Bilston (Migration)

[2021] AATA 845

Bilston (Migration) [2021] AATA 845 (18 February 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Jennifer Marinas Bilston

CASE NUMBER:  1829475

HOME AFFAIRS REFERENCE(S):         BCC2017/4445435

MEMBER:Steven Griffiths

DATE:18 February 2021

PLACE OF DECISION:  Adelaide

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:

·r.1.20KC(4) to the Regulations; and

·cl 820.211(2) of Schedule 2 to the Regulations; and

·cl 820.221(1) of Schedule 2 to the Regulations.

Statement made on 18 February 2021 at 3:55pm

CATCHWORDS

MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – sponsor’s significant criminal record – waiver provisions – sponsor’s good relationship with the applicant’s children – shared financial resources and commitments – joint travel – joint social activities – decision under review remitted          

LEGISLATION

Migration Act 1958, ss 5, 65
Migration Regulations 1994, Schedule 2, cls 820.211, 820.221; rr 1.03, 1.09, 1.15, 1.20

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 Home Affairs to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 24 November 2017 on the basis of her relationship with her sponsor, Mr. Leon Paul Bilston. 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 (Cth) (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 Regulation 1.20KC as the sponsor has a significant criminal record  including a period in jail, and therefore could not sponsor a partner visa application.

4. The parties were assisted by the registered migration agent, Ms. Cyril Gabito of Gabito Lawyers.

5. The applicant appeared before the Tribunal on 18 February 2021 to give evidence, respond to questions and present arguments. The Tribunal also received oral evidence from the sponsor, with the migration agent also taking part.  

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The Tribunal has taken into consideration all the evidence in the Department of Home Affairs file, the Tribunal file including additional information provided by the applicants and the oral evidence from the hearing.

   ISSUE

8. The issue in the present case is whether the sponsor is able to sponsor a partner visa application, given him history of offenses, and if the applicant is the spouse, as defined in s.5F of the Act, of the sponsor.

   BACKGOUND OF THE EVIDENCE

9. Mrs. Bilston was born in the Philippines in 1977. Her mother is deceased, with her father, born 1948, and 3 brothers and 2 sisters, all living in the Philippines. She has 2 children from a previous relationship, a son born 2003 & a daughter born 2005, who live in the Philippines with her father and a sister and they are not part of the visa application. She arrived in Australia on 28/4/17, having been granted a Visitor 600 Visa on 29/3/17 and to cease 28/7/17, which was renewed 1/9/17 and to cease 31/12/17. She has been on a series of Bridging Visa’s from 24/11/17.

10. Mr. Bilston was born in Australia in 1969.  His mother is deceased, with is father, born in 1946, and 3 sisters and 2 brothers, all living in Australia. He has a daughter, born 1991, from a previous relationship, and she lives in Australia.

    BACKGROUND OF THE EVIDENCE

11. Since the Department made a decision, the parties have provided further information to the Tribunal including:-

    Review application, 9/10/18

    Sponsor National Police Certificate, 28/3/18

    Queensland Border Pass, 28/7/20, for applicant and sponsor

    Queensland accommodation booking in sponsor name, July 2020

    2 photos of applicant in Queensland

    Parties details of holiday at Kangaroo Island in April 2021

    Statement Josie Marinas, sister of applicant and carer of 2 children, 31/1/21

    Statutory Declaration by Sponsor, 7/2/21, on relationship

    Statutory Declaration by applicant, 9/2/21, on relationship

    10 photos of the parties with family and friends

    Parties flight details overseas May / June 2019

    9 photos of the parties in the Philippines

    Money transfers – 29,280 on 9 April, 10,664.88 on 27 April, 35,400 on 1 June, 7,128 on 11 June, 35,430 on 4 July, 20,750.40 on 6/12/18, 22135.44 on 23/12/18, $ 8,281 Aust $ in 11 transfers 22/11/19 to January 2020

    Statutory Declaration, father of sponsor, 1/2/21

    Statement by brother of sponsor, not dated

    Statement by sister of sponsor, not complete 

    Statement by Stella Sabarre, friend of parties, 27/1/21

    Statement by Dawn Pincott, friend of parties, 12/12/19

    5 photos of the parties with friends, Australia and Philippines

    Money transfers by applicant – 8 transfers totalling $ 6700 Aust May and June 2020, 3 transfers totalling $ 2853 September to November 2020

    Parties joint name bank account 7/12/18 to 6/6/19, and 10/12/20 to 8/2/21

    Parties joint name home rental receipts

    Sponsor car registration

    Applicant Medicare enrolment

    9 photos of the parties in Australia and the Philippines

    Migration Agent submission

    Photos of the parties, including wedding

    Social media post

    Parties joint name rental agreement, 13/3/20

    Sponsor confirmation of employment and payslips

    Applicant confirmation of employment, and continued employment, and payslip

    Western Union details of money transfers, report dated 23/7/19

    Is the applicant sponsored?

