Camero (Migration)

Camero (Migration) [2021] AATA 1922 (24 April 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ms Maricor Lanante Camero
CASE NUMBER:  1801161
DIBP REFERENCE(S):  BCC2014/2108955 CLF2018/1658 CLF2018/5008

MEMBER:Helena Claringbold
DATE:24 April 2021
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Partner (Residence) (Class BS) visa.

Statement made on 24 April 2021 at 7:54am

CATCHWORDS
MIGRATION – Partner (Residence) (Class BS) visa – Subclass 801 (Partner) – genuine spousal relationship – financial aspects – nature of household – social aspects – nature of commitment – credibility concerns – inconsistent information – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5F, 65
Migration Regulations 1994 (Cth), r 1.15A; Schedule 2, cl 801.221
statement of decision and reasons
APPLICATION FOR REVIEW

On 26 August 2014, Ms Maricor Lanante Camero, the applicant, applied for a Partner (Residence) (Class BS) visa. The application was based on her de facto relationship with Mr Viorel Bulza, the sponsor.
On 15 January 2018, a delegate of the Minister of Immigration and Border Protection refused to grant the visa. The delegate was not satisfied that the applicant and the sponsor were genuine de facto partners. Therefore, the visa applicant did not meet cl.801.221 of Schedule 2 of the Migration Regulations 1994 (the Regulations) made under the Migration Act 1958 (the Act). On 16 January 2018, the visa applicant provided the Tribunal with a copy of the Delegate’s Decision Record. This is a review of the delegate’s decision brought by the visa applicant.
On 22 February 2021, the applicant appeared before the Tribunal to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor. The Tribunal was conducted with the assistance of an interpreter in the Tagalog language.
The Tribunal discussed with the applicant statutory declarations that claimed to be from the applicant and the sponsor and Mr LG. These appeared to the Tribunal to be written by the same person. The applicant told the Tribunal that she had written all of the statutory declarations. The Tribunal will refer to these statutory declarations as claiming to be from the relevant person but written by the applicant. The applicant and the sponsor provided significant inconsistent information at the Tribunal hearing. The applicant and the sponsor have not satisfied the Tribunal that they are credible.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The Tribunal has taken into consideration, individually and completely, the evidence in the Department of Immigration and Border Protection’s (the Department’s) case file and the Tribunal’s case file and the evidence at the Tribunal hearing.
ISSUE
As the parties married on 24 February 2018, the issue in this matter is whether, at the time of decision, the applicant is the spouse of the sponsor as defined in s.5F of the Act.
BACKGROUND
The applicant was born in 1986 in Tacloban City, Philippines. The applicant was previously in a relationship with Mr MMP. There are three children of this relationship born in 2006, 2007 and 2009. In 2016, there are email exchanges between the applicant and the Department about medical exams to be undertaken by the applicant’s children. The applicant explained the difficulties she is experiencing having these completed. She further explained that the children are in the custody of their father.
The sponsor was born in 1956 in Chiscau, Romania. The sponsor was in a married relationship with Ms MB until they divorced in April 1992. From 2010 until 2014 he was in a married relationship Ms AVP. The sponsor has one child born in 1997. On 7 September 1984, the sponsor was granted Australian Citizenship.
The applicant and the sponsor (the parties) were introduced in May 2012 by telephone. In September 2012, they met in person. On 26 August 2014, the applicant lodged an application for a Partner (Temporary) (Class UK) (Subclass 820) visa and a Partner (Residence) (Class BS) (Subclass 801) visa. The application was based on her de facto relationship with the sponsor. On 8 April 2016, the applicant was granted a Subclass 820 visa. On 15 January 2018, the visa applicant was refused a Partner (Residence) (Class BS) visa. On 24 February 2018, the applicant and the sponsor married.
Are the parties in a spouse or de facto relationship?
