Carrion Manrique (Migration)

[2020] AATA 1688

Carrion Manrique (Migration) [2020] AATA 1688 (26 February 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Adolfo Carrion Manrique

CASE NUMBER:  1820253

HOME AFFAIRS REFERENCE(S):          BCC2016/2528982

MEMBER:Russell Matheson

DATE:26 February 2020

PLACE OF DECISION:  Sydney

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

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

·cl.820.221(1) of Schedule 2 to the Regulations; and

·r.2.03A.

Statement made on 26 February 2020 at 2:03pm

CATCHWORDS

MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – genuine and continuing relationship – limited evidence of pooling of financial resources – limited social life – family attendance at their wedding – strong degree of companionship and emotional support – decision under review remitted           

LEGISLATION

Migration Act 1958, ss 5, 65
Migration Regulations 1994, Schedule 2, cls 820.211, 820.221; rr 1.09, 1.15, 2.03

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 applicant a Partner (Temporary) (Class UK) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant is a 35- year-old male national of Peru born in July 1984. He applied for the visa on 31 July 2016 on the basis of his relationship with his 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 (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria.

3. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.820.211(2)(a) because the delegate was not satisfied the applicant was the de facto partner of the sponsor. The applicant seeks review of the delegate’s decision.

4. The applicant appeared before the Tribunal on 17 December 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor and a friend of the sponsor (witness). The Tribunal hearing was conducted with the assistance of an interpreter in the Spanish and English languages.

5. The applicant was represented in relation to the review by his registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is whether the applicant is the de facto partner of the sponsor as defined in s.5CB of the Act and r.1.09A of the Regulations at the time of application, and additionally whether the applicant is the spouse of the sponsor as defined in s.5F and r.1.15A at the time of decision.

8. The Tribunal has before it the Department of Immigration (the Department) file relating to the applicant; its own file; and a copy of the Department’s decision provided by the applicant to the Tribunal.

9. The evidence the parties provided at the Tribunal hearing is recorded throughout this decision record.

   Whether the parties are in a spouse or de facto relationship

10. Clause 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 de facto partner of the sponsor who is an Australian citizen at the time of application, and to be the sponsor’s spouse at the time of decision.

    Are the parties in a de facto relationship?

11. 'De facto partner' is defined in s.5CB of the Act, which provides that a person is in a de facto relationship with another person to whom they are not married if they have a mutual commitment to a shared life to the exclusion of all others, the relationship is genuine and continuing, the couple live together, or do not live separately and apart on a permanent basis, and the couple are not related by family: s.5CB(2).

12. In forming an opinion whether they are in a de facto relationship, consideration must be given 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 r.1.09A(3) which is attached to this decision. Each of the specific matters contained in r.1.09A(3), are effectively questions which must be answered: He v MIBP [2017] FCAFC 206.

13. The Tribunal has considered the documentary evidence submitted with the application and the additional documentary evidence that has been submitted to the Tribunal. The Tribunal has also had the benefit of the oral evidence of the applicant and the sponsor and a friend of the sponsor. The Tribunal found the applicant, the sponsor and witness to be credible witnesses who presented detailed and consistent evidence during the hearing.

14. The Tribunal acknowledges the delegate’s concerns set out in the primary decision record. The Tribunal discussed these with the applicant and the sponsor in the course of the hearing and the Tribunal is satisfied that the explanations offered are genuine and plausible.

    Financial aspects

15. The Tribunal has considered the financial aspects of the relationship including any joint ownership of real estate or major assets, any joint liabilities, the extent of any pooling or sharing of financial resources, especially in relation to major financial commitments, whether any person in the relationship owes any legal obligation in respect of the other, and the basis of any sharing of daily household expenses.

