CABANERO-YATES (MIGRATION)
[2024] ARTA 115
•27 November 2024
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 1.15CASES
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 Act.
On 1 October 2021, the applicant applied to the AAT for review of the delegate’s decision.
The applicant appeared before the Tribunal on 25 November 2024 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor and from a mutual friend; Ms Joyce Dwyer, and the parties’ Pastor, Mr Christopher Booth. The Tribunal hearing was conducted with the assistance of an interpreter in the Tagalog language.
The applicant was represented in relation to the review by her representative who attended the hearing.
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
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?
If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. There is no evidence before me to cast doubt on the validity of the parties’ marriage at Arndell Park on 16 December 2020, and it was not disputed by the delegate. Consequently, in the absence of any evidence to the contrary, I find that 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).
Are the other requirements for a spouse relationship met?
Financial aspects of the relationship
The parties do not have any joint debts or owe legal obligations to one another. They have around $7,000 in savings in their joint bank account but no other assets. The parties live in a two-bedroom retirement village villa owned by the sponsor. The applicant is employed as an aged care support worker and earns around $1,500 net per fortnight. The sponsor is retired and receives a Centrelink aged pension of around $550 per fortnight. In addition, he receives monthly superannuation and reverse mortgage payments.
The parties demonstrated a reasonable understanding of each other’s finances. While the sponsor was unaware that the applicant has managed to save around $20,000 from her employment income, he gave persuasive oral evidence that he supports her financial independence and believes she should be free to manage her money as she wishes. The sponsor was aware that the applicant is sending money to the Philippines to support some members or her family, including a nephew after the death of her brother. The applicant demonstrated some understanding of the sponsor’s sources of income and remaining superannuation.
The parties gave consistent oral evidence that the applicant’s niece is living with them at present, and she pays rent of $120 per week into the parties’ joint account. That account is used to save for future travel and entertainment. The parties agreed that they do not use the joint account to pay expenses. The bank account statements provided prior to the hearing show that the applicant’s wages are paid into her personal bank account. I accept that she contributes to food and day-to-day household expenses. The sponsor pays the strata fees and most of the utility bills because he receives a pensioner discount. His aged pension and other income are paid into his personal bank account. The bank account statements show regular transfers between the parties, for example the sponsor pays the applicant’s monthly car insurance premium, and the applicant then reimburses him. Almost all of the expenditure evident in the parties’ bank account statements occurs close to their home, including at supermarkets and various retail outlets.
Prior to the applicant obtaining work rights, she relied on her savings and financial support from the sponsor. The sponsor’s bank account statements show that he paid some, if not all, of the applicant’s tuition fees while she was studying aged care. I am satisfied that the parties have been pooling their financial resources and sharing day-to-day household expenses since they began cohabiting, although the applicant’s ability to contribute was limited until she completed her studies and started working in aged care in January 2021.
The financial aspects of the parties’ relationship are consistent with a finding that they are in a genuine and continuing spouse relationship.
Nature of the household
The parties live in a two-bedroom home in a retirement village in North-Western Sydney with the applicant’s niece. I am satisfied that the applicant moved into the sponsor’s home in August 2019. The applicant’s niece moved into the home around 15 months ago.
The parties gave wholly consistent oral evidence regarding their household arrangements. The applicant does the majority of the cooking and cleaning, with assistance from her niece. The applicant works three afternoon shifts per week, finishing at 10.30 pm. On those days, she prepares the sponsor’s evening meal before she goes to work, and he reheats it in the microwave oven. The applicant’s niece is studying and working two part-time jobs. If the applicant’s niece is at home, she sometimes cooks the sponsor’s evening meal. The sponsor assists with some household chores, including hosing the garden. He is experiencing some knee pain so is less physically able to undertake tasks such as lawn mowing. The parties generally do the grocery shopping together. They have cancelled some external services previously used by the sponsor because the applicant has taken on those tasks, for example washing and ironing.