Relevantly to this matter, cl.801.221(2)(c) requires that at the time of this decision, the applicant is the spouse of the ‘sponsoring partner’, who must be an Australian citizen or Australian permanent resident or an eligible New Zealand citizen who was specified in the related Subclass 820 visa application as the spouse or de facto partner of the applicant. In the present case the applicant claims to be the spouse of the sponsor who is an Australian citizen and was identified in the Subclass 820 visa application. On the evidence before it, the Tribunal is satisfied that the sponsor is the ‘sponsoring partner’ of the applicant.
‘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).
Are the other requirements for a spouse relationship met?
The financial aspects of the parties’ relationship
The parties’ income is derived from their salaries. The sponsor has been employed full time for 28 years and in 2015, the applicant began working in Australia. In an unsigned letter dated February 2014 which is taken to be from the applicant, she stated that she didn’t have money for her children. She sent money through her cousins account in Manila because of Typhoon Yolanda. By January 2014, her boyfriend gave her $600 before she went home for her expenses. This is accompanied by a foreign exchange receipt. On the visa application form generated in August 2014, the applicant declared that she didn’t have permission to work on her visa and therefore had not financially contributed toward everyday household expenses and bills.
In a statutory declaration dated 6 June 2015, claiming to be from the sponsor but written by the applicant, the following is stated, in (June 2013) the applicant returned to the Philippines and the parties remained in contact. He sent money to the applicant and promised to support her. In a statutory declaration dated January 2016, the applicant stated the following. After the sponsor introduced himself to her, he sometimes sent money for her daily needs. After their engagement on 25 December 2012, the sponsor promised to support her daily expenses. Since she obtained employment the parties have shared bills and grocery costs.
In statutory declarations dated August 2016, claiming to be from the applicant and the sponsor but written by the applicant, the following information is provided. The parties have a joint bank account which they put some money into weekly. They also have individual bank accounts. They share daily expenses for groceries, electricity and Foxtel bills. The Tribunal told the applicant that it appeared the statutory declarations had been written by the same person. The applicant responded and stated that she had written all of the statutory declarations.
In her statutory declaration of March 2020, the applicant stated the following. When the sponsor returned to Australia (from the Philippines) in December 2012, he sent her money to help with expenses for herself and her children. The parties share expenses for electricity, food, medicines, clothing, entertainment and holidays. Every day they pool their money to pay the bills and day to day expenses without the need to go to the bank. The sponsor is conservative when it comes to financial management. The parties had a joint bank account but it remained inactive and they closed it.
Banking information that has been provided includes: a letter confirming the opening of a joint bank account ending 0893 on 19 September 2014, joint bank statement dated September 2014 to March 2015 for goal saver account ending 0893. These recorded a credit transaction for $50 and a debit transaction for $40 and a closing balance of $10. A bank letter stated that a joint goal saver account ending 6562, was opened on 2 October 2018. Bank letters addressed to the applicant dated 2017 and September 2018 relate to Mastercard account ending 5501 and another account ending 1495 and NetBank ID ending 3522. Bank letters dated 2014, addressed to the sponsor related to NetBank ID ending 5626.
Various Western Union documents dated 2012 to 2014 record money transferred by the sponsor to the applicant. Another transfer is for money being sent in 2013 to MNSL. Other transfers cannot be read by the Tribunal. Sales orders dated August 2018, are in the applicant’s name, no address is provided. A sales order in the sponsor’s name is for household items. Another document is for online entertainment. It does not have any name associated with it.
Superannuation documents for the applicant are dated 2014 to 2015, 2018 and 2020. The applicant’s children are noted as her beneficiaries and the sponsor is noted as a 10 per cent beneficiary. The nominations for the beneficiaries are non-binding. Superannuation documents for the sponsor are dated 2014 to 2015 and 2017 to 2018 and 2020. These note the applicant as a non-binding beneficiary. A member statement for a redundancy trust dated May 2006 is in the sponsor’s name. It stated that the beneficiaries are as nominated on application. Life insurance policy number ending 8450 commenced in January 2018. This noted the sponsor as the policy owner and the applicant as the nominated beneficiary. A second life insurance policy number ending 8450 commencing on the same date did not list a beneficiary. Both documents list the applicant as the payee through direct debit.
