Baptistella (Migration)

[2020] AATA 3902

Baptistella (Migration) [2020] AATA 3902 (27 July 2020)

DECISION RECORD

DIVISION:  Migration & Refugee Division

APPLICANT:  Mr Gabriel Baptistella

CASE NUMBER:  1903450

DIBP REFERENCE(S):  BCC2018/1472542

MEMBER:  Joseph Francis

DATE AND TIME OF

ORAL DECISION AND REASONS:         27 July 2020 at 11:50 am (WA time)

DATE OF WRITTEN RECORD:                24 September 2020

PLACE OF DECISION:  Perth

DECISION:The Tribunal remits the decision under review with the direction that the applicant meets the following criteria; clause 820.211(2) and therefore, 820.211.

Statement made on 24 September 2020 at 10:52am

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – de facto spouse for 12 months before application made – lived with sponsor’s parents, then in rental apartment – financial, household and social aspects of relationship – nature of commitment – intention to marry – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 5CB(2)
Migration Regulations 1994 (Cth), Schedule 2, cl 820.211(2)

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 9 February 2019 to refuse to grant the visa applicant a Partner (Temporary) (Class UK) Subclass 820 visa under the Migration Act 1958 (the Act).

1. At the hearing on 27 July 2020 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

STATEMENT OF DECISION AND REASONS

1. Mr Baptistella applied for the class UK visa on 30 March 2018 on the basis of his relationship with Ms Simoan Francis who lodged a sponsorship form in support of his application.

1. The delegate assessed the application under subclause 2 of clause 820.211 as the parties claimed to be in a de facto relationship at the time the delegate considered the matter under section 5CB for de facto couples. The delegate did not consider there was sufficient information to demonstrate that the parties were in a genuine de facto relationship, in particular, for a period of 12 months prior to lodging the visa application, as defined in the Migration Act.

1. Mr Baptistella and Ms Francis appeared before the Tribunal on 27 July 2020 via telephone in order to give evidence and present arguments. The Tribunal also heard evidence from Ms Patricia Vice, Ms Francis’s mother.

1. The Tribunal places significant weight on the evidence of Ms Patricia Vice and found her to be a very credible witness.

1. The applicant was not represented during the hearing.

1. The Tribunal had before it a copy of the department’s file containing Mr Baptistella’s visa application and the documentary evidence referred to by the delegate.

1. Mr Baptistella provided the Tribunal a copy of the delegate’s decision record with his application for review. The history of the visa application can be summarised from the delegate’s decision record and the department’s file.

1. Mr Baptistella first arrived in Australia on 2 December 2014 and was subsequently on a student visa at the time he first met Ms Francis. The Tribunal accepts Mr Baptistella first met Ms Francis in person on 9 March 2017 after arranging to meet via an online dating app.

1. The parties commenced their relationship at that time. Mr Baptistella was living in shared accommodation in Scarborough at the time the parties met, and Ms Francis was living in her mother’s house in Success. On 28 March 2017, Ms Patricia Vice allowed Mr Baptistella to move into the family home in Success in order to reside with her daughter.

1. The parties lived with Ms Francis and her family until moving into their own rental apartment in January 2018. The parties have resided together since 28 March 2017 as a de facto couple, now for over three years at the time of this decision.

1. The Tribunal notes neither party has previously been married or in a relationship of significance. The Tribunal notes Mr Baptistella has never been an unlawful non-citizen  during his time in Australia.

1. Assessing this matter, the Tribunal also considered the requirements contained in section 5CB(2) with the following findings.

Financial aspects of the relationship.

1. The parties have pooled finances, especially in relation to the cost of their household, they share their income and expenses through a joint bank account and have a thorough understanding of each other’s financial situation. The Tribunal places weight on the sharing and pooling of financial resources between the parties.

Nature of the household.

1. The parties have spent a significant amount of time together in Australia and have lived together as a genuine couple now for over three years at the time of this decision. The Tribunal accepts that the parties live together and do not live apart on a permanent basis. The Tribunal finds that the parties portray themselves to friends and acquaintances as a genuine de facto couple.

Social aspects of the relationship.

1. The Tribunal accepts the evidence of other parties that the relationship is genuine and ongoing, in particular the evidence of Ms Simoan Francis, the sponsor’s mother.  The Tribunal notes, the written statements provided in support of the relationship by family and friends and accepts the relationship is widely known and accepted by the extended family of both of the parties.

Nature of the commitment.

1. The Tribunal finds the nature of the parties’ commitment to each other is significant, with particular consideration to the amount of time they have now lived together as a de facto couple over three years and their intention to marry in the future.

1. On the basis of the above, the Tribunal is satisfied that the requirements of section 5CB are met at the time the application was made and at the time of this decision. There is no evidence that Ms Francis is prohibited under subclause 2(b) from being a sponsoring partner and the applicant, at the time of this decision, the Tribunal is satisfied the applicant has met clause 820.211 of the regulations. I am satisfied that Mr Baptistella is the de facto spouse of the sponsor as defined under section 5CB of the Migration Act.

1. Given the findings, the appropriate course of action is to remit the application. I am remitting this matter to be returned to the Minister for reconsideration and to be returned to the Minister to consider the remaining criteria for a subclass 820 visa. The decision is the Tribunal remits the application for a temporary class UK subclass 820 visa with the direction that the applicant meets the following criteria; clause 820.211(2) and therefore, 820.211.

DECISION

1. The Tribunal remits the decision under review with the direction that the applicant meets the following criteria; clause 820.211(2) and therefore, 820.211.

Joseph Francis Member