Decap (Migration)

[2020] AATA 1086

Decap (Migration) [2020] AATA 1086 (3 March 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Rosalie Fernandez Decap

CASE NUMBER:  1801056

HOME AFFAIRS REFERENCE(S):     BCC2015/3013889

MEMBER:C Morfuni

DATE:3 March 2020

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
• r.2.03A

Statement made 3 March 2020 at 8.34am

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) – Subclass 820 (Partner) – de facto relationship for at least 12 months – financial, household and social aspects of relationship – nature of commitment – later valid marriage not an exception to requirements – compelling and compassionate circumstances – sponsor’s age and financial circumstances – marriage not contrived for migration outcomes – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), s 65

Migration Regulations 1994 (Cth), rr 1.09A, 1.15A, 2.03A, Schedule 2, cl 820.211

CASES
He v MIBP [2017] FCAFC 206

Paduano v MIMIA [2005] FCA 211

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 visa applicant (who is also the review applicant) applied for the visa on 15 October 2015 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 (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 5 January 2018 on the basis that the visa applicant did not satisfy cl.820.211(2) because at the date of application for the visa she had not been in a defacto relationship (as defined in section 5CB of the Act) with the sponsor  for at least 12 months ending immediately before the date of the application (see Section 2.03A (3) of the Regulations).

4. The review application was lodged by the applicant on 15 January 2018.

5. In this decision, the review applicant who is also the visa applicant is referred to as the applicant and her sponsor is referred to as the sponsor. Where they are referred to together, they are referred to as the parties.

6. This decision is made in accordance with the President’s direction No. 8.2 for conducting Migration and Refugee Reviews which states: “As a general rule, where the Minister for Immigration (Minister) or delegate has made an adverse decision on particular criteria or issues, the AAT should restrict its review to those matters”. Thus the Tribunal is reviewing the refusal of the Partner (Temporary) (Class UK) subclass 820 visa, referred to in this decision as the 820 visa.

7. The applicant currently holds a visitor (subclass 600 Visa) and is working.

8. The applicant appeared before the Tribunal on 30 January 2020 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor. There were no other witnesses. The hearing was held by video conference with the parties appearing from Swan Hill, Victoria.

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

   Consideration of claims and evidence

10. The issues in the present case are first, whether the parties were in a defacto relationship at the date of application (15 October 2015) and if so secondly, whether at the date of application, under Section 2.03A (3)(b) of the Act, the applicant meets the following requirement being that the Minister  “…must be satisfied that the applicant has been in the defacto relationship for at least the period of 12 months ending immediately before the date of the application”  unless the exceptions under Sub-regulations (4) and (5) of the Section apply.

11. Background:

    Both parties stated in their applications for the visas and the sponsorship that they began their defacto relationship on 19 December 2014 in the Phillipines

    Issue No 1 – were the parties in a defacto relationship as defined in S5CB of the Act at the date of application (15 October 2015)?

12. At the time of application, the applicant must satisfy clause 820.211(1)(b) by satisfying at least one of the subclauses (2), (5), (6), (7), (8) or (9). The Tribunal finds that the applicant may meet subclause (2), He does not meet the other subclauses. The Tribunal has therefore assessed the applicant against subclause 820.211(2).

13. At the date of application, the parties were not married and therefore did not meet the definition of spouse under section 5F but might meet the definition of de facto partner in section 5CB which states that the parties must have a mutual commitment to a shared life, a genuine and continuing relationship, and live together or not separately apart on a permanent basis. The parties must also be assessed pursuant to regulation 1.09A which requires the Tribunal to determine whether, at the date of application the requirements outlined in section 5CB are satisfied. Regulation 1.09A outlines the following provisions: financial aspects of the relationship; the nature of the household; the social aspects of the relationship and the nature of the persons’ commitment to each other.

14. In addition, under regulation 2.03A the minimum age requirement of both the applicant and the sponsor must be over 18 years at the time of application and in the present case, as indicated in regulation 2.03A(3)(a), the de facto relationship must have been in existence for at least the period of 12 months ending immediately before the date of application unless the exceptions under sub- regulation(4) of the section apply. The Tribunal notes that subsequent marriage is not one of the exceptions but that valid registration of the relationship under the Act is an exception.

