Castillo (Migration)

[2024] AATA 3700

Castillo (Migration) [2024] AATA 3700 (3 October 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Cynthia Abello Castillo

REPRESENTATIVE:  Mr Andrew Ardashir Rouyanian

CASE NUMBER:  2107152

HOME AFFAIRS REFERENCE(S):          BCC2019/2023776

MEMBER:Andrew McLean Williams

DATE:3 October 2024

PLACE OF DECISION:  Brisbane

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) of Schedule 2 to the Regulations

·reg 2.03A

Statement made on 03 October 2024 at 12:51pm

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – genuine relationship – requirement to be in relationship for 12 months before application made – instigation and development of relationship – financial, household and social aspects of relationship and nature of commitment – now married – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), ss 5CB(2), 65

MIGRATION REGULATIONS 1994 (CTH), RR 1.09A(3), 1.15A, 2.03A(2), SCHEDULE 2, CLS 820.211(2)(A), 820.221(1)(A)

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 (Cth) (‘the Act’).

2. The Applicant applied for the visa on 22 April 2019 on the basis of her relationship with her sponsor (and now Husband), Mr Stephen John Dalton, who is an Australian citizen and Australian permanent resident.

3. 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 also applicants for the visa need satisfy only the secondary criteria.

4. The Delegate refused to grant the visa on the basis that the visa Applicant did not satisfy clause 820.211(2), because the Delegate was not satisfied on the available evidence that the Applicant and her sponsor had been in a de facto relationship for 12 months prior to lodgement of the visa application on 22 April 2019, in circumstances in which there were considered to be no grounds to afford a basis to waive the 12-month requirement.

5. The Applicant appeared before the Tribunal on 3 October 2024 to give evidence and make submissions. The Tribunal also received oral evidence from the Applicant’s sponsor (and now husband) Mr Stephen Dalton.

6. The Applicant was represented in relation to the review by Mr Andrew Rouyanian of Australink Alliance Migration Lawyers.  Mr Rouyanian also attended the Tribunal hearing on 3 October 2024.  Prior to the hearing, Mr Rouyanian had submitted documentary evidence, including a number of statutory declarations, demonstrating the genuineness of the Applicant’s relationship with Mr Dalton, for consideration by the Tribunal.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether the Applicant, Ms Cynthia Abello Castillo (‘Cynthia’) was in a genuine de-facto relationship with Mr Stephen John Dalton (‘Stephen’) as is required by clause 820.211(2) of the Regulations.

   Whether the parties are in a spouse or de facto relationship?

9. Clause 820.211(2)(a), and clause 820.221 require that at the time the visa application was made, and at the time of this decision, the Applicant be the ‘spouse’ or ‘de facto partner’ of an Australian citizen or Australian permanent resident or an eligible New Zealand citizen, who mis nominated as their sponsor.

10. In the present case Cynthia claims to be the de facto partner of her sponsor Stephen, who is an Australian citizen and permanent resident. 

11. Stephen and Cynthia were validly married to each other on 9 April 2022 and remain happily married to this date.  As such, the Tribunal is already sufficiently satisfied that Stephen and Cynthia are in a genuine spousal relationship as at the date of the Tribunal’s decision.  In these circumstances all that needs to be considered is the further requirement that they were also in a genuine de facto relationship as at the date of the original visa application, which was 22 April 2019. 

12. Regulation 2.03A imposes two additional criteria in the case of Applicants who are claiming to be in a de facto relationship.  These are that the Applicant and the sponsor both be over the age of 18 years of age at the time of application (here, both Cynthia and Stephen meet this criteria), and, that as a minimum, the de facto relationship had existed for a period of at least twelve months prior to the date of the visa application.  Satisfaction of this requirement requires evidence of the bona fides of the de facto relationship between Cynthia and Stephen over the twelve months from 21 April 2018 until 21 April 2019.

    Are the parties in a de facto relationship?

13. '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).

14. 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 regulation 1.09A(3) which is attached to this decision. Each of the specific matters contained in regulation 1.09A(3) are effectively questions which must be answered: He v MIBP [2017] FCAFC 206.

15. Cynthia and Stephen are both middle-aged, and were each divorcees who had been single for a number of years.  Both of them were at the stage at which they were now anxious to meet a new life partner.  Initially, Cynthia and Stephen met by way of a dating site ‘Filipino Cupid’.  This was in about December, 2017.  After communicating with each other by means of that dating site for a few further weeks, they moved their communications off the dating site, and onto Skype and Facebook Messenger.  Both Cynthia and Stephen informed the Tribunal that from the point of their first meeting online their dealings with one another had been exclusive, and that neither of them were simultaneously pursuing any other potential partners.