Copies of documents titled ‘Last Will and Testament’ have been provided for the applicant and the sponsor and give the following information. The applicant’s will is noted as being executed and attested on 17 March 2020. The applicant leaves the residue of her real and personal estate to the sponsor. The sponsor’s will, although noted as being executed and attested on 17 March 2020, is unsigned. It noted that the sponsor gives house furniture and appliances and any amount of money in his bank account and superannuation and any residue of his real and personal estate to the applicant. The Tribunal asked the applicant about the executor of these wills and also about the sponsor’s will not being signed. She told the Tribunal that these are historical documents and she would have to check the originals.
Various receipts have been provided; one is related to payment for accommodation in 2018. Others dated in 2018 are in the applicant’s name and are for payment of a religious offering and for the purchase of windows and grills in the Philippines. Ad hoc receipts in the sponsor’s name are for tax free purchases. Various receipts relate to the purchase of goods and services in either the applicant or the sponsor’s name. The receipts give no evidence of how the parties pool their finances.
Electricity accounts are addressed to the parties jointly and are dated January 2018, 2019, 2020 and 2021. There is no evidence of who paid these accounts. Other ad hoc documents relate to the Australian Taxation Office assessments and receipts.
The Tribunal put information to the applicant under s.359AA of the Act. The applicant was told the relevance and the consequence of the information. She was invited to comment on or respond to the information and advised that she could seek additional time to do so. The applicant requested and was granted additional time to respond.
The sponsor told the Tribunal that when the applicant started work (2015), she contributed financially to the household. This information was put to the applicant because it was inconsistent with her evidence that she didn’t contribute financially to the household other than buying small amounts of food because she could see how much the sponsor spent on gambling. In 2017 or 2018 she began contributing financially to the household. She buys what the sponsor needs and items for the house and the parties share bills.
The sponsor told the Tribunal the following. The parties’ joint bank account is still open. They contribute to their joint savings account but he didn’t know how much they had saved. He didn’t know if the applicant had any other bank accounts or a credit card or whether she owed money anywhere. He has a personal bank account where his salary is deposited. He uses this to save for overseas holidays. The electricity account is in his name but is paid jointly. This information was put to the applicant because it was inconsistent with her evidence that the sponsor does not believe in the joint bank account and told her that the parties would have our own bank accounts but would share bills. His salary is deposited into his personal bank account and he buys groceries and pays bills and supports his needs from this account. The electricity account is in joint names and paid jointly. Since 2018, she has been using the parties’ joint savings account. Currently there is more than $10,000 in the account which she saved for the parties’ future. She has another bank account in Australia where her salary is deposited and she pays for groceries, transport and her credit card from this account. She owes $7,000 on her credit card. Another bank account is in the Philippines with 100,000 in it. She deposits savings into this account and uses the money when she goes to the Philippines.
The applicant has not responded to the information put to her at the Tribunal hearing. In a post hearing submission, the applicant provided a letter from Mr MD dated February 2021. He stated that the sponsor had worked for 28 years and the applicant had worked eight years. She also provided a joint utility account summary for supply from 7 October 2020 to January 2021. It recorded a previous payment being made in October 2020 for $375.82. She also provided bank statements in her name dated July 2020 to December 2020. These recorded credit transactions marked as salary and from account ending 6562 and debit transactions to account ending 6562 and on 24 October $375.82 for a utility payment and for other ad hoc purchases.