12. Clause 820.211 requires at the time of application, the applicant meets one of several alternative sub criteria. These include 820.211(2)(c) which requires that the applicant was, at the time of application, sponsored by the sponsor, where such person has turned 18; or where they have not, by the sponsor’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).

13. At the time of decision, the applicant must continue to be sponsored by the sponsor, and the sponsorship must have been approved by the Minister and be still in force. Exceptions apply in certain circumstances where the sponsor has died, or family violence has occurred, or a child is involved. For visa applications made on or after 18 November 2016, the sponsor must also have consented for the Department to disclose to each 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 820.221.

14. 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 for sponsors convicted of a relevant offence who have a significant criminal record in relation to the relevant offence where the visa application was made on or after 18 November 2016.

    Regulation 1.20KC

15. The Tribunal notes the Delegate as part of the decision, upon review of the National Police Certificate for the sponsor provided as part of the visa applicant, determined that the sponsor, having spent a period in excess of 12 months in jail, to have a significant criminal record and did not meet the provisions of Regulation 1.20KC to be a sponsor for a Partner visa application.

16. The Tribunal notes the Delegate considered the waiver provisions provided by Regulation 1.20KC(4) and determined the parties had not provided reasons to justify that it would be reasonable to approve the sponsorship.

17. The Tribunal accepts the documented and oral evidence of the parties that the criminal offense of the sponsor resulting in him being convicted and imprisoned, resulted in him spending 1 year and 10 months in jail, and that he was released in April 2007.

18. The Tribunal accepts the documented and oral evidence of the parties that the applicant, in the period from April 2007 to now, has continually worked and has not had any issues in his life which has resulted in the attention of Police and the Courts.

19. The Tribunal accepts the documented and oral evidence of the parties, that before going to jail in June 2006, the sponsor was a selfish man who did what he wanted, and it was the realisation of jail that forced him to look at himself and his life and he decided to be a very different person, one who contributed to his family, friends and society and did not have the attitude of take.

20. The Tribunal accepts the documented and oral evidence of the parties of the difference of the sponsor since April 2007 and that he was now a person who is loved, liked, trusted and looked up to.

21. The Tribunal accepts the documented and oral evidence of the parties of the fact the sponsor told the applicant about his crime issues early in the relationship and they both knew that he was a very different person to what he had been and were prepared to commit to the relationship.

22. The Tribunal accepts the documented, photographic and oral evidence of the parties that the relationship has been in place since mid-2016.

23. The Tribunal accepts the documented and oral evidence of the parties of the good relationship the sponsor has with the 2 children of the applicant and the desire for the children to live in Australia with their mother and stepfather.

24. The Tribunal determines that the sponsor is a suitable person to sponsor a Partner visa application and that it determines he meets the provisions of Regulation 1.20KC(4).

25. On the evidence before the Tribunal the requirements of cl 820.211(2) and cl 820.221(1) are met.

    Is the sponsor an Australia citizen, and Australian permanent resident or an eligible New Zealand citizen?

26. 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.

27. The Tribunal accepts the documented evidence of the sponsor being an Australian Citizen by birth.       

    Whether the parties are in a spouse or de facto relationship

28. 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).

29. 'De facto partner' is defined in 5CB of the Act, which provides that 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).

30. In forming an opinion whether they are in a spouse or 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 their commitment to each other as set out in r.1.09A(3) which is attached to this decision. Each of the specific matters contained in r.1.09A(3) are effectively questions which must be answered: He v MIBP [2017] FCAFC 206.

    Are the parties validly married?

31. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. A copy of the applicant and sponsors marriage certificate is on the Department’s file. The parties presented as part of the visa application documented evidence they were married in Australia on 5 June 2017. There is nothing to suggest that the marriage is not valid. 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).

32. The Tribunal accepts the documented, photographic and oral evidence of the parties holding a wedding celebration in Australia 5 June 2017, with approximately 20 people in attendance including members of both families.

    Are the other requirements for a spouse relationship met?

33. The Tribunal has considered the evidence relevant to the matters in r.1.15A. The Tribunal took into account the available documentary evidence contained on the Department’s file and the Tribunal’s file and evidence provided to the Tribunal.

