other person.
    Subsection 5CB (2) sets out conditions about whether a de facto relationship exists, and subsection 5CB (3) permits the regulations to make arrangements in relation to the determination of whether 1 or more of those conditions 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 in a de facto relationship with 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).