The parties do not have any joint ownership of real estate or other major assets or any joint liabilities. They do not pool their resources, especially in relation to major financial commitments. They do not owe any legal obligation in respect of the other, other than for their joint bank accounts and joint utility accounts, superannuation nominations and the sponsor and applicant’s wills and the sponsor’s life insurance. While the Tribunal accepts that they are listed as beneficiaries on each other’s superannuation funds, their nominations are non-binding. The copy of the sponsor’s will is unsigned at relevant parts and while the applicant would have legal obligation to the sponsor from the date of signing her will, the Tribunal is cognisant that wills can be changed. Although the sponsor would have legal obligation in relation to his life insurance policy, the Tribunal is also aware that this can be changed. There are no current statements for either of the joint bank accounts and no bank statements provided for the sponsor. The parties claim to have lived together since 2014, yet they appeared to have little understanding of their financial matters. They did not agree on the function of their joint saver account, the sponsor stating that he contributed to the savings but didn’t know how much money was in the account. However, the applicant was adamant that she saved the money in the bank account. The bank statements that have been provided give little insight into how the parties share day-to-day household expenses. The Tribunal accepts that electricity accounts were issued jointly and that one account was paid from the applicant’s bank account. However, the sponsor’s view is that the electricity account was in his name. The receipts that have been provided do not give insight into how the parties pooled their financial matters. There is little other independent evidence to support that the parties share day-to-day household expenses, however on the available evidence the Tribunal accepts that there may have been some sharing of day-to-day household expenses.
The nature of the parties’ household
On 6 June 2015, in a statutory declaration claiming to be from the sponsor but written by the applicant, the following information is provided. He met the applicant on 31 September 2012, in Manila. He stayed for a week initially staying in a hotel before meeting with her family and friends and children. On 18 December 2012, he returned to the Philippines and celebrated his birthday with the applicant. They stayed in a hotel for four days, before going to the applicant’s home. On 22 March 2013, the applicant arrived in Australia. The parties are sharing all their expenses for bills and shopping and their day-to-day needs. The applicant does the cooking and cleaning while the sponsor is at work. While in Australia the parties live as husband and wife. He wants the applicant to live with him in Australia and for her children to also to be in Australia with the parties. On 26 August 2014, the partner visa was lodged.
In a statutory declaration dated January 2016, the applicant stated the following. On 31 September 2012, the parties met and spend their first night in a hotel. The next day they went to her place and he met her family and stayed together for a week. On 18 December 2012, the sponsor returned to the Philippines. They talked about their future and the sponsor wanted her to come to Australia. On 25 December 2012, the parties became engaged in front of her parents and her children. On 23 March 2013, she flew to Australia to be with the sponsor. She cooked and cleaned and did the washing while the sponsor was at work. They live together when the sponsor invites her to come to Australia and treat each other as husband and wife. On 20 June 2013, she returned to the Philippines. On 28 October 2013, she returned to Australia. On 18 January 2014, she returned to the Philippines. On 28 March 2014, she was granted another visa without any conditions which she extended for six months. On 26 August 2014, the parties lodged the partner visa application. They want to ‘fix up’ her children’s papers so that they will be in Australia as soon as possible.
In her statutory declaration of March 2020, the applicant stated the following. In September 2012, the parties stayed in a hotel together. In January 2013, they rented an apartment and lived together. She came to Australia in 2013, on a tourist visa valid for three months. She returned to Australia in March 2014, and the parties lived as husband and wife and married on 24 February 2018. The applicant and the sponsor’s workplaces are in the same compound. The sponsor works in marble and in maintenance personnel. He is provided residential accommodation as part of his employment and this is where the parties live. She does the housework, including the cooking, cleaning, laundry and ironing. However, the sponsor also cooks and helps with housework if he is not working. The parties’ shop for groceries together in Blacktown and care for their cat.
The Tribunal discussed with the applicant statutory declarations dated July and August 2016, from the parties in which they state the following. They both cook and do the grocery shopping. The applicant does the washing and ironing and the sponsor does the vacuuming. The applicant told the Tribunal that the statutory declarations from the applicant and the sponsor were all written by the applicant and the statutory declaration claiming to be from Mr LG, was also written by her. Information put to the applicant and as detailed below is that the sponsor was unaware of information provided to the Department in a statutory declaration claiming to be from him. This led the Tribunal not to be satisfied that the content in the statutory declarations can be relied upon and the Tribunal places little weight on them.