    CLAIMS AND FINDINGS

    Financial aspects of the relationship that must be considered include:-

    (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 expense

34. The Tribunal accepts the documented and oral evidence of the parties that at the time of the visa application and this decision no real estate or other major assets was or is jointly owned by the parties.

35. The Tribunal determines from the documented and oral evidence of the parties that at the time of the visa application and this decision, the parties do not have any joint liabilities.

36. The Tribunal determines from the documented and oral evidence of the parties that at the time of the visa application and this decision, none of the parties has a legal obligation to the other.

37. The Tribunal accepts the documented evidence of the parties that the sponsor works for a road sealing company in South Australia.  

38. The Tribunal accepts the documented evidence of the parties that the applicant works as a personal carer.   

39. The Tribunal accepts the documented evidence of the finances of the parties being operated from a joint name bank account and an account in the name of the sponsor, with the wage income of the sponsor going into his account and being used to pay for all household and social cost needs, with the income of the applicant paid in to the joint name account and this account used for the financial support of family members in the Philippines and as a joint savings account, and determines these accounts and their management to represent, at the time of application and this decision, the pooling of financial resources for major financial commitments and the sharing of day-today household expenses.

    Nature of the household aspects that must be considered include:-

    (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

40. The Tribunal notes the documented and oral evidence of the parties that the sponsor has a daughter born in 1991, who lives in Queensland, that the sponsor and applicant have a good relationship with but as she is an adult they are not required to provide her with care and support as would be required for younger children.

41. The Tribunal accepts the documented, photographic and oral evidence of the parties that eh applicant has a son born in 2003 and daughter born in 2005 who remain living with the father and sister of the applicant in the Philippines, with the sponsor and applicant providing financial support monthly to support the family in their accommodation, living and education expenses, and determines, at the time of the visa application and this decision the parties have joint responsibility for the care and support of children.

42. The Tribunal accepts the documented, photographic and oral evidence of the parties that the parties travelled to the Philippines in May and June 2017, spending 30 days with the children of the applicant.

43. The Tribunal accepts the documented, photographic and oral evidence of the parties that the parties have lived together since 28 April 2017 when the applicant arrived in Australia.

44. The Tribunal accepts the documented, photographic and oral evidence of the parties roles and responsibilities of each in their home and determines, at the time of application and this decision,  the parties have shared the responsibility for housework.  

    Social aspects of the relationship that must be considered include:-

    (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

45. The Tribunal accepts the documented, photographic and oral evidence of the parties of the wedding celebration in Australia on 5/6/17, noting that members of both families had been involved in the planning and were in attendance, and determines, at the time of application and this decision, the parties represent themselves to other people as married.  

46. The Tribunal accepts the documented, photographic and oral evidence of the parties that the parties parents and siblings, and their individual and collective friends, at the time of the visa application and this decision, are supportive of the relationship and marriage.

47. The Tribunal accepts the documented, photographic and oral evidence of the parties that the parties plan and undertake joint social activities during the time they have spent in the Philippines and Australia since they have been together from December 2016 and determines, at the time of the visa application and this decision, the parties plan and undertake joint social activities.

    Nature of the commitment to each other that must be considered include:-

    (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.

48. The Tribunal accepts the documented and oral evidence from the parties of first making contact in mid-2016, physically meeting in December 2016 during which they committed to each other, the sponsor proposing on 1 January 2017, the parties holding a wedding celebration in Australia on 5 June 2017 and the parties living together since.   

49. The Tribunal accepts the documented and photographic evidence of the parties living together for the time the sponsor was in the Philippines in December 2016 and January 2017 and that they have lived together in Australia from 28 April 2017.   

50. The Tribunal accepts the documented evidence of the parties of being in contact on a daily basis for the period from the commencement of the relationship in mid-2016 for the periods in which they were not together, to 28 April 2017 when the applicant came to Australia and has lived with the sponsor. 

51. The Tribunal accepts the documented evidence of the parties of the support the parties have provided to each other and determines, at the time of application and this decision, a high level of companionship and emotional support is provided by each of the parties to the other.

1. The Tribunal accepts the documented evidence of the parties and determines, at the time of application and this decision, the parties have an ongoing commitment to each other, the relationship and marriage as being for the long-term.

   Any other circumstances of the relationship

2. The Tribunal accepts the documented and oral evidence of the parties that the intention at all times has been for the children of the applicant to live with the parties in Australia, but it was the advice of a previous migration agent to not include the children in the partner visa application that has created the situation of the parties being apart from the children since April 2017 other than a visit for 32 days in May / June 2019.