The applicant’s representative provided photographs of the parties’ patio and garden prior to the hearing. Both the applicant and the sponsor enjoy tending to their garden and growing flowers.
It is uncontested that the parties do not have any joint responsibility for the care and support of children.
The evidence of the establishment of a joint household for more than five years provides significant weight in support of a finding of a genuine and continuing spouse relationship.
Social aspects of the relationship
The parties were married in December 2020 and a small group of family and friends attended that celebration, including the sponsor’s son and three granddaughters. Photographs provided by the applicant’s representative corroborate the parties’ account of the event.
The parties have travelled to Adelaide, Kiama, Broken Hill and Terrigal together. They generally spend Christmas with the sponsor’s son and granddaughters. The parties attend birthday parties and other social occasions with friends and relatives, as demonstrated by the photographs submitted prior to the hearing. They attend a local church together and have formed close bonds with their Pastor and many members of the congregation. During the COVID-19 pandemic, the parties attended church services online. Mr Booth gave oral evidence that the parties sometimes participate in the online church service on weekends if the sponsor is not feeling well enough to attend church. I accept that many of the parties’ social connections have been formed through their church.
The witnesses at the hearing confirmed that they socialise with the parties on a regular basis, including after church services. They attested to the warm and loving manner in which the parties relate to one another, including holding hands during church services. Ms Dwyer said the applicant declines to attend social occasions without the sponsor if he is unwell. Both Mr Booth, who is the Pastor at the parties’ church, and Ms Dwyer attested to the genuineness of the parties’ relationship and the love they have for one another.
Numerous statutory declarations by witnesses were submitted to support the application, including from the sponsor’s son, Mr Andrew Yates, dated 10 February 2021. Mr Yates said the applicant generally visits his home with the sponsor on a fortnightly basis. Mr Yates said:
“I believe it is genuine and continuing. Given the age gap and circumstances, I asked my Dad many questions and he ultimately satisfied by scepticism. Based on the 25 + times I’ve seen them together, they act and behave like any normal loving couple.”
Ms Kathleen Turnham, neighbour and friend, provided a statutory declaration, dated 9 August 2024. Ms Turnham said she has known the applicant for five years and the sponsor for 22 years, and she sees them three times per week. Ms Turnham said:
“The relationship is genuine and continuing. Rowena looks after her husband Colin, his daily needs, care of their home which they do jointly including the garden, [they] share the driving and housework. They are a loving and happy couple.”
There was considerable detail in the majority of the witness statutory declarations and that evidence impressed me as sincere. I have therefore placed weight on it.
The sponsor has advised Centrelink of the parties’ relationship, as evidenced by the letter from Centrelink that confirms he is partnered. The sponsor gave clear and persuasive oral evidence that he is required to report the applicant’s income from employment each fortnight, and the rate of his aged pension is calculated accordingly. The sponsor’s notification to Centrelink of the parties’ marriage and his fortnightly reporting of the applicant’s income is significant because it impacts upon the rate of his aged pension. I have placed substantial weight on that evidence.
The applicant’s sister visited the parties from Canada earlier this year and stayed with them for around a week. The parties gave a consistent account of her trip, including where she slept. The sponsor has spoken with some of the applicant’s siblings in the Philippines by telephone and has formed a close bond with the mother of the niece who is currently living with the parties.
The parties provided a consistent account of their social activities. They enjoy going to the movies, local clubs and spending time with the sponsor’s son and granddaughters.
I find that the parties represent themselves to their families, friends and the wider community as being in a committed spouse relationship. I accept that the applicant has told her work colleagues about the parties’ marriage. I am satisfied that the parties plan and undertake social activities with others. Furthermore, I find that the parties’ relationship is recognised and supported by their friends and most family members, including the sponsor’s son. I accept the applicant’s oral evidence that the sponsor’s daughter does not agree with or support the parties’ relationship. The applicant said the sponsor’s daughter had a particularly close relationship with her mother and became upset when the sponsor took the applicant to visit his first wife’s grave. The sponsor’s daughter chooses not to have any contact with the parties.
