Bobadilla (Migration)

[2022] AATA 232

Bobadilla (Migration) [2022] AATA 232 (27 January 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Elaine Rita Bobadilla

CASE NUMBER:  1823033

HOME AFFAIRS REFERENCE(S):          BCC2016/3716001

MEMBER:Margie Bourke

DATE:27 January 2022

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:

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

Statement made on 27 January 2022 at 4:59pm

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – spouse or de facto partner – no response to department’s request for further information – visiting home country and change of contact details – extensive documentation, declarations and submissions provided to tribunal – validly married in home country – child Australian citizen by descent – good relationships with adult children from previous marriages – financial, household and social aspects of relationship – nature of commitment – decision made without proceeding to hearing – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5F(2)(a), 65, 360(2)(a)
Migration Regulations 1994 (Cth), r 1.15A(3), Schedule 2, cls 820.211(2)(a), 820.221

CASE
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 7 November 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 (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 cl 820.211 because the delegate found there was not sufficient evidence provided to demonstrate that the applicant was the spouse or de facto partner of the sponsor at the time of application.

4. The Tribunal has considered the matters contained in the Department’s decision record dated 30 July 2018 and the information available to the delegate at the time of that decision. The Tribunal has also considered the information provided by the applicant to the Tribunal that was not available to the Department. The Tribunal is satisfied that it can make a decision favourable to the applicant based on the information available to it, without proceeding to a hearing, pursuant to s.360(2)(a) of the Act.

5. The following are the written reasons that the Tribunal has concluded that the matter should be remitted back to the Department for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   SPOUSE/DE FACTO (cl 820.211(2)(a), cl 820.221)

   Whether the parties are in a spouse or de facto relationship

6. 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. Based on the sponsor’s Australian passport, I am satisfied that he is an Australian citizen. In the present case the applicant claims to be the spouse of the sponsor who is an Australian citizen.

7. ‘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 reg 1.15A(3), which is extracted in the attachment to this decision. Each of the specific matters contained in reg 1.15A(3) are effectively questions which must be answered: He v MIBP [2017] FCAFC 206.

   Are the parties validly married?

8. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. Based on the marriage certificate provided, I am satisfied that the parties were married in the Philippines on 9 July 2014. I am satisfied based on the information provided by the parties that they have both been in previous marriages. I accept that the applicant’s first husband is deceased, and I accept that the sponsor is divorced from his two previous spouses.  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).

   Circumstances relevant to the review

9. I am satisfied that the applicant lodged the application for the visa online on 7 November 2016. Both the sponsor and the applicant provided details of the circumstances of the relationship in the application form and the sponsorship form lodged with the Department. The Department wrote to the applicant on 25 June 2018 requesting further information in support of the application, and subsequently attempted to contact the applicant by telephone when the information was not provided. The information was not provided within the time requested, and accordingly the Department refused the visa application, on the basis it was not satisfied that sufficient information had been provided.

10. The applicant has provided the Tribunal with an explanation that the applicant and sponsor were in the Philippines at the time of the Department’s request for further information, and were not aware of the request. Further the sponsor stated that he had changed his contact telephone details and had not notified the Department, and therefore the applicant was not able to be contacted on the number that had been provided to the Department.

11. The applicant has provided the Tribunal with extensive submissions, statements, statutory declarations, photographs, financial documents and other information in support of the application for the visa. The Tribunal has carefully this new information, and also considered the detailed information the applicant and sponsor provided in the application and sponsorship forms, which is consistent with the detailed information the applicant and sponsor provided in their current statements to the Tribunal.

12. The Tribunal is satisfied that the applicant and sponsor have known each other since their childhood, and they met over Facebook in 2009 and met in person in Manila in November 2009. The Tribunal accepts that the applicant and sponsor continued to meet when the sponsor travel to the Philippines and the couple became engaged in October 2013. The Tribunal accepts that in December 2013 the applicant realised she was pregnant. The Tribunal is satisfied based on the birth certificate provided that the applicant and sponsor have son who was born in the Philippines in July 2014. The Tribunal is satisfied that the parties were married in the same month in the Philippines. The Tribunal is satisfied that the child is an Australian citizen by descent. The Tribunal accepts that the applicant and her son came to Australia to visit the sponsor in December 2015, and subsequently as the holder of a visitor visa she lodged the application for the partner visa in November 2016.

13. The Tribunal is satisfied based on the evidence provided that the applicant has not worked whilst residing in Australia, and the sponsor has been the financial provider for the family. The Tribunal is satisfied based on statements and documents provided that the parties have resided in a rented unit in Essendon. The Tribunal is also satisfied that the parties committed to a joint investment property in the Philippines to which they made monthly payments from 2017 to 2020. The Tribunal accepts based on the information provided that the parties are responsible for their rent payments and utility payments on the unit in Australia, and have a joint account together and the sponsor’s has a separate individual bank account.

14. The Tribunal is satisfied that the applicant has two children born in 1999 and 1997 from her previous marriage, who reside in the Philippines. Based on the statements and the documents recording money transfers, the Tribunal is satisfied that the applicant and sponsor provide financial support to the applicant’s two adult children.

15. The Tribunal is satisfied that the sponsor has two children, born in 1992 and 1999, one from each of his previous marriages in Australia. The Tribunal is satisfied that the applicant and sponsor have a good relationship with both these children, one of whom given them a grandson.

