Cenu (Migration)

[2023] AATA 546

Cenu (Migration) [2023] AATA 546 (30 January 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Belen Palawag Cenu

REPRESENTATIVE:  Mr Ian Bosley (MARN: 1385515)

CASE NUMBER:  1834923

HOME AFFAIRS REFERENCE(S):          BCC2017/4385866

MEMBER:Naomi Schmitz

DATE:30 January 2023

PLACE OF DECISION:  Melbourne

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; and

·cl 820.221(1) and (4) of Schedule 2 to the Regulations.

Statement made on 30 January 2023 at 8:57am

CATCHWORDS
MIGRATION –Partner (Temporary) (Class UK) visa – Subclass 820 – parties validly married –  genuine and continue married relationship – joint social activities – Form 40SP sponsorship document provided – decision under review remitted  

LEGISLATION
Migration Act 1958, ss, 5F, 65, 359, 360
Migration Regulations 1994, r 1.15, Schedule 2, cls 820.211, 820.221

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 (Cth) (the Act).

2. The applicant applied for the visa on 21 November 2017 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.

3. The delegate refused to grant the visa on the basis that the applicant did not satisfy cl.820.211(2) and cl.820.221 because the delegate was not satisfied that the applicant was being sponsored by a spouse or de facto partner of an Australian citizen, Australian permanent resident or eligible New Zealand citizen. The delegate who considered the application stated that as ‘no sponsorship Form 40SP or other sponsorship information has been provided in support of the application’ that the visa applicant failed to meet cl.820.211. 

4. At the time of application, a Form 40SP was not provided. The Department on two separate occasions contacted the sponsor through his nominated email address and afforded the sponsor the opportunity to provide a Form 40SP. These dates included 24 February 2018 and 23 April 2018. The sponsor failed to provide the Form 40SP with the application.

5. The parties originally met via an on-line dating website in August 2014. Thereafter they communicated daily and arranged to meet in-person in Cenu, Philippines in October 2014 whilst the sponsor was on an overseas business trip. The parties spent approximately a week together and again arranged to meet in December 2014 holidaying in Thailand where they became engaged. The applicant subsequently travelled to Australia in April 2015 to visit the sponsor with her son. Apart from departing Australia for legal reasons or to see family, the applicant has resided with the sponsor since this time, and both claim to be in a genuine and continuing relationship. On 19 September 2015, the parties married.[1] At the time of application, the applicant and sponsor had been in a relationship for approximately three years. The applicant was onshore in Australia at the time of application.

   [1] Certified Queensland Marriage Certificate dated 19 May 2016

6. On 28 November 2018, the applicant applied to the Tribunal for a review of the refusal decision. The applicant provided a copy of the delegate’s decision record to the Tribunal.

7. On 11 August 2022, the Tribunal invited the visa applicant under s.360(1) of the Act to appear at a Tribunal hearing commencing at 9:30 am (VIC and QLD time) on 14 September 2022 to give evidence and present arguments relating to the issues arising in relation to the decision under review. The Tribunal was required to do this because it had considered the information it had and was unable to make a decision favourable to the applicant.

8. The applicant appeared before the Tribunal on 14 September 2022 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor. The Tribunal hearing was conducted with the assistance of an interpreter in the Tagalog and English languages. The applicant was represented in relation to the review. The representative attended the Tribunal hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in the present case is whether the applicant is sponsored. The representative also requested that the Tribunal consider the issue of whether the parties are in a spousal relationship as defined in s.5F of the Act.

11. The applicant and sponsor conceded that limited information was provided at the time of application and that a sponsorship form was not provided. Since that time, the Form 40SP has now been completed. The representative submitted that both at the time of application and time of hearing, exists an overwhelming body of evidence that demonstrates that the parties’ relationship was and is genuine and continuing and as such the requirements for sponsorship approval are met. Despite the visa refusal and the associated stress it has caused to the parties, their relationship has grown and the parties’ commitment to one another has never wavered. The representative submitted that the subsequent history of the applicant and sponsor’s relationship can be considered in testing the genuineness of a relationship at the time of application[2] which the Tribunal accepts.