16. The parties gave evidence that the sponsor is the sole income earner and that the applicant is reliant upon him for financial support. The parties stated that they operate a joint account with National Australia Bank and that the sponsor deposits money into the account for the applicant to use for his day-to-day living expenses and grocery shopping. The parties produced evidence of two debit cards, #0088 and #0112, linked to the joint account. The parties provided statements for the joint account for the period August 2016 to April 2018 to the Department and additional statements to the Tribunal for the period from April 2018 to October 2019. The statements indicate the account mainly being utilised by the applicant’s debit card #0112, mainly for small daily expenses. There is no evidence of the sponsor’s wages being deposited into the account or payment of bills from the account. The sponsor gave evidence that he provides the financial resources to pay the bills. The applicant gave evidence that he pays the household bills from the joint account. The parties provided documentary evidence of this occurring.

17. The parties have provided retail receipts for household purchases such as furniture and household appliances in the applicant’s name at their current address, from Fantastic Furniture, Myer, Harvey Norman and Office Works, for the dates that include:

    ·    13 April 2014;

    ·    24 April 2014;

    ·    3 March 2015;

    ·    20 October 2015;

    ·    29 December 2015;

    ·    21 January 2017; and

    ·    4 February 2018.

18. There is limited evidence before the Tribunal of any pooling or sharing of financial resources between the parties prior to the visa application on 31 July 2016. The Tribunal accepts the parties purchased some household items prior to the visa application in July 2016.

19. There is no evidence before the Tribunal that the parties have any joint ownership of real estate, major assets, joint liabilities or any one person in the relationship owes any legal obligation in respect of the other. The applicant has provided limited information regarding the financial aspects of the parties’ relationship in relation to any pooling and sharing of financial resources or sharing of daily living expenses. The Tribunal places little weight on this aspect of the relationship.

    Nature of the household

20. The Tribunal has considered the nature of the household, including any joint responsibility for the care and support of children if any, the living arrangements of the parties and the sharing of the responsibility for housework.

21. The parties stated that since the inception of their relationship as a couple, the sponsor has been the sole income earner, providing the financial resources for the parties to live a comfortable life. They further stated that the applicant does the housework such as, cleaning, cooking, grocery shopping and the laundry. The parties gave evidence that they are currently living in a rental property in Mascot in N.S.W. and provided a tenancy agreement in joint names as evidence. They provided detailed and consistent evidence of their personal history, living arrangements, daily routine, household purchases, care and support for each other and the household responsibilities and duties. The parties provided numerous documents and correspondence in their individual names for their current address at Mascot.

22. The Tribunal accepts that the parties live together and they have established a joint household and share the responsibility of the housework. There are no children of the relationship.

    Social aspects

23. The Tribunal considered the social aspects of the relationship, including whether the parties represent themselves to other people as being in a relationship with each other, the opinion of friends and acquaintances about the nature of the relationship, and any basis on which the parties plan and undertake social activities.

24. The parties provided the following evidence regarding the social aspects of their relationship that include:

    ·Photographs socialising;

    ·Wedding photographs;

    ·Form 888 statutory declarations and support letters from third parties; 

    ·Greeting cards, invitations and postcards; and

    ·Individual statements.

25. The Tribunal does not consider invitations, greeting cards and postcards are convincing evidence that the parties are in a de-facto or partner relationship.

26. The applicant and sponsor provided two statutory declarations from co-workers of the sponsor to the Department with the visa application. The declarations confirm that the declarants have met the applicant and have known the sponsor for a considerable amount of time and socialise with them at parties. However, although these statements indicated that they know the parties, the statements do not give convincing reasons as to why they believe that the relationship is genuine and continuing and give no insight to the inception and development of the relationship. The Tribunal places little weight on the declarations.

27. The parties also provided a letter of support from the sponsor’s mother in regard to the genuineness of their relationship. The sponsor’s mother states that she has been aware of the parties’ relationship since October 2013 and the applicant has been welcomed into the family and is much loved. She further states that she attended the parties’ wedding with her daughter and granddaughter and that she has visited the parties on a number of occasions, travelling from Ireland over the years, and the applicant takes good care of her when her son is working.  The Tribunal places some positive weight on the sponsor’s mother’s letter of support.