15. The Tribunal is satisfied that the parties were over 18 years of age at the date of application on 15 October 2015, the applicant then aged 39, born on 9 December 1975 and the sponsor then aged 67 having been born on 23 September 1948. The applicant stated in her application for migration (Df9,Q31) and confirmed by her in oral evidence at the hearing that she has six children who were born in 1997,1999, 2000, 2006, 2007and 2009 and do not reside in Australia and that the sponsor has no children.

16. Both parties stated in their written evidence that their defacto relationship began on 19 December 2014 and that they committed to a shared life together to the exclusion of others on that date as indicated in the Visa application and the sponsorship application.

17. The Tribunal accepts the oral evidence of the sponsor, that the parties were not aware of the 12 month requirement under s 2.03A of the Act at the time that they lodged those applications.

18. In forming an opinion whether the parties are in a de facto relationship consideration must be given to all of the circumstances of the relationship as outlined in paragraph 12 above. This includes evidence of the financial and social aspects, 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).

19. Regulation 1.09A(3)(a), (b), (c) and (d), and any other circumstances of the relationship under r.1.09A(2), i.e.

    (a) Financial aspects of the relationship – including joint ownership of assets; joint liabilities; extent of pooling of financial resources; any legal obligations owed to the other party; any sharing of day-to-day household expenses.

    oThe parties provided Western Union statements dated 5 March 2015 and 1 May 2015 indicating that the sponsor was sending AUD$100.00 to the applicant in the Philippines on both occasions.

    othe sponsor produced a statement from June to September 2017 indicating his Centrelink payments paid into an account with the National Australia Bank in his own name.

    othere is a letter on the Tribunal file (Tf50) from a solicitor to the sponsor dated 15 July 2016 regarding the purchase of a property indicating that the solicitor had received the certificate of title from the land titles office.

    othe sponsor paid the cost of the visas of the applicant.

    othe parties produced an Australian tax office tax file number dated 9 February 2016 for the applicant and annual M LC superannuation statement in the name of the applicant and a tax return statement dated 30 June 2017 together with some copies of documents from 2016 and 2017 indicating her level of pay.

    othe Tribunal notes that the visa applicant is working and has secured a job which would be ongoing if she was in Australia (letter to that effect from her employer was produced).

    oThe tribunal accepted the oral evidence of the sponsor and the written evidence of both parties that the sponsor has voluntarily been supporting the applicant and her children since they met in 2014.

    The Tribunal considered that the evidence overall does not support that at the date of application in 2015 that the parties held joint assets or liabilities, pooled their financial resources and had any legal obligations to the other.

    (b) Nature of the household – including any joint responsibility for care and support of children; parties’ living arrangements; and any sharing of housework.

    oThe parties did not have children. There was little evidence before the Tribunal in relation to the parties living arrangements or sharing of housework. There was an undated statement written to the Tribunal indicating that the parties love each other and that the sponsor supports the applicant and her six children. There was as previously stated, the oral evidence referred to and the Western Union transfers mentioned under financial matters above.

    Whilst the parties do not have children of the relationship the Tribunal notes and accepted on the basis of his oral evidence which it believed, that the sponsor voluntarily provides support for the applicant’s children. The Tribunal is not satisfied overall howeve,r that at the date of application the evidence provided supports the requirements of the nature of the household including any joint responsibility for care and support of children, the parties’ living arrangements and any sharing of housework.The Tribunal finds that none of the elements of r1.15A(3)(b) are met.

    (c) Social aspects of the relationship – including whether parties represent themselves to other people as being in a de facto relationship with each other; the opinion of friends and acquaintances about the nature of the relationship; and any basis on which the persons plan and undertake joint social activities.

    othe parties had lodged statutory declarations dated 4 October 2005 from Peter Rook indicating that he has been a long-standing friend of the sponsor who is honest and that the parties spend their time together and from Kenneth Truswell  (undated but sworn before a JP (folio D 86) indicating his assessment of the geniuiness of the parties’ relationship.

    othe parties presented some photographs together and with other people showing that they socialise with them.

    othe parties provided a 70^th birthday invitation to both of them from a friend for a function on 20 August 2016 and a congratulatory card undated and welcoming the parties to Hopetoun.

    oa statement dated 2 February 2018 from the Visa applicant’s employer indicating that she has worked there since 31 August 2016 and is a valued employee and lives with her partner (the sponsor) in Cohuna Victoria. That the sponsor drives the applicant to and from work morning and afternoon and that her position is open with the employer until she receives her appropriate visa.

