CABANERO-YATES (MIGRATION) - [2024] ARTA 115

CABANERO-YATES (MIGRATION) [2024] ARTA 115 (27 NOVEMBER 2024)
DECISION AND
REASONS FOR DECISION
Applicant:Ms Rowena Labiano Cabanero-Yates
Respondent:  Minister for Home Affairs
Tribunal Number:  2113349

Tribunal:General Member G Bartley
Place:Sydney
Date: 27 November 2024
Decision:The Tribunal sets aside the decision under review and remits the application for a Partner (Temporary) (Class UK) visa for reconsideration, in accordance with the order that the applicant meets the following criteria for a Subclass 820 (Partner) visa:
·cl.820.211(2) of Schedule 2 to the Regulations
·cl.820.221 of Schedule 2 to the Regulations

Statement made on 27 November 2024 at 9:29am

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – genuine and continuing relationship – mutual understanding of each other’s finances – shared household responsibilities – social recognition of the relationship – joint travel – decision under review remitted
LEGISLATION
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024
Migration Act 1958, ss 5, 65
Migration Regulations 1994, Schedule 2, cls 820.211, 820.221; r 1.15
CASES
He v MIBP [2017] FCAFC 206
STATEMENT OF REASONS

On 14 October 2024, the Administrative Appeals Tribunal (AAT) became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
ISSUE
The issue in this review is whether the applicant, Ms Rowena Labiano Cabanero-Yates, is the spouse of her sponsor, Mr Colin Yates, as defined in s 5F of the Migration Act 1958 (Cth) (the Act) at the time of application and at the time of making this decision.
APPLICATION FOR REVIEW
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) Subclass 820 visa under s 65 of the Act.
The applicant applied for the visa on 17 March 2021 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.
The delegate refused to grant the visa on 14 September 2021 on the basis that the applicant did not meet cl.820.211(2) of the Regulations. The delegate said the applicant had failed to provide additional documents to support the application, despite numerous invitations to do so. The delegate was not satisfied that the applicant is the spouse of her sponsor, as defined in s 5F of the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: CABANERO-YATES (MIGRATION) [2024] ARTA 115
Case: [2024] ARTA 115
Decision Date: 27 November 2024

CaseChat Overview and Summary

The Tribunal has found that the decision to refuse the applicant's visa application should be set aside and the matter should be remitted for reconsideration. The applicant, a citizen of the Philippines, and the sponsor, an Australian citizen, had a relationship that began shortly after they were introduced by a mutual friend in May 2019. The applicant moved into the sponsor's home in August 2019 and they were married in December 2020. The Tribunal considered whether the parties were in a genuine and continuing relationship, as required for a Partner (Temporary) (Class UK) visa. The Tribunal noted the mutual understanding of each other's finances, shared household responsibilities, and social recognition of the relationship, among other factors.

The legal issues before the Tribunal involved determining whether the applicant met the requirements for a Subclass 820 (Partner) visa. This included assessing whether the applicant was the spouse or de facto partner of the sponsor and whether the relationship was genuine and continuing. The Tribunal considered the financial, social, and commitment aspects of the relationship, as outlined in the Migration Regulations 1994. The Tribunal also took into account the oral evidence provided by the parties and two witnesses, finding it reliable and consistent with the documentary evidence.

The Tribunal concluded that the decision under review should be set aside and the matter remitted for reconsideration. The Tribunal found that the applicant had presented sufficient evidence to support the claim that she was in a genuine relationship with the sponsor. The Tribunal noted the significant weight of the oral evidence and the consistency between the oral and documentary evidence. The Tribunal found that the application should be reconsidered in light of the evidence presented, particularly the nature of the relationship and the circumstances surrounding the marriage.

The Tribunal set aside the decision and remitted the application for a Partner (Temporary) (Class UK) visa to the Minister for reconsideration. The Tribunal noted that the applicant met the criteria for a Subclass 820 (Partner) visa as per clauses 820.211(2) and 820.221 of the Regulations. The Tribunal ordered that the application be reconsidered in accordance with the relevant criteria.