16. The Tribunal has considered the statutory declarations of the sponsor’s brother dated 24 December 2021, the two statutory declarations from the sponsor’s sister dated 22 December 2021 and 7 August 2018, the statutory declarations of the sponsor’s daughter dated 7 August 2018, the statutory declaration from the applicant’s friend dated 8 August 2018 which is very lengthy and detailed, and finally a statutory declaration from a friend of both the applicant and the sponsor dated 8 August 2018. These statutory declarations provide complex, varied and broad descriptions of the relationship and all conclude that the relationship is genuine and it will be long lasting.

17. The Tribunal has considered the photographs provided, which show the applicant and sponsor with various other people including their child, in indoor and outdoor locations, including social gatherings, overseas travel and birthday parties for the child, over a period of time.

    Are the other requirements for a spouse relationship met?

18. Financial aspects of the relationship: – the Tribunal is satisfied that the parties jointly invested in a property in the Philippines. The Tribunal is satisfied that the parties have joint liabilities including small loans, their rent, and utility bills. The Tribunal is satisfied based on the joint account, and the fact that only the sponsor has an income that the parties pool their financial resources. The Tribunal finds there is no evidence that either party has a legal obligation owed to the other. The Tribunal is satisfied that the applicant and sponsor share their day-to-day household expenses. The evidence of the financial aspects of the relationship indicate that the applicant and sponsor are in a genuine and continuing relationship at both the time of application and at the time of this decision.

19. Nature of the household: – the Tribunal is satisfied that the parties have joint responsibility for the care and support of their son born in 2014. The Tribunal is satisfied that the parties have assumed joint responsibility for the care and support of their adult children born from previous marriages. The Tribunal is satisfied that the parties live in a unit in Essendon since prior to the time of application. The Tribunal is satisfied that the sponsor is employed on a full-time basis, and the applicant undertakes responsibility for the majority of the house work. The Tribunal accepts that the sponsor contributes to the household chores by doing most of the cooking. The evidence of the nature of the household indicates that the parties are in a genuine and continuing relationship, have a mutual commitment to a shared life to the exclusion of all others, and live together, and not separately and apart, on a permanent basis, at both the time of application and at the time of decision.

20. Social aspects of the relationship: – based on the statutory declarations and statements provided, the Tribunal is satisfied that the applicant and sponsor represent themselves to other people as being married to each other, and that the opinion of friends, relatives and acquaintances is that the relationship is genuine, supportive and continuing. The Tribunal is satisfied that the applicant and sponsor attend family and social functions together, travel together and plan their social activities around their family unit of themselves and their son. The evidence of the social aspects of the relationship indicates that the parties are in a genuine and continuing relationship, and have a mutual commitment to a shared life to the exclusion of all others, at both the time of application and at the time of this decision.

21. Nature of the persons’ commitment to each other: – the Tribunal is satisfied that the parties have been married since 9 July 2014. The Tribunal is satisfied therefore that at the time of application the duration of the relationship was two years and four months, and at the time of decision the duration of the relationship is seven years and six months. I am satisfied that the applicant has lived with the sponsor at the Essendon address since December 2015 when she arrived in Australia on her visitor visa. The Tribunal is satisfied therefore that at the time of application the applicant and sponsor had resided together on a permanent basis for 11 months, and at the time of decision the applicant and sponsor have resided together for over six years. The Tribunal is satisfied based on the statements of the applicant and sponsor, that they provide each other with companionship and emotional support. The Tribunal is satisfied based on all the evidence before it, that the applicant and sponsor see their relationship as long-term, in which they plan to continue to be a family unit with their eight-year-old son and potentially move into a bigger rental property in the future. The evidence of the nature of the persons’ commitment to each other indicates that the parties are in a genuine and continuing relationship, have a mutual commitment to a shared life to the exclusion of all others, and live together, and not separately and apart, on a permanent basis, at both the time of application and at the time of decision.

22. The Tribunal has considered the circumstances of the relationship between the applicant and the sponsor as set out in r.1.15A(3). For the reasons set out above the Tribunal is satisfied that the applicant and sponsor have a mutual commitment to a shared life to the exclusion of all others, are in a genuine and continuing relationship, and live together, and not separately and apart, on a permanent basis. The Tribunal is satisfied that the relationship of the applicant and sponsor meets the requirements of s.5F(2)(b), (c) and (d), and further is satisfied that these requirements are met at both the time of application and at the time of decision.

23. 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 and at the time of this decision.

24. Therefore, as the applicant meets the requirements of  s.5F(2) at the time of application, the Tribunal finds that the applicant is the spouse of the sponsoring partner and satisfies the criteria in cl 820.211(2)(a).

25. The Tribunal is satisfied that the applicant is sponsored by the sponsoring partner who is her spouse, and who is over the age of 18 at the time of application. Therefore, the applicant satisfies the criteria in cl.820.211(2)(c).

26. There is no evidence that the applicant was not the holder of a substantive visa at the time of application. Department records show that the applicant arrived in Australia in December 2015 as the holder of a visitor visa, and was granted a further visitor visa in March 2016 which did not cease until 19 November 2016. The Tribunal is satisfied the applicant was the holder of a substantive visa, namely a visitor visa at the time of application, and therefore the requirements of cl.820.211(2)(d) do not apply.

27. The Tribunal is satisfied that the applicant meets the requirements of cl.820.211(2)(a), (c) and (d) at the time of application. Accordingly, the Tribunal is satisfied that the applicant meets the requirements of cl.820.211(2).

28. As set out above the Tribunal is satisfied that the requirements of s.5F(2) are met at the time of this decision. The Tribunal is satisfied that the applicant continues to meet the requirements of cl.820.211(2) at the time of decision. Accordingly, the Tribunal is satisfied that the applicant meets the requirements of cl.820.221.

29. 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

30. 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) and cl.820.221 of Schedule 2 to the Regulations.

    Margie Bourke
    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).