    The Tribunal is satisfied overall based on the evidence before it in relation to the social aspects of the relationship at the date of application, including how the parties represented themselves at the date of application to other people, the opinion of friends and acquaintances about the nature of their relationship. The Tribunal accepts the parties’ written statements that they undertook some social activities together. The Tribunal finds that none of the elements of r1.15A(3)(a) are met.

    (d) Nature of persons’ commitment to each other – including duration of the relationship; the length of time they have lived together; degree of companionship and emotional support they draw from each other; and whether they see the relationship as long-term.

    oIn answer to a question from the Tribunal at the hearing, the sponsor stated that the parties did not register their defacto relationship under a State or Territory Law or International convention under Section 2.03A(5)  of the Act

    othey married on 14 July 2018 in Cohuna Victoria, Australia (copy marriage certificate provided), however the Tribunal notes that subsequent marriage is not an exception under Section 2.03A(5)  of the Act..

    ovarious receipts were provided to the Tribunal, for example a petrol receipt dated 2017.

    oa hand written statement from the sponsor undated (Tf41) addressed to the Tribunal indicating that he supported the applicant and her six children and that they go camping and fishing. He indicated that he bought a friend’s house which was run down, that the parties lived in a caravan for a time and live now in a functional apartment in Cohuna. He indicated that the applicant works at a farm and that he drives her early in the morning and picks her up when she finishes work and that the work is some distance from their home.

    othe sponsor indicates that the parties travelled together on 6 November 2017(movement records indicate the date as 7 November 2017) to the Philippines to find a place for her children to live and fitted it out for them. The difference in the date of the movement records has had no adverse bearing on this decision.

    oThe sponsor came back to Australia due to Visa issues and returned to the Philippines six days later and then engaged an immigration specialist returning to Australia on 28 November 2017. At that stage the applicant was on a tourist visa but that she could not obtain a bridging visa. The Sponsor indicates that if the applicant needs to return to the Philippines to live it will be a hard life as he would need to support the applicant and her family and also live on his reduced age pension. Whilst this may be the current situation, the Tribunal is concerned at this review with matters relating to the date of application.

    othe sponsor indicates that the parties did not know about having to live together and the period of time required in relation to the making of the application, but they have been together for approximately five years and he states that during that time, he has supported the visa applicant and her children and that the parties always shared the expenses that she would buy the food and paid the telephone bill. He states that the parties have a loving relationship.

    oa statutory declaration was provided from John Waldon from  the Philippines dated 2 February 2018 indicated that he is an Australian citizen living in the Philippines and that he has known the couple for five years approximately and that they are friends of himself and his wife, that he spent a lot of time with them, describing the parties as decent hard-working people and has no hesitation in vouching for them as a couple who have been together for at least five years. This indicates that he knew them at the date of application. The Tribunal accepts his evidence.

    The Tribunal accepts the parties commitment to each other based on and including the duration of the relationship; the length of time they had lived together; the degree of companionship and emotional support they drew from each other and that at the date of application, they saw the relationship as long-term and therefore finds that the elements of r1.15A(3)(d) are met..

    o Any other circumstances of the relationship.

    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.

    §The Minister “…must be satisfied that the applicant has been in the defacto relationship for at least the period of 12 months ending immediately before the date of the application”  unless the exceptions under Subregulation (4) and (5) of the Section apply.

    The visa application was lodged on 15 October 2015. The relevant 12 months ending immediately before the date of the application therefore are the dates 15 October 2014 to15 October 2015.

    The Tribunal notes that there is no written evidence of the parties having registered their relationship and that the applicant stated in oral evidence that the parties have not registered their relationship pursuant to Section 2.03A(5) of the Act.