Orders

Orders of the court

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Background

Background to the litigation

For the following reasons, the Tribunal has concluded that the decision under review is set aside, and the matter should be remitted for reconsideration.BACKGROUND The applicant is a 61-year-old citizen of the Philippines. She has declared one previous marriage that ended in divorce. The applicant does not have any children. Her parents are deceased. The applicant was one of nine children, however two of her brothers have died. One of the applicant’s sisters lives in Canada; her other remaining siblings (one brother and four sisters) live in the Philippines. The applicant first travelled to Australia from March to June 2007 after being granted a Tourist visa (Subclass 676). She was granted a Visitor visa (Subclass 600) on 24 September 2018, and returned to Australia from October 2018 until January 2019. The applicant travelled to Australia again on 1 May 2019 and has not departed since that date. She was granted a Student visa (Subclass 500) on 24 August 2019, which ceased on 21 March 2021. The applicant is employed as an aged care support worker on a permanent part-time basis. The sponsor is an 85-year-old Australian citizen by birth. He has declared one previous marriage that ended upon the death of his wife. The sponsor has two children from that relationship, both of whom live in Australia. He is retired and receives income from various sources, including a Centrelink aged pension. The applicant and the sponsor (the parties) stated in the application that they were introduced by a mutual friend (Ms Dwyer) in May 2019 and formed a relationship within a few days. The applicant moved into the sponsor’s home in August 2019, and the parties were married at Arndell Park on 16 December 2020. CONSIDERATION OF CLAIMS AND EVIDENCE Prior to and at the hearing, the applicant’s representative submitted additional documents to support the application, including but not limited to the following: bank statements in the applicant’s name, the sponsor’s name and in joint names, utility bills, a copy of the sponsor’s will, statutory declarations by witnesses, correspondence sent to the parties at a mutual address, letters sent to the sponsor by Centrelink, club membership cards in the applicant’s and sponsor’s names, a 40SP sponsorship form completed by the sponsor on 15 March 2021, written submissions by the applicant’s representative, and a statutory declaration by the applicant, dated 16 August 2024. In making my decision, I have had regard to the documents in the Department and Tribunal files and the oral evidence at the hearing. I had the benefit of receiving additional evidence that was not available to the delegate, including oral evidence in person from the parties and two witnesses. The parties gave consistent and coherent oral evidence regarding the inception and nature of their relationship and their current living arrangements. Their evidence was wholly consistent with the documents submitted to support the application. The applicant gave oral evidence that was potentially contrary to her interests, for example regarding the parties’ estrangement from the sponsor’s daughter because she does not accept the relationship. Both Ms Dwyer and Mr Booth have known the parties for some years. Ms Dwyer introduced them, and Mr Booth is the Pastor at their church. Both Ms Dwyer and Mr Booth gave their oral evidence in an open and forthright manner. They did not seek to embellish or exaggerate when responding to questions. Mr Booth was candid about his initial concerns about the parties’ relationship because of the 24-year difference in their ages. I am satisfied that the oral evidence at the hearing was reliable and have placed weight on it. Whether the parties are in a spouse or de facto relationship

Evidence

Evidence Before The Court

The applicant and the sponsor (the parties) stated in the application that they were introduced by a mutual friend (Ms Dwyer) in May 2019 and formed a relationship within a few days. The applicant moved into the sponsor’s home in August 2019, and the parties were married at Arndell Park on 16 December 2020. CONSIDERATION OF CLAIMS AND EVIDENCE Prior to and at the hearing, the applicant’s representative submitted additional documents to support the application, including but not limited to the following: bank statements in the applicant’s name, the sponsor’s name and in joint names, utility bills, a copy of the sponsor’s will, statutory declarations by witnesses, correspondence sent to the parties at a mutual address, letters sent to the sponsor by Centrelink, club membership cards in the applicant’s and sponsor’s names, a 40SP sponsorship form completed by the sponsor on 15 March 2021, written submissions by the applicant’s representative, and a statutory declaration by the applicant, dated 16 August 2024. In making my decision, I have had regard to the documents in the Department and Tribunal files and the oral evidence at the hearing. I had the benefit of receiving additional evidence that was not available to the delegate, including oral evidence in person from the parties and two witnesses. The parties gave consistent and coherent oral evidence regarding the inception and nature of their relationship and their current living arrangements. Their evidence was wholly consistent with the documents submitted to support the application. The applicant gave oral evidence that was potentially contrary to her interests, for example regarding the parties’ estrangement from the sponsor’s daughter because she does not accept the relationship. Both Ms Dwyer and Mr Booth have known the parties for some years. Ms Dwyer introduced them, and Mr Booth is the Pastor at their church. Both Ms Dwyer and Mr Booth gave their oral evidence in an open and forthright manner. They did not seek to embellish or exaggerate when responding to questions. Mr Booth was candid about his initial concerns about the parties’ relationship because of the 24-year difference in their ages. I am satisfied that the oral evidence at the hearing was reliable and have placed weight on it. Whether the parties are in a spouse or de facto relationship 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. In the present case, the applicant claims to be the spouse of the sponsor who is an Australian citizen. ‘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) is effectively a question which must be answered: He v MIBP [2017] FCAFC 206.Are the parties validly married?

Decision

Reasons for decision

Given the findings above, the appropriate course is to set aside the decision under review and remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 820 visa.DECISION The Tribunal sets aside the decision under review and remits the application for a Partner (Temporary) (Class UK) visa for reconsideration, in accordance with the order that the applicant meets the following criteria for a Subclass 820 (Partner) visa:·cl.820.211(2) of Schedule 2 to the Regulations·cl.820.221 of Schedule 2 to the RegulationsDate of hearing: 25 November 2024 Representative for the Applicant: Mr Florante Siapno FernandezATTACHMENT - Extract from Migration Regulations 19941.15ASpouse(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).

Ratio Decidendi

Legal Principle Established

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