Ms AR had known the applicant for 28 years, as they grew up in the Philippines together and she has known the sponsor for three years. She has witnessed the parties sharing household chores and have an ‘Australian couple way of life’. A letter dated October 2018, is from Mr MD, the director of a company. He stated that the parties have been employed by the company. They have lived for five years at on site accommodation at the Arndell Park address. The accommodation is provided by the company and is inclusive of water and utilities. A letter dated March 2020, also stated that they had lived in onsite accommodation for five years. In a post hearing submission, the applicant provided a letter from Mr MD dated February 2021. He stated that the parties are provided free accommodation, use of water and other utilities in exchange for services. He vouches for their honesty.
The applicant also provided a copy of a patient information consent form dated 1 February 2018. This recorded the patient as the sponsor and his emergency contact details as the applicant. A medical certificate certifies that the sponsor is receiving medical treatment on 23 January 2018 and the applicant will be caring for him. An employee detail form dated January 2018 recorded that the applicant commenced work as a process worker on night shift in January 2015. It recorded the Arndell Park address and the sponsor as her emergency contact. Another personal details form recorded her new surname as Bulza. A tax receipt for a health therapy service in 2018 recorded the applicant as Maricor Bulza as does a letter from the National Bowel Cancer Screening Program.
The Tribunal put information to the applicant under s.359AA of the Act. The applicant was told the relevance and the consequence of the information. She was invited to comment on or respond to the information and advised that she could seek additional time to do so. The applicant requested and was granted additional time to respond.
The sponsor told the Tribunal the following. The parties argued some time ago but he asked the applicant to return because he didn’t like living alone and the applicant takes care of the household. The last time the applicant left the house was two years ago. This information was put to the applicant because it was inconsistent with her evidence that she has not left the house since 2015.
The sponsor told the Tribunal that the parties shopped once a week and last went shopping on the Wednesday or Thursday before the Tribunal hearing and they both paid for the bills. This information was put to the applicant as it is inconsistent with her evidence that the parties last went shopping about six weeks ago.
The sponsor told the Tribunal that the applicant’s children previously lived with their father and that now, perhaps they live with their maternal grandmother. He previously sent money to the applicant to assist with the children. This information was put to the applicant as it is inconsistent with her evidence that her children live with their father and their paternal grandparents. She has supported the children financially since 2013 and sends money on a monthly basis for their daily expenses. The sponsor sends money occasionally to the children for their birthdays or at Christmas time.
The applicant did not respond to the information put to her.
The parties do not have any joint responsibility for the care and support of children. The sponsor’s children are in the custody of their father in the Philippines. The parties provided inconsistent information about the last time the applicant left the family home and when they last went shopping together and about the sponsor’s children’s circumstances. While the Tribunal is inclined to accept that the parties have lived together, it does not accept that they have lived together as de facto or spousal partners as the applicant claimed. The Tribunal accepts that there may have been some sharing of the responsibility of housework.
The social aspects of the parties’ relationship
On 6 June 2015, in a statutory declaration claiming to be from the sponsor, but written by the applicant, the following information is provided. The parties celebrated the applicant’s birthday at a barbeque with friends. Every Sunday the parties go to church. They eat in restaurants. In a statutory declaration dated January 2016, the applicant stated the following. During her visit in March 2013, on weekends the parties went out and visited the sponsor’s daughter, Pamela. They went to restaurants and clubs and fishing and went shopping together. The parties go to church and eat out at restaurants and clubs and attend parties with their friends.
In her statutory declaration of March 2020, the applicant stated the following. When she started living with the sponsor, he introduced her to his daughter, Pamela. She would visit them at least twice a month or during family occasions such as birthdays, Christmas and New Year. The sponsor also introduced her to his workmates. The parties went to the Philippines for their honeymoon at Tacloban City to get the blessing of her parents for their marriage and to share their happiness with her children and family.
The applicant provided a marriage celebrant form of agreement dated January 2018 in the parties’ names. An undated receipt for entry to a club is issued in the parties given names and valid for one day. A travel itinerary in the applicant’s Camero name dated 2013, 2014 and 2016 and ad hoc copies of tickets and boarding passes were also provided.