    Failure to provide sponsorship form

    [2] Bretag v MILGEA [1991] FCA 582

12. At hearing the Tribunal Member asked the sponsor why he failed to lodge the sponsorship form at the time of the original application. The sponsor claimed it was a ‘misunderstanding in communication’. The Tribunal Member also asked why the sponsor had not taken advantage of two further opportunities when requested on 24 February 2018 and 23 April 2018. The sponsor stated he could not remember.

    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.[3]

    [3] Certificate of Australian Citizenship dated 18 July 1991

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 applicant submitted a Queensland marriage certificate dated 19 May 2016 showing the parties married on 19 September 2015. 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).

16. In forming an opinion whether the parties are in a spousal relationship consideration must be given to all the circumstances of the relationship. This includes evidence of the financial and social aspects, the nature of the parties’ household ad their commitment to each other as set out in reg 1.15A(3)(a), (b), (c) and (d), and any other circumstances of the relationship under reg 1.15A(2).

    Information to the Tribunal

17. In addition to materials contained in the Departmental file and Tribunal file, the applicant supplied various documents to the Tribunal including:

    ·A statutory declaration from the sponsor;

    ·Certificate of title showing joint ownership of property, namely four blocks of land (held jointly in the applicant’s and sponsor’s names) in the Philippines;

    ·Architecture plans for property development in the Philippines;

    ·Various receipts acknowledging payment of property development in the Philippines;

    ·Financial documents evidencing a joint bank account;

    ·ANZ Bank and Western Union money remittances/transfers from the sponsor to the applicant’s son (June June) for education and living expense in the Philippines;

    ·The sponsor’s 2021-2022 taxation return showing the applicant as the sponsor’s nominated spouse and that the parties declare themselves to the Australian government as spouses;

    ·The sponsor’s superannuation and will showing the applicant as the sponsor’s death beneficiary;

    ·Flight/itinerary documents and hotel receipts evidencing various overseas travel together; and

    ·Photographic evidence depicting the visa applicant and sponsor together and with family and friends in different settings and over different periods of time.

    Financial aspects

18. The parties have opened a joint bank account. As the applicant has no work rights, she is fully financially supported by the sponsor who is employed full-time as a project manager at a construction firm. The sponsor gives the applicant an allowance and has a credit card linked to his account which he pays off each month. The sponsor meets all the household expenses, including recently paying for the applicant’s mother’s funeral expenses in the Philippines.[4]

    [4] The applicant’s mother passed away one week before the hearing. Although the applicant and sponsor were unable to attend the funeral due to her sudden death, the sponsor’s work commitments, and the inability to arrange short notice flights and accommodation, the parties submitted the payment of the funeral is consistent with the parties being in a genuine spousal relationship and the financial aspects of the relationship.

19. At the hearing, the sponsor gave evidence that the parties have resided together since April 2015 (save for various separations due to the sponsor traveling for work purposes or the applicant departing Australia for legal/visa related issues or to visit her son in the Philippines) and although the parties’ previous and current residential lease are in the sponsor’s name, this is due to the applicant having no work rights, the sponsor having a superior financial capacity and to simplify matters. The sponsor gave frank evidence, and it was apparent to the Tribunal Member that he was not interested in artificially inflating the ‘financial aspects’ of the relationship by having the applicant ‘down on paper’ on leases and bills. The applicant similarly presented as a candid witness, and gave consistent evidence, and did not seek to artificially bolster the financial aspects of the parties’ relationship.

20. Both the applicant and sponsor gave evidence that together they have purchased property in the Philippines, namely four blocks of land which they are developing, including their retirement home and another property. In support, a certificate of title, architecture plans and construction progress payments were provided to the Tribunal which the Tribunal accepts and places significant weight on.

21. Also in support, the sponsor provided a 2021-2022 taxation return where he declared to the Australian Taxation Office (ATO) that the applicant is his nominated spouse. The sponsor also provided a will[5] where the applicant is the sponsor’s sole beneficiary and should the applicant pre-decease the sponsor, the sponsor nominates the applicant’s son ‘June June’ as his sole beneficiary. The applicant is also the nominated beneficiary of the sponsor’s ANZ bank life insurance policy and is the sole beneficiary of the sponsor’s superannuation fund. The parties do not have health insurance, with the sponsor electing to pay a government surcharge through his taxation return. The parties do not have ambulance membership as it is covered by Queensland rates.

