Dos Santos (Migration)

[2022] AATA 2779

Dos Santos (Migration) [2022] AATA 2779 (5 August 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Alfredo Joao Dos Santos

REPRESENTATIVE:  Mr Raveendran Selvadurai (MARN: 9802451)

CASE NUMBER:  1820169

HOME AFFAIRS REFERENCE(S):          BCC2016/3352646

MEMBER:Cheryl Cartwright

DATE:5 August 2022

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;

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

Statement made on 05 August 2022 at 10:11am

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – genuine and continuing relationship – validly married in Australia – household, financial and social aspects of relationship – nature of commitment – length of marriage, and further evidence and statutory declarations provided – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5F(2), 65
Migration Regulations 1994 (Cth), rr 1.09A, 1.15A(3), Schedule 2, cls 820.211(2), 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 6 October 2016 on the basis of his relationship with his 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. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria.

3. On 22 June 2018 the delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl 820.211(2) because the applicant provided insufficient evidence to demonstrate that the applicant and the sponsor were in a genuine long-term relationship as prescribed under regs 1.15A and 1.09A.

4. On 11 July 2018 the applicant applied to the Tribunal for review of the refusal decision.

5. The applicant appeared before the Tribunal on 25 July 2022 to give evidence and present arguments. The Tribunal also received oral evidence from Margarida Dos Santos and Claudio Dos Santos, the sister and brother of the applicant, and Joana Da Cruz, the sponsor. The Tribunal hearing was conducted with the assistance of an interpreter in the Portuguese and English languages.

6. The applicant was represented in relation to the review. The representative attended the Tribunal hearing.

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, at the time of application on 6 October 2016, the applicant was in a genuine spousal relationship with the sponsor.

9. In deciding this matter, the Tribunal has also had regard to evidence of events subsequent to the date of the visa application.

10. In the circumstances of this case, the Tribunal considers that it is appropriate to make findings about cl 820.221 (a time of decision criterion) as well.

    Whether the parties are in a spouse or de facto relationship

11. 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.

12. In the present case, the applicant claims to be the spouse of the sponsor who is an Australian citizen. A copy of the bio-pages of her Australian passport and a copy of her Certificate of Australian Citizenship are on the Department’s file. From the evidence before it, the Tribunal is satisfied that the sponsor is an Australian citizen.

13. ‘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 of the relationship 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.

    Are the parties validly married?

14. If the parties are validly married, they may meet the requirements of a married relationship but not a de facto relationship. On 22 August 2014 the parties were married in Western Australia. A marriage certificate, registration number 006900C/2014, is on the Department’s file. 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 spouse relationship met?

15. Regulation 1.15A(3) provides relevant factors for determining whether the spousal relationship exists. These factors are (a) the financial aspects of the relationship; (b) the nature of the household; (c) the social aspects of the relationship; and (d) the nature of the persons’ commitment to each other.

16. In considering these issues, the Tribunal has had regard to all the documents on the Department’s file and the Tribunal’s file. The Tribunal notes that in this review application, the review applicant submitted written submissions dated 16 June 2022, including eight statutory declarations by friends and family, and further evidence of the relationship.

    Financial aspects of the relationship

17. Any joint ownership of real estate or other major assets, any joint liabilities, the extent of any pooling of financial resources, whether one person in the relationship owes any legal obligation in respect of the other and the basis of any sharing of day-to-day household expenses are relevant factors to consider when assessing the financial aspects of the relationship.

18. There is no evidence before the Tribunal that, at either at the time of application or at the time of this decision, the applicant and the sponsor jointly owned or own real estate or other major assets; that they had or have any joint liabilities; or that one person in the relationship owed or owes any legal obligation in respect of the other.

19. In the submissions provided on 16 June 2022, the parties provided evidence of car insurance, in which both parties are named.

20. At the hearing, the parties gave evidence that they shared responsibility for household expenses.

21. The parties also gave evidence that they held individual bank accounts as well as a joint account. Given the mature age of the parties and their previous independent lives, the Tribunal is satisfied with this division of finances in a mature spousal relationship.

22. The Tribunal is satisfied that, to some extent, at the time of application and at the time of decision, the parties shared and continue to share responsibility for finances.

    The nature of the household

23. Any joint responsibility for the care and support of children, the living arrangements of the persons and any sharing of the responsibility for housework are relevant matters to be considered when assessing the nature of the household.

24. There is no evidence before the Tribunal that the applicant and the sponsor have any children together.

25. The applicant has two children from a previous marriage. The applicant’s children do not reside in Australia, but he is in regular contact with them, and the sponsor has also developed a respectful and accepting relationship with the applicant’s children and grandchildren.