3. The Tribunal accepts the documented and oral evidence of the parties of the intention to lodge visa applications for the children as soon as possible, and that they had been reviewing the option of the children lodging Student Visa applications so they could live and study in Australia.

4. The Tribunal considered all the evidence on the circumstances of the parties and determines that the evidence supports a finding that, at the time of the application and this decision, the parties had and continue to have a mutual commitment to a shared life together as a married couple to the exclusion of all others, with the relationship genuine and continuing.

5. The Tribunal accepts that the documented and photographic evidence of the relationship of the parties and determines, at the time of the visa application and this decision, the parties do not live separately and apart on a permanent basis. 

6. On the basis of the above the Tribunal is satisfied that the requirements of s.5F(2) are met at the time of the visa application and the time of this decision. The Tribunal is further satisfied the sponsor is not prohibited by subclause (2B) from being a sponsoring partner.

7. The applicant therefore meets cl.820.211(2)(a). The Tribunal accepts the applicant was sponsored and therefore meets cl.820.211(2)(c). Accordingly, the applicant meets cl.820.211(2). The applicant continues to meet these requirements at the time of decision and therefore meets cl.820.221(1). 

8. 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

9. 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:

   ·r.1.20KC(4) to the Regulations

   ·cl 820.211(2) of Schedule 2 to the Regulations; and

   ·cl 820.221(1) of Schedule 2 to the Regulations.

   Steven Griffiths
   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).

   MIGRATION REGULATIONS 1994 - REG 1.20KC

   Limitation on approval of sponsorship--prospective marriage and partner visas

   Applications for which visas?

   (1)  This regulation applies in relation to the approval of a sponsorship for one or more applications for any of the following visas:

   (a)  a Prospective Marriage (Temporary) (Class TO) visa;

   (b)  a Partner (Provisional) (Class UF) visa;

   (c)  a Partner (Temporary) (Class UK) visa.

   Relevant offences

   (2)  This regulation applies in relation to an offence (a relevant offence ) against a law of the Commonwealth, a State, a Territory or a foreign country, involving any of the following matters:

   (a)  violence against a person, including (without limitation) murder, assault, sexual assault and the threat of violence;

   (b)  the harassment, molestation, intimidation or stalking of a person;

   (c)  the breach of an apprehended violence order, or a similar order, issued under a law of a State, a Territory or a foreign country;

   (d)  firearms or other dangerous weapons;

   (e)  people smuggling;

   (f)  human trafficking, slavery or slavery-like practices (including forced marriage), kidnapping or unlawful confinement;

   (g)  attempting to commit an offence involving any of the matters mentioned in paragraphs (a) to (f), or paragraph (h);

   (h)  aiding, abetting, counselling or procuring the commission of an offence involving any of the matters mentioned in paragraphs (a) to (g).

   Sponsor has significant criminal record in relation to relevant offence

   (3)  The Minister must refuse to approve the sponsorship of each applicant for the visa if:

   (a)  the sponsor has been convicted of a relevant offence or relevant offences; and

   (b)  the sponsor has a significant criminal record in relation to the relevant offence or relevant offences (see regulation 1.20KD).

   (4)  Despite subregulation (3), the Minister may decide to approve the sponsorship if the Minister considers it reasonable to do so, having regard to matters including the following (without limitation):

   (a)  the length of time since the sponsor completed the sentence (or sentences) for the relevant offence or relevant offences;

   (b)  the best interests of the following:

   (i)  any children of the sponsor;

   (ii)  any children of the applicant who is seeking to satisfy the primary criteria for the grant of the visa concerned;

   (c)  the length of the relationship between the sponsor and the applicant who is seeking to satisfy the primary criteria for the grant of the visa concerned.

   Police check

   (5)  To determine whether a sponsor has been convicted of a relevant offence, and whether the sponsor has a significant criminal record in relation to a relevant offence, the Minister may, on one or more occasions, request the sponsor to provide a police check relating to the sponsor from any, or all, of the following:

   (a)  a jurisdiction in Australia specified in the request;

   (b)  a foreign country, specified in the request, in which the sponsor has lived for a period, or a total period, of at least 12 months since the latest of the following dates:

   (i)  10 years before the date of the request;

   (ii)  the date the sponsor turned 16.

   (6)  In addition to subregulation (3), the Minister may refuse to approve the sponsorship of each applicant for the visa if:

   (a)  the Minister has requested a police check from the sponsor under subregulation (5); and

   (b)  the sponsor does not provide the police check within a reasonable time.