Cherich Dorattioti (Migration)

[2019] AATA 6052

Cherich Dorattioti (Migration) [2019] AATA 6052 (25 October 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Rafael Cherich Dorattioti

CASE NUMBER:  1724618

HOME AFFAIRS REFERENCE(S):           BCC2016/1781427

MEMBER:Peter Smith

DATE:25 October 2019

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 of Schedule 2 to the Regulations

Statement made on 25 October 2019 at 12:40pm

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Spouse) – genuine and continuing relationship – joint ownership of assets and liabilities – pooled financial resources – shared household and expenses – plan and undertake joint social activities – parties represent themselves to others people as being married to each other – credible witness – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5, 65
Migration Regulations 1994 (Cth), r 1.15A, Schedule 2, cl 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 Immigration and Border Protection to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s.65 of the Migration Act 1958 (the Act).

2. Mr Rafael Cherich Dorattioti (the applicant) applied for the visas on 19 May 2016 in which he claimed to be the de facto partner of his sponsoring partner, Mr Duncan Edward Croft. 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 under s.65 of the Act on the basis that the visa applicant did not satisfy the prescribed criteria for the visa as set out in cl.820.211(2)(a) and cl.820.221 because there was insufficient evidence to demonstrate that the parties were, at the time of visa application and at the time of the delegate’s decision

   BACKGROUND

4. The applicant, a national of Brazil, is a 33 year old male from Caieiras, Sao Paulo, Brazil who first arrived and entered Australia on 26 September 2013 as the holder of a Student (subclass 570) visa.

5. Mr Croft is an Australian citizen by birth who is aged 29 years of age.

   THE TRIBUNAL HEARING

6. On 10 October 2017 the applicant made an application to the Tribunal for review of the delegate’s decision to refuse to grant him a Partner (Temporary) (Class UK) visa.  Attached to his application is a copy of the delegate’s Decision Record dated 27 September 2017.

7. The applicant appeared before the Tribunal on 24 October 2019 to give oral evidence and present arguments relating to his application. The Tribunal also received oral evidence from Mr Croft.  The hearing was conducted without the assistance of an interpreter.

8. The applicant was not represented in relation the review. 

9. The Tribunal notes that the applicant has provided the Tribunal with a substantial amount of evidence that was not available to the delegate at the time of visa application and at the time of the delegate’s decision. 

10. For the following reasons, the Tribunal has decided that the matter should be remitted for reconsideration.

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. At the time of visa application the applicant claimed to be the de facto partner of his sponsoring partner which the parties registered on 30 May 2016.  However, the parties have since married and no longer meet the requirements for a de facto relationship.  Accordingly, the Tribunal will proceed to determine whether the parties are in a genuine and continuing spouse relationship at the time of this decision.

    Whether the parties are in a spouse or de facto relationship

12. 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.

13. In the present case the applicant claims to be the spouse of the sponsor who was born in New South Wales on 31 March 1990.  This claim is supported by a certified copy of Mr Croft’s Birth Certificate issued by the New South Wales Births, Deaths and Marriages on 2 July 1990.  The Birth Certificate provides that Mr Croft was born in New South Wales on 31 March 1990.  On this evidence, I am satisfied that the sponsor was at the time of visa application and at the time of the delegate’s decision an Australian citizen.

14. ‘Spouse’ is defined in s.5F of the Act and provides that a person is the spouse of another where the two persons are in a married relationship. Persons in a married relationship must be married to each other under a marriage that is valid for the purposes of the Act, there must be a mutual commitment to a shared life as a married couple to the exclusion of all others, the relationship must be genuine and continuing, and the couple must live together, or not live separately and apart on a permanent basis: s.5F(2)(a)-(d). In forming an opinion about these matters, regard must be had to all of the circumstances of the relationship. This includes evidence of the financial and social aspects and the nature of the parties’ household and their commitment to each other as set out in r.1.15A(3), which is extracted in the attachment to this decision. Each of the specific matters contained in r.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.

16. Neither party made any claims of any previous de facto relationships or marriages.

17. The applicant claims to have married Mr Croft in New South Wales on 9 April 2018.  In support of this claim the applicant provided to the Tribunal a certified copy of the parties’ Marriage Certificate issued by the New South Wales Births, Deaths and Marriages Registry on 10 April 2018.  The Marriage Certificate provides that the parties’ marriage was solemnized in New South Wales on 9 April 2018.  On this evidence, I am satisfied that the parties were married to each other under a marriage that is valid for the purposes of the Act as required by s.5F(2)(a).

    Are the other requirements for a spouse relationship met?

    The financial aspects of the parties’ relationship

18. The first factor I must consider under reg.1.15A of the Regulations is the financial aspects of the parties' relationship.  In considering this factor, I must have regard to all of the circumstances of the parties' relationship, including whether the parties have any joint ownership of real estate or other major assets, whether the parties have any joint liabilities, the extent of any pooling of financial resources, especially in relation to major financial commitments, whether one party to the relationship owes any legal obligation to the other, and the basis of any sharing of day-to-day household expenses.