    [5] Legal will of sponsor dated 29 August 2017

22. The Tribunal has carefully considered the financial and property documents and the parties’ viva voce (oral) evidence at hearing. The parties presented has highly credible and reliable witnesses and the Tribunal considers the documents filed in support to be of high probative value. This is particularly so in relation to the sponsor declaring the applicant as his spouse to Australian government organisations i.e. the ATO. Although the parties do not ‘pool’ financial resources, limited weight is attached to this aspect due to the applicant not having work rights and therefore limited financial capacity. Overall, the Tribunal is satisfied that the financial aspect of the relationship supports a finding that the parties both at the time of application and time of decision are in a genuine and continuing relationship to the exclusion of all others.  

    Household

23. As outlined above, the sponsor financially supports the applicant. The sponsor also financially supports the applicant’s 19-year-old son June June who resides in the Philippines and is currently studying Medicine at university. In support the sponsor provided to the Tribunal various money transfers/remittances evidencing payment of tuition fees and daily living expenses which the Tribunal accepts and places significant weight on. The sponsor also regards June June as his son and has ‘adopted’ him as his own. The sponsor has purchased June June a study condominium in the Philippines.

24. The parties reside together in Queensland as evidenced by various documents including previous and current leases. The parties have a dog, Max, who they both affectionately referred to as their ‘fur child’ and regard as ‘an important family member’ and enjoy taking for walks together. The applicant mainly undertakes the housework whilst the sponsor works full-time. The parties share cooking duties, with the applicant cooking during the week and the sponsor on the weekend. The parties undertake the food shopping together. Both the applicant and sponsor gave consistent evidence of the same.

25. The parties have undertaken international travel and travelled domestically within Australia, including three overseas trips to the Philippines in October 2016, April 2017 and December 2022, returning in January 2023. This is supported by travel movement records obtained by the Tribunal and flight/travel itinerary documents which the Tribunal places positive weight on in favour of the applicant. The parties have also travelled to Sydney. In January 2023 the parties married in a civil ceremony in the presence of the applicant’s family in the Philippines. These family members had been unable to attend the parties’ original wedding in September 2015. Extensive photographic evidence depicting the parties together over the years of their relationship and with various family members also supports that the parties are viewed as genuine spouses.

26. The Tribunal has carefully considered the documentary evidence and parties’ oral evidence at hearing which the Tribunal regards as reliable and credible. Overall, the Tribunal is satisfied that the household arrangements are such that the parties both at the time of application and decision are living together in a genuine exclusive relationship.

    Social Aspects

27. The parties gave evidence that they are recognised by family in both Australia and the Philippines as being in a genuine and continuing relationship and are socially recognised as spouses. The parties are further recognised by the sponsor’s work colleagues as spouses, with various colleagues attending the applicant and sponsor’s Mooloolaba, Queensland wedding. The sponsor has two children from a former relationship who are aware of the relationship and accept it. The relationship is also accepted by the applicant’s son June June who regards the sponsor as a father figure. He and other members of the applicant’s family have travelled to Australia to visit the couple. Extensive annotated photographic evidence was provided depicting the applicant and sponsor together and with family and friends on social occasions and celebrating specific events which the Tribunal places positive weight on. Statements have also been provided by friends attesting to the relationship being genuine and the fact that the parties represent themselves as being in a genuine spousal relationship and are accepted by the broader community.[6]

    [6] Statutory Declaration Form 888 of Marinella Grace Faggion

28. At hearing the parties gave evidence that they undertake joint activities together, in particular taking their dog Max for walks and enjoying quiet evenings together eating at home or at their favourite restaurants. During the hearing, the Tribunal Member sought to test these claims asking what the parties’ favourite restaurants were, the last movie the parties saw together and details regarding the parties’ daily activities i.e. times the parties respectively wake up, go to work, go to bed, history of employment, salary, and hours of work for the sponsor. The parties provided consistent evidence. The Tribunal Member further noted the ease in which both the applicant and sponsor provided these details, most of which would only be in the esoteric knowledge of a genuine spouse.

