Di Salvo (Migration)

[2017] AATA 941

Di Salvo (Migration) [2017] AATA 941 (30 May 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Filippo Di Salvo

CASE NUMBER:  1611834

DIBP REFERENCE(S):  BCC2015/1235846

MEMBER:Russell Matheson

DATE:30 May 2017

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 (Temporary)) visa:

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

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

Statement made on 30 May 2017 at 8:09am

CATCHWORDS

Migration – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner (Temporary)) – Genuine spousal relationship – Pooling of financial resources – Social recognition of relationship – 25-year marriage – Temporary separation to assist adult sons

LEGISLATION

Migration Act 1958, ss 5F, 65

Migration Regulation 1994, Schedule 2, cl 820.211, r 1.15A

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision of a delegate of the Minister for Immigration on 13 July 2016 to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant is a national of Italy born in April 1967. The applicant applied for the visa on 28 April 2015 on the basis of his relationship with his sponsor. At that time, Class UK contained only one subclass: Subclass 820 (Partner (Temporary)). The criteria for the grant of this visa are set out in Part 820 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria.

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

4. The applicant appeared before the Tribunal on 26 May 2017 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor and three witnesses. The Tribunal hearing was conducted with the assistance of an interpreter in the Italian and English languages.

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

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is whether the applicant is the spouse of the sponsor as defined in s.5F of the Act.

8. The Tribunal considered all the evidence in the Departments file BCC2015/1235846 and the Tribunal file.

   Whether the parties are in a spouse or de facto relationship

9. 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.

10. ‘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 husband and wife 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 as to 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.

    Are the parties validly married?

11. If the parties are validly married, they may meet the requirements of a spousal relationship, but not a de facto relationship. The applicant provided with his application a copy of the couple’s marriage certificate registered in Italy on 19 August 1992. There is nothing before the Tribunal to indicate that the marriage is not valid. 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).

    Are the other requirements for a spousal relationship met?

12. The Tribunal has considered the written and documentary evidence submitted with the primary application and the additional evidence submitted to the Tribunal. The Tribunal has also had the benefit of the parties’ oral evidence and that of three witnesses. The Tribunal found them to be truthful and credible witnesses and accepts their evidence.

13. The Tribunal has considered the financial aspects of the relationship. The couple provided evidence of operating a joint bank account for daily expenses which was opened in April 2015. Their evidence is, initially only the sponsor’s wages were deposited into the joint account because the applicant found it hard to find full time employment. The applicant obtained a bridging visa allowing him to work in July 2015 and could only find part time work. Since finding full time employment in May 2016 the applicant and the sponsor’s salaries are both deposited directly into the joint account. They stated that payment of bills such as their rent, utilities and health cover is directly debited from the joint account. The couple presented evidence to the Tribunal of their joint tenancy agreement, joint heath cover, joint utilities accounts and car insurance in both names. The Tribunal is satisfied that the parties pool their financial resources and share the daily expenses.

14. The Tribunal has considered the nature of the household. The couple gave detailed and consistent evidence about their living arrangements and the Tribunal is satisfied they live together as a family unit with their adult sons at their current address in Casula. The applicant and the sponsor spoke about cooking, cleaning, washing and doing the household chores. The applicant and sponsor and their two sons are all gainfully employed, living together as a family unit and all make a contribution to the household chores. The Tribunal is satisfied they share the housework.

15. The Tribunal accepts that the couple’s relationship is socially recognised. There are a number of statements from third parties attesting to their belief that the relationship is a genuine one. There is photographic evidence of the couple’s social activities together. The parties stated they had travelled extensively together as a couple overseas. They stated that they had travelled the Mediterranean together on a cruise liner for their honeymoon. The parties stated they frequently dine out and enjoy the company of their family and friends most weekends and attend functions together. The Tribunal accepts that the applicant and the sponsor plan and undertake social activities together. The Tribunal is satisfied family and friends view the relationship as a genuine and committed one.

16. The Tribunal has considered the couple’s commitment to each other. The couple have been married since August 1992 and their relationship has lasted nearly 25 years. They have two adult children born to that marriage who are Australian citizens and are currently living with them. The couple lived as husband and wife and raised their sons together in Italy from August 1992 until March 2014. The couple while living together in Italy purchased property with other family members. They have only ever been separated from each other for a period of one year because the sponsor relocated to live permanently in Australia with one of their sons. The youngest son remained in Italy with the applicant to complete his last year of high school. During the time of the separation the couple stated that they remained in constant contact with each other on the internet. The parties, since wilfully gaining full time employment in Australia, have made each other the beneficiaries of their superannuation schemes. They have established a joint household, living as a family with their sons at their current address in Casula. They stated that they had also established a joint household living together with their sons in Italy for over 20 years. The parties and witnesses stated the couple have never been separated during the entire time of their relationship. The couple have been in a married relationship for nearly 25 years. The couple outlined their plans for the future and the Tribunal accepts they have given the matter genuine consideration. The Tribunal accepts that they view their relationship as a long term one.

    FINDINGS

17. Given these findings the Tribunal is satisfied that at the time the visa application was made the parties were in a spousal relationship.

18. The Tribunal notes that the applicant and the sponsor were able to articulate the reasons for their decision to form a relationship and spoke of their common interests and expectations. The Tribunal is satisfied the parties provided each other a strong degree of companionship and emotional support that is commensurate with a couple being in a spousal relationship.

19. The Tribunal is satisfied, having regard to the totality of the circumstances and the evidence provided that the applicant and the sponsor have a mutual commitment to a shared life to the exclusion of all others. The Tribunal is satisfied that their relationship is genuine and continuing. The Tribunal is satisfied that they live together and not separately and apart on a permanent basis.

20. Given these findings the Tribunal is satisfied that at the time the visa application was made and at the time of decision the parties were in a spousal relationship. Therefore the applicant meets cl.820.211 (2)(a). The Tribunal is also satisfied that the applicant continues to be the spouse of the sponsor at the time of decision and meets cl.820.221(1)(a).

    Conclusion  

21. 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

22. 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 (Temporary)) visa:

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

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

    Russell Matheson
    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).