28. The sponsor gave evidence that he works long hours during the day and the parties spend their evening’s together, usually eating takeaway.

29. The sponsor provided evidence that the parties lead a limited social life and outside his immediate family only two people know of his relationship with the applicant. He further stated that the two people the parties socialise with are his workmates Steven and Gary who invite them to their homes occasionally for a barbeque or meals with their families.

30. The sponsor stated that the parties have not travelled much together due to his work commitments but did travel to Adelaide on one occasion by plane and drove back to Sydney after purchasing a new car.  

31. The sponsor gave evidence that his family have accepted the applicant as his partner and fully support their relationship and that his mother and sister and niece attended their wedding. The sponsor stated that his family travel from Ireland annually to visit the parties and the applicant takes care of them and takes them sight-seeing.

32. The parties have provided photos taken of themselves with each other, and with friends and family on holidays. The Tribunal accepts the parties have undertaken limited joint social activities with a select group of people, met each other’s families and have travelled once interstate together.

33. Overall, there is limited evidence that the parties present themselves to other people as being in a relationship with each other or that they undertake regular joint social activities, or have taken holidays or short breaks together, or that they have attended any significant events together or that they belong to any organisations or groups.

34. The Tribunal places little weight on this aspect of the relationship.

    Commitment

35. The Tribunal has considered the nature of the parties’ commitment to each other, including the duration of the relationship, the length of time the parties have lived together, the degree of companionship and emotional support they provide each other, and whether the parties view the relationship as a long-term one.

36. The applicant and sponsor claim to have met at a bar in Sydney in June 2012. They claim to have dated for a few weeks before their relationship developed quickly into a loving and caring relationship and they moved in together, living at Mascot, New South Wales. They committed to a shared life together to the exclusion of all others and were married on 26 November 2018. They lodged an application on 31 July 2016 for a Partner (Temporary) (Class UK) (Subclass 820) visa. The applicant provided a copy of the couple’s marriage certificate. The Tribunal accepts the parties are lawfully married. To date, the parties have been in a relationship for over six years.

37. The applicant and sponsor provided detailed and consistent evidence of their life together including living with and providing care and support to each other during stressful times, particularly in relation to coming out and declaring their same sex relationship. The parties provided persuasive oral evidence of their future plans together and the Tribunal found them to be genuine. The parties provided evidence of their love, mutual care and understanding and support of each other during times of sickness and health.

38. The Tribunal is satisfied that the parties see their relationship as stable, mutually supportive and a long-term one. The Tribunal considers their evidence with regard to their commitment to each other plausible, persuasive and genuine.

39. The Tribunal is satisfied the applicant and the sponsor derive a strong degree of companionship and emotional support from each other that is commensurate with a couple being in a genuine and continuing relationship. The Tribunal is satisfied the couple view their relationship as a long-term one.

    Findings

40. The Tribunal is satisfied that at the time of application the applicant and sponsor had a mutual commitment to a shared life as de facto partners to the exclusion of all others that their relationship is genuine and continuing and that they do not live separately and apart on a permanent basis. The Tribunal has no evidence that the parties’ are related by family. Therefore the applicant meets the requirements of s.5CB(2)(a)-(d) of the Act.

41. The Tribunal is satisfied, having regard to the totality of the circumstances, that the applicant and the sponsor have a mutual commitment to a shared life to the exclusion of all others. The Tribunal is satisfied their relationship is a genuine and continuing relationship. The Tribunal is satisfied they are living together. The Tribunal is satisfied after considering all the circumstances of the relationship, that the parties were in a de facto relationship at the time of application (r.1.09A), and a spousal relationship at the time of decision (r.1.15A).