29. Overall, the Tribunal is satisfied that there is an overwhelming body of evidence to support the social aspects of the relationship, and that the spousal relationship is genuine and continuing. It is also clear that the parties’ relationship is supported and accepted by the parties’ family and friends.

    Nature and commitment to each other

30. The parties met online in August 2014 and subsequently in person in October 2014 in the Philippines maintaining daily contact in the intervening period. In December 2014, the parties later holidayed in Thailand and became engaged. The applicant subsequently travelled to Australia in April 2015 and the parties have cohabited since (save for a few separations due to the sponsor’s work commitments or the applicant having to leave due to visa/legal requirements) and the parties married on 19 September 2015.

31. The parties have been in a relationship for over eight years. They have resided with one another for approximately seven years and six months. The Tribunal regards the duration of the relationship and time of cohabitation as substantive which the Tribunal places significant weight on.

32. As outlined above, the parties own four blocks of land in the Philippines and have plans to build two homes. They are currently in the process of construction. The Tribunal was provided with architecture plans and title deeds which confirm the same. The sponsor is currently employed as a project manager at a construction firm, with his contract expiring in December 2025. The applicant and sponsor plan to relocate to the Philippines when the sponsor retires in 2025. Upon the lapse of his contract, the sponsor has negotiated to work as a consultant offshore in the Philippines for another five years. The parties explained that despite their spousal relationship, June June has remained in the Philippines to complete his education, as they felt it best for continuity and due to him being accepted into Medicine School, where he is studying in Manila.

1. At the time of hearing the parties were planning a second wedding in the Philippines and provided flight and travel itinerary documents. The Tribunal notes they have also paid for various members of the applicant’s family. Subsequent travel movement checks by the Tribunal show the parties departed and returned to Australia consistent with their oral evidence at hearing and travel documents provided.

2. Overall, the Tribunal is satisfied that the parties have displayed the degree of companionship and emotional support which would be expected for parties who have a mutual commitment to a shared life to the exclusion of all others and that the relationship is genuine and continuing. The parties have plans for their future together which showed that they consider the relationship as long term. The Tribunal Member also found the applicant’s and sponsor’s oral evidence highly persuasive in addition to their documentary evidence which the Tribunal regards as highly probative.

   Conclusion

3. The delegate noted that the applicant had not provided the Form 40SP sponsorship document at the time of application. That document has now been provided by the sponsor to the Department. The failure to provide this document was due to a misunderstanding by the sponsor. At the time the application was lodged, the applicant and sponsor did not have any representation such as a migration agent or lawyer and were unaware of the importance of providing the document. The sponsor and applicant were unfamiliar with Australian government processes and laws and the sponsor assumed responsibility for the preparation and lodgement of the visa application.

4. The Tribunal has carefully considered the representative’s submissions and evidence filed in support. Although the Form 40SP may be one of the clearest ways for a sponsor to provide an undertaking of sponsorship, it need not be in the Form 40SP, as it is not a prescribed form. Rather, it can equally be evidenced by other information in accordance with reg 1.20 and assessment against Schedule 2 criteria as outlined above. The Tribunal finds at the time of application the applicant was sponsored by her spouse who had turned 18 years of age. This is supported by various information contained in the Departmental file, documents submitted to the Tribunal and the sponsor’s oral evidence at hearing identified throughout this decision record which the Tribunal does not propose to repeat here. He continues to sponsor the applicant at the time of this decision. The Tribunal finds the criteria in clause 820.211(2)(c) is met.

5. The Tribunal has considered all the circumstances of the parties’ relationship both individually and cumulatively. The Tribunal finds the weight of evidence supports a finding that at the time of application the parties were in a genuine and continuing spousal relationship and that the parties continue to be in a spousal relationship at the time of decision pursuant to s.5F(2). The Tribunal Member also regarded the applicant and sponsor to be credible and reliable witnesses.

6. 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 of this decision. The Tribunal finds that the applicant meets cl.820.211(2)(a).Therefore, the applicant meets cl 820.211(2) cl 820.221(1) and (4).

7. 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

8. 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; and

   ·cl 820.221(1) and (4) of Schedule 2 to the Regulations.

   Naomi Schmitz
   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).