19. There does not appear to be any evidence before the Tribunal that the parties have any joint ownership of real estate.  As the applicant’s visa status has remained undetermined for some time, it cannot be expected that the parties would be able to make any joint purchase of real estate.  In these circumstances, I give this evidence very little weight.

20. However, I note that the parties have engaged in meaningful discussions with one another about purchasing their first home.  There is evidence before the Tribunal that the parties have discussed saving for a deposit.  To work towards that goal the parties have opened a joint savings account with the Commonwealth Bank of Australia (the CBA) and have recently opened an account with ING Direct.  Prior to the hearing the applicant provided extensive copies of bank statements of the parties’ savings account with the CBA.  The statements cover the period 18 February 2016 to October 2019.  The statements show that the parties regularly transfer money from their own bank accounts to their joint savings account.  In my view this is normal in a genuine and continuing relationship.  I accept this evidence.  I give this evidence some weight.

21. Further, the parties have made other decisions about their financial affairs to assist them towards purchasing their first home.  For example, the parties have paid off the credit cards debts and have cancelled those cards to minimise their debts.  In my view this is normal in a genuine and continuing relationship.  I accept this evidence.  I give this evidence some weight.

22. There is evidence before the Tribunal that the parties purchased a motor vehicle for personal and professional purposes.  I accept this evidence.  I give this evidence some weight.

23. There is evidence before the Tribunal that both parties are included on the parties’ car insurance policy.  I accept this evidence.  I give this evidence some weight.

24. There is evidence before the Tribunal that the parties have purchased items of furniture and electrical appliances for their home.  I accept this evidence.  I give this evidence some weight.

25. There is evidence before the Tribunal that the parties have joint liabilities.  In particular there is evidence that the parties have two credit cards.  There is evidence that the parties have joint Mastercard with the CBA and a joint credit card with American Express.  The Tribunal recognizes that this evidence represents the parties pooling and combining their financial resources.  I accept this evidence.  I give this evidence some weight.

26. There is evidence before the Tribunal that the parties owe each other a legal obligation to repay the two credit cards they held in joint names.  I accept this evidence.  I give this evidence some weight.

27. There is extensive evidence before the Tribunal that the parties share in the payment of day-to-day household expenses such as rent, utilities and groceries. I accept this evidence.  I give this evidence some weight.

28. There is evidence before the Tribunal that when the sponsor was not working the applicant provided financial support to him and was responsible for the payment of household expenses.  In my view this is normal in a genuine and continuing relationship.  I accept this evidence.  I give this evidence some weight

    The nature of the parties’ household  

29. The second factor I must consider under reg.1.15A of the Regulations is the nature of the parties’ household.  In considering this factor, I must have regard to all of the circumstances of the parties’ relationship, including whether the parties have any joint responsibility for the care and support of children, the living arrangements of the parties, and any sharing of the responsibility for housework.

30. There does not appear to be any evidence before the Tribunal that the parties have any joint responsibility for the care and support of children.  In the circumstances of the present case, I give this very little weight.

31. There is however evidence before the Tribunal that the parties have had meaningful discussions with each other and their family and friends about having children.  The parties acknowledged at the hearing that their options are limited to surrogacy and/or adoption. The parties also acknowledged that the laws around surrogacy are complicated and can be costly.  I give this evidence some weight.

32. There is evidence before the Tribunal that the parties share a two bedroom apartment at Hornsby.  The parties told the Tribunal that they share a bedroom and the second bedroom is used for an office is used by both parties.  There is evidence before the Tribunal that the parties have shared other accommodation together prior to moving to their current residence.  The Tribunal has been provided with extensive documentation that shows that the parties live at their current address.  On this evidence and from the oral evidence of the parties, I am satisfied that the parties have shared a household together.  I give this evidence some weight.

33. The parties gave consistent evidence at the hearing about the sharing of household chores. The parties told the Tribunal that the applicant cooks the meals.  The parties told the Tribunal that the parties do the grocery shopping together.  The parties told the Tribunal that the sponsor washes the parties’ clothes early in the mornings when he gets up and that the sponsor vacuums the floors.  I accept this evidence.  I give this evidence some weight. 

    The social aspects of the parties’ relationship

34. The third factor I must consider under reg.1.15A of the Regulations is the social aspects of the parties’ relationship.  In considering this factor, I must have regard to all of the circumstances of the parties’ relationship, including whether the parties represent themselves to other people as being married to each other, the opinion of the parties' friends and acquaintances about the nature of the relationship, and the basis on which the parties plan and undertake joint social activities.

35. There is evidence before the Tribunal that prior to 9 April 2018 the parties represented themselves to other people as being in a de facto relationship.  However, since April 2018 there is evidence before the Tribunal that the parties represent themselves to other people as being married to each other. 

36. The Tribunal has been provided with a statement from the sponsor’s sister, Ashleigh Grey.  Mr Grey was also one of the parties’ witnesses to their wedding.  In Ms Grey’s opinion she believes that the parties are in a genuine and continuing relationship with each other.  Ms Grey refers to the parties moving into an apartment together and their plans to have children.  She also refers to the applicant being accepted by her family.  I accept the evidence given by Ms Grey.  I give this evidence some weight.  