In a statutory declaration dated 2015, the following information is provided. Ms PB the sponsor’s daughter stated the following. She is in regular contact with the parties who have lived together for three years. She sees them almost daily and has witnessed them doing things together. The sponsor went to the Philippines to see the applicant’s family and spent quality time with her children at their home in Arndell Park. The parties help each other in the household and also go out together. The applicant told the Tribunal that her children had not been to Australia and she had no idea why Ms PB would state that the sponsor had quality time with her children in Australia. Ms RA had known the applicant for 28 years, as they grew up in the Philippines together and she has known the sponsor for three years. She is in contact with the parties almost every day and they see each other every weekend. The sponsor has visited the applicant’s family in the Philippines twice and had a great time with her children. The parties love and respect each other and have lived together as husband and wife for two years. Ms AS has known the sponsor for 28 years and the applicant for two years. The parties live together in the house in front of the factory where she works and she sees and talks to the applicant.
The Tribunal discussed with the applicant statutory declarations dated August 2016, from Mr LG who is the sponsor’s best friend where he stated that he had known the applicant for the three years the parties have lived together. He visits the parties’ home and sometimes stays for a barbeque. The sponsor has visited the applicant’s family twice. The parties support and love each other. The applicant told the Tribunal that she wrote the statutory declaration claiming to be from Mr LG.
In statutory declarations dated 2020 Ms JSH and Ms SS stated the following. Ms JSH is a co-worker of the applicant’s and a friend of the parties for five years. She was bridesmaid at their wedding and often visits their home. In the time she has known the parties she observed their love and dedication to each other. The applicant is seen by her co-workers and the sponsor’s co-workers as a loving, trustworthy partner for the sponsor. Ms SS has been friends of the parties for five years. She sees the parties regularly and will often have a coffee at their place and attends family celebrations. The applicant has a good relationship with the sponsor’s daughter and her family and the sponsor is supportive of the applicant’s children from a previous relationship. All declarants state that the parties’ relationship is genuine.
Various messages are of congratulations to the parties on their wedding and others record them being invited to social events. Photographic evidence depicts the parties together and with others at different locations, some are provided with handwritten captions. Two video recordings show the parties celebrating New Year and the applicant’s birthday.
The applicant told the Tribunal that the parties do not have any regular social life and mainly attend family celebrations.
The Tribunal put information to the applicant under s.359AA of the Act. The applicant was told the relevance and the consequence of the information. She was invited to comment on or respond to the information and advised that she could seek additional time to do so. The applicant requested and was granted additional time to respond.
The sponsor told the Tribunal that on Christmas day 2020 the parties went to a friend’s home. They arrived after 12:00 pm and ate and drank and returned to their home at 10:00 pm. This information was put to the applicant and it is inconsistent with her evidence as follows. On 25 December 2020, she went to her cousins arriving at 9:00 am. She slept over and returned home on 26 December. The sponsor arrived in the afternoon of 25 December and return home at 1:00 am (on the 26^th).
The applicant did not respond to this information.
The Tribunal accepts that the parties represent themselves to other people as being married to each other. However, the Tribunal is concerned about the applicant’s credibility. She provided statutory declarations as part of the visa applications and claimed that they had been provided by the sponsor and Mr LG. Another statutory declaration claiming to be from the sponsor’s daughter provided false information that the sponsor had spent quality time with the applicant’s children in Australia. However, on questioning the applicant told the Tribunal that her children had never been to Australia. In addition, the parties provided inconsistent information about what they did on 25 December 2020. While the Tribunal accepts that the authors of third-party statements believe the parties’ relationship to be genuine, the Tribunal is of the view that these statements do not outweigh the inconsistent information the parties provided to the Tribunal. They also do not outweigh, the false and misleading information provided by the sponsor’s daughter about the applicant’s children. Collectively, this has led the Tribunal to have significant concerns about the parties’ credibility as discussed in this decision record. The Tribunal does not accept that at the time of this decision that the parties plan and undertake social activities together.