42. On the basis of the above, the Tribunal is satisfied that the requirements of s.5CB(2)(a)-(d) of the Act were met at the time of application. The Tribunal further finds that at the time of decision the applicant is the spousal partner of the sponsor within the meaning of s.5F(2)(a)-(d) of the Act and meets the requirements of cl.820.221(1) of Schedule 2 to the Regulations.

43. The Tribunal is satisfied that the sponsor is not prohibited from being a sponsoring partner and continues to sponsor the applicant. The Tribunal is satisfied that the sponsor, at the time of the visa application and decision, was an Australian citizen who had turned 18.

44. Furthermore the Tribunal finds that at the time of application the applicant meets the requirements of cl.820.211(2)(a) of Schedule 2 to the Regulations.

45. On the basis of the above the Tribunal is satisfied that the requirements of s.5CB(2) were met at the time the visa application was made.

    Are the additional criteria for a de facto relationship met?

46. Persons claiming to be in a de facto relationship for a partner visa must also meet the additional criteria in r.2.03A. Both members of the couple must be at least 18 years old: r.2.03A(2). In this case, at the time of application, the applicant and the sponsor were at least 18 years old.

47. The applicant must have been in the de facto relationship for at least the 12 month period ending immediately before the date of the application: r.2.03A(3). This requirement will not apply in limited circumstances, such as: where the de facto relationship has been registered under a relevant State or Territory law (for applications made on or after 9 November 2009); where the applicant can establish compelling and compassionate circumstances for the grant of the visa; or in certain circumstances where the sponsor held, holds or is applying for a permanent humanitarian visa.

48. The applicant has provided relationship certificate number 791891/2016 dated 9 September 2016 as evidence that the relationship is registered under the Births, Deaths and Marriages Registration Act 1995 (NSW), as a kind of relationship prescribed in the Acts Interpretation (Registered Relationships) Regulations 2008: r.2.03A(5). Accordingly, the 12 month requirement does not apply.

49. The parties are now married and the Tribunal accepts that they were in a de facto relationship at the time of the application. The Tribunal accepts the parties’ evidence that they formed a committed de facto relationship in July 2016. The Tribunal accepts that the parties were in a lawful de facto relationship because they provided a copy of a New South Wales relationship certificate dated 9 September 2016. The Tribunal is satisfied the relationship has been registered under the law in the state of New South Wales. They were both at least 18 years of age when the application was made.

50. The parties are now married but were in a de facto relationship at the time of application. They were both at least 18 years of age when the application was made. The Tribunal accepts the parties’ evidence that they formed a committed relationship in July 2012. As the visa application was lodged on 31 July 2016, the Tribunal is satisfied the relationship existed for at least 12 months before the visa application was made. For these reasons the Tribunal is satisfied the applicant meets the additional criteria prescribed in r.2.03A  

51. 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

1. The Tribunal remits the application for a Partner (Temporary) (Class UK) visa, with the direction that the applicant meets the following criteria for a Subclass 820 (Partner) visa:

   ·cl.820. 211(2)(a) of Schedule 2 to the Regulations;

   ·cl.820.221(1) of Schedule 2 to the Regulations; and

   ·r.2.03A.

   Russell Matheson
   Member

   
   

   ATTACHMENT - Extract from Migration Regulations 1994

   1.09A  De facto partner and de facto relationship

   (1)For subsection 5CB (3) of the Act, this regulation sets out arrangements for the purpose of determining whether 1 or more of the conditions in paragraphs 5CB (2) (a), (b), (c) and (d) of the Act exist.

   Note 1 See regulation 2.03A for the prescribed criteria applicable to de facto partners.
   Note 2 The effect of subsection 5CB (1) of the Act is that a person is the de facto partner of another person (whether of the same sex or a different sex) if the person is in a de facto relationship with the other person.
   Subsection 5CB (2) sets out conditions about whether a de facto relationship exists, and subsection 5CB (3) permits the regulations to make arrangements in relation to the determination of whether 1 or more of those conditions 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 in a de facto relationship with 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).