Cabezas (Migration)

[2024] AATA 2792

Cabezas (Migration) [2024] AATA 2792 (15 July 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Juice Badayos Cabezas
Master Paul Justine Badayos Cabezas

REPRESENTATIVE:  Mr Tanguy  Mutamba Mwilambwe

CASE NUMBER:  2101633

HOME AFFAIRS REFERENCE(S):          BC2019/1851386

MEMBER:Ann Duffield

DATE:15 July 2024

PLACE OF DECISION:  Canberra

DECISION:The Tribunal remits the applications for Partner (Temporary) (Class UK) visas, with the direction that the first named applicant meets the following criteria for a Subclass 820 (Partner) visa:

·cl 820.211(2)(a) of Schedule 2 to the Regulations

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

Statement made on 15 July 2024 at 1:05pm

CATCHWORDS

MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – genuine and continuing relationship – financial documents – child’s Australian citizenship by descent – joint care for children – social recognition of the relationship – decision under review remitted      

LEGISLATION

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 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 applicants Partner (Temporary) (Class UK) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The first named applicant (the applicant) applied for the visa on 15 April 2019 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 because the applicants did not provide any information to support their claims and the delegate was not satisfied that the parties were in a married relationship as envisaged by the Migration Act.

4. The applicants were represented in relation to the review.

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

   BACKGROUND

6. The primary applicant is a citizen of the Philippines born in October 1985. The secondary applicant is her son born in September 2008 (16 years old). He is also a citizen of the Philippines.  The primary applicant also has an Australian citizen child born in March 2017. The child’s father is not indicated on the birth certificate issued in the Philippines. The child’s citizenship certificate declares that they are an Australian citizen by descent.

7. The sponsor is an Australian citizen born in May 1950.

8. The parties claim to have met in person in October 2015 in Angeles City in the Philippines through a shared relationship with the sponsor’s brother and sister-in-law. In early 2016 the applicant and her son moved in with the sponsor in the home of the sponsor’s brother and sister-in-law. They lived their until they rented their own home in the Philippines for a year before they came to Australia.

9. At the time of application, the parties were engaged to be married. The marriage took place in March 2020. Whilst the parties indicate in their original application that personal statements and details of their relationship accompanied the application form, the Tribunal was unable to locate any such documents on the department file.

10. Despite several requests from the department to the applicants, no further information was provided, and the delegate proceeded to refuse the application on 5 February 2021.

    Before the Tribunal

11. Prior to the hearing, the parties provided the Tribunal with the following evidence supporting their claims:

    a.Income tax return estimate for the applicant for financial year 2022-2023

    b.Copy of a home and contents insurance account in the names of the applicant and the sponsor dated 13 February 2023

    c.An offer of employment to the applicant dated April 2024

    d.A copy of the applicant’s driver’s licence

    e.A copy of a payslip in the applicant’s name dated April 2024

    f.Birth certificates for both the applicant’s children

    g.A copy of the younger child’s Australian citizenship by descent document dated 22 March 2018

    h.Some photos of the applicant and the sponsor together and with others

    i.An unsigned copy of the legal will of the sponsor naming the applicant as a beneficiary.

    j.A copy of a bank statement in both the parties’ names for the period December 2023 to January 2024.

    k.A copy of the couple’s marriage certificate indicating they married in Australia on 14 March 2020

    l.Individual statutory declarations from each of the parties setting out the inception and development of the relationship.

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. The issue in the present case is whether the applicant is the spouse of the sponsor within the meaning of the Migration Act.

    Whether the parties are in a spouse or de facto relationship

13. 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.

14. ‘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?

15. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. The parties were married in Australia on 14 March 2020. A copy of the marriage certificate is on the Tribunal file. 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).

    Are the other requirements for a spouse relationship met?

16. The couple have provided significant detailed evidence and information to the Tribunal that was not made available to the delegate at the time of their decision. Having considered the new material, the Tribunal is satisfied that the couple are in a genuine marriage for the following reasons.

17. The Tribunal has considered the financial aspects of the relationship – including joint ownership of assets; joint liabilities; extent of pooling of financial resources; any legal obligations owed to the other party; any sharing of day-to-day household expenses.

18. Both parties have shared the financial burden of the relationship regarding rent and general expenses. The applicant works as a nursing assistant in an aged care facility and the sponsor receives a pension as he is retired. Their respective incomes are utilised almost wholly for the support of their household.

19. The sponsor owns their current home but in the past whilst in the Philippines, they have jointly paid the rent.  Both their names were on the contract of lease on that property where they lived from April 2017 to April 2018. Prior to renting their own home, they shared a house with the sponsor’s brother and sister-in-law.

20. The applicant is named as the primary beneficiary on her husband’s will, and they have said that both contribute to the joint running of the household.

21. The Tribunal has considered the nature of the household – including any joint responsibility for care and support of children; parties' living arrangements; and any sharing of housework.

22. The applicant had a son, born September 2008 in another relationship, when she and the sponsor moved in together in 2016. In March 2017 their daughter was born in the Philippines, and she has obtained Australian citizenship by descent. Both parties have given detailed information about how they jointly care for the two children and run their household and the tribunal has given this evidence significant weight.

23. The Tribunal has considered the social aspects of the relationship – including whether parties represent themselves to other people as being married to each other; the opinion of friends and acquaintances about the nature of the relationship; and any basis on which the persons plan and undertake joint social activities.

24. The couple have given evidence that they are close to the sponsor’s brother and his family and are regarded by their close family unit as a married couple. Their mutual friends have provided detailed and relevant statements supporting the genuine nature of their marriage. The couple have provided photographs of themselves together and with others in social settings.

25. The Tribunal has considered the nature of persons' commitment to each other – including duration of the relationship; the length of time they have lived together; degree of companionship and emotional support they draw from each other; and whether they see the relationship as long-term.

26. The couple have been living together since 2016 (some eight years) and have been married for four of those years. They share and Australian citizen daughter born in 2017 and the sponsor has taken on the responsibility of raising the applicant’s son as well. They consider themselves to be a family and the sponsor, as a retiree, has taken on significant responsibilities in relation to caring for the children including taking them to and from school and doing the housekeeping. The Tribunal accepts this evidence as strongly supporting their application.

27. The applicant’s son regards the sponsor as his father, having spent more than half his life living with him. The sponsor has said that separating the children would be devastating for them all and that the applicant provides integral emotional, physical, and financial support to the whole family.

28. The Tribunal is satisfied that all aspects of the couple’s relationship supports a finding that they have a mutual commitment to a shared life together to the exclusion of all others and that they do not live separately and apart.

29. 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.

30. Therefore the applicant meets cl 820.211(2)(a) cl 820.221(1)(a).

31. 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

32. The Tribunal remits the applications for Partner (Temporary) (Class UK) visas, with the direction that the first named applicant meets the following criteria for a Subclass 820 (Partner) visa:

    ·cl 820.211(2)(a) of Schedule 2 to the Regulations

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

    Ann Duffield
    Senior 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).