37. The Tribunal has been provided with a statement from the sponsor’s mother, Elizabeth Croft.  In the opinion of Ms Croft she believes that the parties are in a genuine and continuing relationship with each other.  Ms Croft refers to when the parties first met and when the applicant would visit her home to see the sponsor.  Ms Croft refers to helping the parties move into their first place in April 2016.  Ms Croft refers to speaking with the applicant each week.  Ms Croft refers to having dinner with the parties at their home regularly.  I accept Ms Croft’s evidence. 

38. The Tribunal has been provided with a statement from the parties’ friend, Courtney Laurie who also attended the hearing on 24 October 2019.  In Ms Laurie’s opinion she believes that the parties are in a genuine and continuing relationship.  Ms Laurie refers to having spent time with the parties at their home.  Ms Laurie refers to the parties spending time together and their shared travel interests.  I accept Ms Laurie’s evidence.

39. The Tribunal has been provided with a statement from the parties’ friend, Michael Murphy.  In the opinion of Mr Murphy he believes that the parties are in a genuine and continuing relationship.  Mr Murphy refers to the interaction between the parties and the manner in which the parties greet each other and the way in which the parties would show interest in each other.  I accept Mr Murphy’s evidence.

40. The Tribunal has been provided with a statement from Elisangela Da Silva Santos, a friend to the applicant’s family.  In the opinion of Ms Da Silva Santos she believes that the parties are in a genuine and continuing relationship.  Ms Da Silva Santos refers to attending social gatherings with the parties including eating out together and having weekly contact with the parties.  Ms Da Silva Santos refers to the parties taking care and responsibility in respect of each other.  Ms Da Silva Santos refers to the parties organising things together, taking holidays together.  I accept the evidence of Ms Da Silva Santos.

41. There is evidence before the Tribunal that the parties plan and undertake joint social activities together.  There is evidence before the Tribunal that the parties plan and undertake joint holidays together and socialize with friends and family.  There is evidence that the parties travel with other couples to go skiing.  I accept this evidence.

42. The Tribunal notes the photographic evidence provided to the Tribunal by the applicant that shows the parties socializing together and with other people.  I give this evidence some weight.

    The nature of the parties’ commitment to each other

43. The fourth factor I must consider under reg.1.15A of the Regulations is the nature of the parties’ commitment to each other. In considering this factor, I must have regard to all of the circumstances of the parties’ relationship, including the duration of the relationship, the length of time during which the parties have lived together, the degree of companionship and emotional support that the parties draw from each other, and whether the parties’ see the relationship as a long-term one.

44. I accept that the parties met each other on line in 2013.  I accept that the parties met each other in person in Lindfield on 5 August 2014.  I accept that the parties committed to a shared life to the exclusion of all others on 20 April 2016.

45. The parties registered their relationship with the New South Wales Births, Deaths and Marriages on 30 May 2016.  I accept that the parties registered their relationship on 30 May 2016 as there is a Relationship Certificate issued by the Registrar of the New South Wales Births, Deaths and Marriages on 30 May 2016 which confirms the registration of the parties’ relationship. 

46. The parties claim to have married each other on 9 April 2018.  I accept that the parties are validly married to each other for the purposes of s.5F(2) of the Act.

47. I accept that the parties have been in a relationship that is genuine and continuing since 5 August 2014.  Accordingly, the duration of the parties’ relationship is over 5 years.  I recognize that this is a significant period of time.

48. I accept the evidence before the Tribunal that the parties have lived together since April 2016.  According, the length of time in which the parties have lived together is over 3.5 years.  I give this evidence some weight.

49. There is evidence before the Tribunal that the applicant provided companionship and emotional support to the sponsor when his grandfather and aunt passed away.  The parties told the Tribunal that when the sponsors grandfather and aunt passed away the applicant provided comfort and support to the sponsor and also stayed with him at his grandmother’s house to support her.  In my view this is normal in a genuine and continuing relationship.  I accept this evidence and give it some weight.

50. I am satisfied that the parties see their relationship with each other as a long-term one because they appear to be engaged with each other and appear to have had meaningful discussions about their relationship and appear to have had measured and matured discussions with each other about significant decisions relating to their future.

    CONCLUSION

51. I had the benefit of hearing from the parties at the hearing and observing the interaction between them.  I formed a positive view of the parties and found them to be highly credible witnesses.  Their evidence was cogent, consistent and not rehearsed.  Based on the evidence before the Tribunal and from my observations at the hearing I find that the parties are in a genuine and continuing spouse relationship.

52. On the basis of the above the Tribunal is satisfied that the requirements of s.5F(2) are met at the time of visa application and at the time of this decision.

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

2. Given the findings above, the appropriate course is to remit the application for reconsideration.

   DECISION

3. 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 of Schedule 2 to the Regulations

   Peter Smith
   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).