    Whether the parties are related by family

    oThe Tribunal is satisfied that the parties are not related by family under s.5CB(2)(d) of the Act  .

20. The Tribunal is required under the Act, to make its decision taking into account the whole of the evidence before it. Having considered the whole of the evidence before it, the Tribunal is unable to conclude, that the applicant met the necessary requirements against s.5CB(2)(a)-(c) at the date of application on 15 October 2015, being a mutual commitment to a shared life to the exclusion of others; genuine and continuing relationship; and lived together or not separately and apart on a permanent basis.

21. The Tribunal has already indicated that under s.5CB(2)(d) it is satisfied that the parties are not related by family.

22. The Tribunal however is not satisfied that the parties were in the defacto relationship for at least 12 months ending immediately before the date of the application.

23. It has concluded on the basis of the whole of the evidence, that the parties relationship does not fall within one of the exceptions under Regulation 2.03A (4) or (5) of the Act.

24. The parties were asked at the end of the oral evidence whether they had any further comments which they wished to make.

25. The parties indicated that the sponsor has voluntarily supported the applicant and her children and for a number of years before the parties married and that if she does not obtain a Visa, it will be difficult for him to continue to do so if they are in the Philippines and he is on a reduced age pension.

26. The sponsor stated that if the application is not successful, he would sell up his assets and move to the Philippines where he previously has resided but that the reduction in his aged pension would make it difficult  financially.

27. It was not necessary to assess the defacto relationship at the date of this decision as the applicant did not meet the requirements of s2.03A(3) at the date of application.

    The Tribunal has considered whether the alternative criteria in c.820.211(7), 820.211(8), 820.211(9), 820.221(2), 820.221(3) (death, family violence, child exceptions) are met.

    (It notes that: cl.820.211(3) and (4)) have been repealed for visa applications made on or after 22 March 2014).

1. There is no evidence that the relationship is or was registered under a relevant State or Territory law or that the sponsor held, holds or is applying for a permanent humanitarian visa, so they must meet the 12 month requirement. The parties’ evidence is that they committed to their relationship on 15 October 2015, the date on which the application for migration was made. The Tribunal accepts that the applicant had not been in the de facto relationship in the 12 month period ending immediately before the date of the application.

   Issue No. 2 - Are there compelling and compassionate circumstances?

2. Therefore, the issue which the Tribunal is now required to consider is whether the visa applicant can establish compelling and compassionate circumstances for the grant of the visa: r.2.03A(3). The expression ‘compelling and compassionate circumstances for the grant of the visa’ is not defined in the legislation. Having regard to the ordinary meaning of the words, ‘compassionate’ suggests ‘circumstances that invoke sympathy or pity’. ‘Compelling’ in its wide, ordinary meaning means ‘forceful’ and, therefore, convincing: see Paduano v MIMIA [2005] FCA 211.

3. The Tribunal finds the evidence of matters canvassed at the hearing, to be significant in relation to the parties’ clear intentions at the date of application. It has attached substantial significance to the credibility of the sponsor and the fact that he had voluntarily supported the applicant and her children for many years, believing him in relation to this matter.

4. The Tribunal also accepts the sponsor’s evidence that he is over 70 years of age, is on an age pension and would need to sell his assets in order to move to the Philippines with the applicant. The Tribunal considers that this would be an additional hardship which is accepted as a compassionate and compelling circumstance.

5. The Tribunal also accepted that the parties had genuine affection and indicated emotional support, for each other as evidenced by the fact for example, that the sponsor would drive and pick up the applicant from work over a very long distance taking several hours daily and that since December 2014 and at the date of application, they saw the relationship as lasting in the future and the fact that the sponsor is willing to sell up everything and move back to the Philippines with the applicant if she is unsuccessful in her application.

6. The Tribunal considers that the emotional commitment is also supported by their marriage in 2018 and is genuine and not contrived for migration outcomes but based on a genuine commitment and to a lasting future together.

7. Accordingly, the Tribunal is satisfied that there are compelling and compassionate circumstances for the grant of the visa.

8. For these reasons the Tribunal is satisfied that the applicant meets the additional criteria prescribed in r.2.03A.

9. 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

10. 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
    • r.2.03A

    C Morfuni
    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).