The nature of the parties’ commitment to each other
On the form 80 the applicant declared that she arrived in Australia on 23 March 2013 to visit her boyfriend. On 20 June 2013, she departed Australia. On 22 October 2013 she returned to Australia to be with her partner. On 20 January 2014, she departed Australia. On 29 March 2014, she returned to Australia to be with her partner. At another section of the form she stated that she wanted to be with her husband and for them to spend the rest of their lives together and she would love to settle in Australia.
On 6 June 2015, in a statutory declaration claiming to be from the sponsor but written by the applicant, the following information is provided. The parties were introduced to each other by the applicant’s cousin-in-law. At first, he showed the sponsor photographs of the applicant and told him about her. Then the sponsor asked for the applicant’s telephone number. He telephoned the applicant on 19 June 2012 and they talked about their lives and future plans and the applicant told him about her children. He continued to telephone her regularly. He met her on 31 September 2012, in Manila. He stayed for a week, initially staying in a hotel before meeting with her family and friends and children. On 18 December 2012, he returned to the Philippines and celebrated his birthday with the applicant. They stayed in a hotel for four days, before going to the applicant’s home. On 25 December 2012, he surprised the applicant by asking her parents for permission for them to become engaged. He invited her to come to Australia on a three- month tourist visa. He paid for the airline ticket and the applicant arrived on 22 March 2013. While in Australia the parties lived as husband and wife. The applicant returned to the Philippines and the parties remained in contact. On 18 January 2014, the applicant returned to the Philippines. On 28 March 2014, she returned to Australia. She extended her visa for six months. He wants the applicant to live with him in Australia and for her children to also to be in Australia with the parties. On 26 August 2014, the partner visa was lodged. The parties love and respect each other and want to be together forever. The parties are in a de facto relationship and he wants the applicant to settle in Australia. They live as husband and wife and he does not want to be separated from the applicant. They have promised that they will look after each other and will have a baby and will be husband and wife forever. They plan to visit his family in Romania.
In a statutory declaration dated January 2016, the applicant stated the following. In June 2012, the sponsor called and introduced himself to her. They talked about their lives and she told him about her children. The sponsor continued to call her and sometimes sent money for her daily needs. One day he called and asked if he could meet her and her family in person. After that he sent money for her air ticket so that they could meet in Manilla. On 31 September 2012, the parties met and spent their first night in a hotel. The next day they went to her place and he met her family and they stayed together for a week. On 18 December 2012, the sponsor returned to the Philippines. They talked about their future and the sponsor wanted her to come to Australia. On 25 December 2012, the parties became engaged in front of her parents and her children. She considered that she has been in a de facto relationship with the sponsor since their engagement. The sponsor invited her to Australia for three months. On 23 March 2013, she flew to Australia to be with the sponsor. They live together when he invites her to come to Australia and treat each other as husband and wife. On 20 June 2013, she returned to the Philippines. On 28 October 2013, she returned to Australia. On 18 January 2014, she returned to the Philippines. On 28 March 2014, she was granted another visa without any conditions which she extended for six months. On 26 August 2014, the parties lodged the partner visa application. They realised how much they loved each other and didn’t want to be apart. They are planning to have a baby soon. They want to visit the sponsor’s mother in Romania and ‘fix up’ her children’s papers so that they will be in Australia as soon as possible. The parties are treasuring their relationship and will remain as husband and wife forever.
The Tribunal put information to the applicant under s.359AA of the Act. The applicant was told the relevance and the consequence of the information. She was invited to comment on or respond to the information and advised that she could seek additional time to do so. The applicant responded at the Tribunal hearing.
The information put to the applicant is as follows. Information on the Department’s file CLF2018/1658 is that in March 2015, the sponsor wrote to the Department and stated that he wanted to cancel his withdrawal letter for the visa application. He stated that he wanted to continue to sponsor the applicant for the partner visa. The writing in this statutory declaration appears to the Tribunal to be the same writing as the writing in the applicant’s statutory declarations dated March 2016 and December 2015.