The social aspects of the parties’ relationship support a finding that they are in a genuine and continuing spouse relationship.
Nature of the persons' commitment to each other
I find that the parties have been in a committed relationship and living together for more than five years. They have been married for almost four years.
The parties acknowledged there is a 24-year difference in their ages, but they have not found it to be a barrier to their happiness. They enjoy each other’s company and are content with the way things are. It was evident throughout the hearing that the parties have formed a strong bond and do not wish to be separated.
The parties gave consistent oral evidence about their families, the applicant’s employment and their daily routines. The applicant was aware that the sponsor’s only regular medication is prescribed to help him sleep. The applicant took the sponsor to and from hospital earlier this year to have cataract surgeries and administered prescribed drops multiple times each day afterwards to assist with his recovery. This indicates that the applicant genuinely cares about the sponsor’s health and wellbeing. The witnesses gave a compelling account of the applicant’s commitment to the sponsor and the care that she provides to him.
The sponsor has made provision for the applicant in his will, including allowing her to remain in the parties’ home for three years after his death. It is evident from the copy of his will provided to the Tribunal prior to the hearing that the sponsor has given considerable thought to fairly balancing the interests of the applicant and his two children.
The parties gave a consistent account of their plans for the future, including to travel to the Philippines together to spend time with the applicant’s family. They have booked accommodation on the South Coast after Christmas because they wish to have a short break together. The applicant’s niece will accompany the parties on that trip.
I am satisfied that the parties provide one another with companionship and emotional support. The applicant provides the sponsor with some care due to his age and health problems, including driving him to medical appointments. The sponsor encouraged the applicant to study aged care after they met and he paid most, if not all, of her tuition fees. He has welcomed the applicant’s niece into the parties’ home. The sponsor encourages the applicant’s financial independence and supports her decision to assist her relatives by sending money to them in the Philippines.
I am satisfied that both parties see the relationship as lifelong. They have supported one another through the lengthy visa process and the COVID-19 pandemic. The sponsor acknowledged that he is 85 years old but gave oral evidence he has always looked after his health and been physically fit. The sponsor said he hopes to live for many more years, with love and support from the applicant. I accept that the parties wish to spend the rest of their lives together.
I am satisfied that the applicant and her sponsor have a long-term commitment to each other. This provides significant weight in support of a finding of a genuine and continuing relationship.
Conclusions on spouse/de facto criterion
After having regard to all of the circumstances of the relationship between the applicant and her sponsor, I am satisfied that they have a mutual commitment to a shared life together to the exclusion of all others. I am satisfied that the relationship between the parties is genuine and continuing. I find that they live together and that therefore they do not live separately and apart on a permanent basis.
On the basis of the above, I am 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. The sponsor is not prohibited from being a sponsoring partner. Therefore, the applicant meets cl.820.211(2)(a) and continues to meet this criterion at the time of this decision.
The sponsor was over the age of 18 years at the time of application and continues to be the sponsoring partner. The sponsor is an Australian citizen by birth. The applicant therefore satisfies the criteria in cl.820.211(2)(c) at the time of application and continues to meet this criterion at the time of this decision. The applicant held a substantive visa when she lodged the application (a Student visa), so the criteria in cl.820.211(2)(d) is not relevant.
For the above reasons, I find that the applicant meets the criteria in cl.820.211(2).
The sponsorship is still in force and the sponsor has consented to the disclosure of any relevant offences. As the applicant continues to meet the requirements of cl.820.211(2) at the time of this decision, she meets the criteria in cl.820.221.
Overall conclusion
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 Regulations
Date of hearing: 25 November 2024
Representative for the Applicant: Mr Florante Siapno Fernandez
ATTACHMENT - Extract from Migration Regulations 1994
1.15ASpouse
(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).
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