16. By February 2018, arrangements were being made for Stephen to travel to Cabanatuan in the Philippines for the couple to meet in person for the first time.  Stephen arrived in Cabanatuan on 30 March 2018, and was met at his hotel by Cynthia.  Having already established a strong relationship with one another by means of their prior online communications, the couple commenced to cohabit immediately. The remainder of that trip was spent together, and with Cynthia introducing Stephen to her wider family in the Philippines as her new partner.  After a few weeks, Stephen was required to return to Australia because of his job commitments.  At that juncture the couple resumed their on-line relationship. 

17. Cynthia arrived in Australia on 21 June 2018 on a visitor visa, which was subsequently extended, after which an application was made for a partner visa on 22 April 2019. 

18. Immediately upon her arrival Cynthia and Stephen resumed cohabiting in Stephen’s home.  Cynthia has not departed Australia since her first arrival.  Cynthia and Stephen are constant companions and engage in all domestic and social activities together. 

19. In relation to the various matters identified in regulation 1.15A, the Tribunal notes the following:

    (i)Financial aspects of the relationship – initially upon her arrival in Australia Cynthia was fully financially supported by Stephen, given that she was unable to work until such time as an application had been made for a partner visa.  Cynthia and Stephen have a joint bank account, and all household expenses are paid from their joint account.  Now that Cynthia has employment - working as a hotel housemaid - her wages are also paid into their joint bank account.  Cynthia has been named as a beneficiary on Stephen’s superannuation and Cynthia contributes financially to the mortgage.  Jointly pooled monies are periodically remitted to the Philippines by the couple, to assist Cynthia’s young adult children who are still in the Philippines.

    (ii)Nature of the household – Stephen and Cynthia have a combined household in which they share the full suite of domestic/household responsibilities.  They live together and sleep together in the same bed.  They own a pet dog together.

    (iii)Social aspects of the relationship – each of Stephen and Cynthia hold themselves out within their circle of social acquaintances as being in a couple relationship with each other, and they attend most social and public events together. Cynthia and Stephen share a mutual hobby restoring classic cars and attending car shows together.  Stephen plays cricket, and Cynthia attends Stephen’s cricket matches as a supporter.

    (iv)Nature of persons’ commitment to each other:  Both Cynthia and Stephen view their relationship as an exclusive long-term marital relationship. They have lived together (or at least on a basis that they are not permanently apart) on an exclusive basis from 30 March 2018 (although their relationship was an exclusive one from about January 2018); one in which they provide one another with the degree of companionship and emotional support as may ordinarily be expected from any conventional exclusive couple relationship.

    (v)Any other circumstances of the relationship:  There are no other specific aspects or circumstances of the relationship between Cynthia and Stephen that warrant any mention by the Tribunal.

    (vi)Whether the parties are related by family: Cynthia and Stephen are not related by family.

    On the basis of the foregoing the Tribunal is satisfied that Stephen and Cynthia have a mutual commitment to a shared life together to the exclusion of others; that their relationship is genuine and continuing; and that they have lived together / or not separately and apart on a permanent basis) since 30 March 2018.  Cynthia and Stephen are not related by family.

20. On the basis of the above the Tribunal is satisfied that the requirements of s.5CB(2) are met both at the time the visa application was made and at the time of this decision. In particular, the Tribunal records that it is satisfied that Cynthia and Stephen were in an exclusive de facto relationship for at least twelve months prior to the date of the visa application on 22 April 2019.

21. Therefore, the Applicant meets clause 820.211(2)(a) and clause 820.221(1)(a).

    Are the additional criteria for a de facto relationship met?

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

23. 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: reg 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.

24. There is no evidence that the relationship is registered under a relevant State or Territory law or that Stephen, as the sponsor, held, holds or is applying for a permanent humanitarian visa, so they must meet the 12-month requirement. Previously the Tribunal has recorded that it is satisfied that Cynthia had been in the de facto relationship for at least the 12-month period ending immediately before the date of the partner visa application.

25. For these reasons the Tribunal is satisfied that the Applicant meets the additional criteria prescribed in regulation 2.03A.

26. 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

27. 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)(a) of Schedule 2 to the Regulations

    ·reg 2.03A

    Andrew McLean Williams
    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).