Other information put to the applicant is on the Department’s file CLF2018/5008. In January 2018, the Department received the following information. The applicant and the sponsor don’t love each other and just live together. The applicant is using the sponsor to obtain permanent residency. The sponsor asked her several times to leave as things were not working out between them. The applicant left the home but returned because her employment is close to the sponsor’s accommodation. The sponsor does not want the applicant in the house but can’t get the applicant to leave. The applicant does not contribute financially to the household and expects the sponsor to pay for everything and the applicant sends her money overseas.
The applicant responded and stated the following. The sponsor cancelled his sponsorship for the partner visa application. At that time the sponsor was drinking and the parties argued. She wrote the letter cancelling the sponsor’s withdrawal of sponsorship for the partner visa at the direction of the sponsor. When the sponsor is intoxicated, he ‘kicks’ the applicant out (of the home). She stayed in other accommodation but they continued to communicate. The sponsor then asked her to come back stating that it’s easier for you for work.
The Tribunal put information to the applicant under s.359AA of the Act. The applicant was told the relevance and the consequence of the information. She was invited to comment on or respond to the information and advised that she could seek additional time to do so. The applicant requested and was granted additional time to respond.
The sponsor told the Tribunal the following. He didn’t know that he had withdrawn sponsorship for the partner visa. He was unaware that the applicant had written to re-instate the sponsorship but he wanted to sponsor the applicant for the partner visa. The parties argued some time ago but he asked the applicant to return because he didn’t like living alone. However, he believes that the applicant is in the relationship to obtain permanent residency. The parties had no plans for the future. They would live together and get older. This information was put to the applicant because it was inconsistent with her evidence that when the borders open the parties will travel and she will meet the sponsor’s family in Romania. They have not talked about any other plans.
The applicant did not respond to this information.
The applicant told the Tribunal that the parties had not married previously because they loved each other. When the visa was refused, she told the sponsor she would have to leave Australia. He said that he didn’t want to travel to see the applicant and they married because they thought it would make the chances of being granted a visa stronger.
The Tribunal accepts the following. The parties met in 2012. Between March 2013 and March 2014, they lived together for approximately six-and-a-half months. After the applicant returned to Australia on 29 March 2014, the parties continued to live together. On 24 February 2018, the parties married and continued to live together. During their time of living together the applicant left the home and then returned to live with the sponsor. The applicant provided statutory declarations claiming to be from the sponsor and Mr K which she wrote and provided a statement from the sponsor’s daughter that gave false and misleading information, which collectively led the Tribunal to have significant concerns about the applicant and the sponsor’s credibility. The sponsor and the applicant gave inconsistent information about the financial aspects of their relationship and about the social aspects of their relationship and about the nature of their household. When a couple are credible and provide consistent evidence, it gives the Tribunal insight into how the parties live and view their relationship. In this case, as a result of the credibility concerns and the inconsistent information, at the time of decision, the Tribunal does not accept that the parties provide companionship and emotional support to each other or that they see their relationship as long term.

The Tribunal considered the evidence individually and completely including all the aspects of the parties’ relationship such as the financial and social aspects, the nature of the parties’ household and the nature of the parties’ commitment to each other. The Tribunal finds that the parties know each other personally, have socialised and have communicated with each other. However, the Tribunal is not satisfied, at the time of this decision, that the parties are in a genuine spousal relationship.
The Tribunal is not satisfied that, at the time of this decision, that the parties have a mutual commitment to a shared life as a married couple to the exclusion of all others or that they have a genuine and continuing relationship; or that they live together and not separately and apart on a permanent basis.
Given these findings the Tribunal is not satisfied that the requirements of s.5F(2) are met at the time of this decision. Therefore the applicant does not meet cl.801.221(2)(c) of Schedule 2 to the Regulations.
Furthermore, the applicant has not claimed and there is no evidence before the Tribunal, that the applicant meets any of the the alternative criteria for the grant of the visa.
For the reasons above, the applicant does not satisfy the criteria for the grant of the visa.
DECISION
The Tribunal affirms the decision not to grant the applicant a Partner (Residence) (Class BS) visa.
Helena Claringbold
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).

[2021] AATA 1922

24 April 2021

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