26. The sponsor and applicant have known each other and each other’s families since they resided in Timor and Portugal, but the sponsor and applicant lost touch with each other when the sponsor’s family moved to Australia. The applicant had stayed in Portugal, married and had a family, but the marriage ended in divorce and he was reunited with the sponsor when she visited Portugal for a holiday, and they stayed in touch when she returned to Australia.

27. At the time of application, the applicant had moved to Perth but transferred to Melbourne in 2017 in order to obtain work and be near his family. The sponsor did not leave Perth immediately as she had a job and a house. She sold the house and moved to Melbourne in 2018 to continue living with the applicant.

28. Each of the parties gave evidence that the applicant’s main hobby is staying fit and attending a gym. Both parties gave evidence that the sponsor had attended gym while living in Perth but had not continued with this interest since moving to Melbourne.

29. The parties gave evidence to the Tribunal that they share cooking and household duties. They also undertake household shopping together, depending on the applicant’s working hours. The applicant undertakes maintenance on the home.

30. The Tribunal considers that the evidence of the nature of the household is suggestive of a spousal relationship. At the time of the delegate’s decision, the applicant had moved to Melbourne while the sponsor had remained in Perth; however, the applicant sold her house and moved to Melbourne some months later. The Tribunal is satisfied that both at the time of application and time of the Tribunal’s decision, the nature of the household indicates that the parties are in a spousal relationship.

    The social aspects of the relationship

31. Whether the persons represent themselves to other people as being married to each other, the opinion of the persons’ friends and acquaintances about the nature of the relationship and any basis on which the persons plan and undertake joint social activities are relevant matters to be considered in determining the social aspects of the relationship.

32. At the time of application, the Department received two statutory declarations declaring the genuineness of the relationship, one from the sponsor and another from a brother of the sponsor. Since then, the Tribunal has received eight statutory declarations from friends and family attesting to the genuineness of the relationship. While some of these statutory declarations, particularly those from the Dos Santos family, were identical in their wording, all other statements were individual and highly descriptive and supportive of the parties’ relationship. The Tribunal gives some weight to these individual, and clearly descriptive, statutory declarations.

33. All these declarants have known the parties for a number of years and are aware of the partner relationship. The Tribunal considers that the reasons given by the declarants for considering the parties’ partner relationship to be genuine and continuing are well considered and detailed. The Tribunal gives weight to this evidence.

34. There is a number of photographs on the Department’s file of the applicant and sponsor at a range of social events, indicating their attendance and participation as a couple. Each party is known to the other party’s family.

35. The parties described living a quiet life, seeing close friends and family, but not broadly socialising.

36. The Tribunal gives positive weight to the evidence provided and is satisfied the parties represent themselves as a married couple to friends and family and have done so since their marriage in August 2014. The Tribunal considers the evidence presented regarding the social aspects of the relationship weighs in favour of there being a genuine spousal relationship both at the time of application and at the time of decision.

    The nature of the persons’ commitment to each other

37. The duration of the relationship, the length of time during which the persons have lived together, the degree of companionship and emotional support that the persons draw from each other, and whether the persons see their relationship as long-term are all aspects to be considered in determining the nature of the persons’ commitment to each other.

38. Both the applicant and the sponsor have detailed the inception and development of their relationship. Having regard to all the evidence before it, the Tribunal accepts the claims about the inception and development of the claimed partner relationship.

39. In separate statements at the hearing, the parties gave an account of how the applicant proposed to the sponsor via telephone when he was living and working in Paris and she was living in Perth, and how he repeated the proposal when he visited Perth soon after. The parties had discussed living in Paris as a couple, but the sponsor wanted to remain living in Australia. The applicant moved to Perth but later moved to Melbourne in order to obtain work. The sponsor sold her house in Perth and moved to Melbourne soon after.

40. The Tribunal notes that, after several discussions between the parties, the applicant chose to move to Australia from France in order to be with the sponsor, and it also notes that the sponsor left her employment and sold her property in Perth in order to be with the sponsor after he moved to Melbourne in order to obtain work. The Tribunal is satisfied that the parties provide emotional support and companionship for each other. The parties plan to remain in Melbourne together.

41. The Tribunal accepts and gives weight to the evidence that, at the time of application on 6 October 2016, the parties had been married for two years, and that, at the time of this decision, they have been married for almost eight years.

42. The Tribunal gives weight to the applicant’s decision to move to Australia for the sponsor and the sponsor’s decision to move to Melbourne for the applicant, and it is satisfied that this is indicative of genuine commitment to a spousal relationship.

43. As noted earlier, the Tribunal accepts that the applicant and the sponsor have lived together as claimed for most of the past eight years and gives weight to the evidence regarding this length of time.

44. The Tribunal has taken account of the parties’ respective ages, backgrounds and life experiences and accepts that both at the time of application and at the time of decision, neither party was nor is in a relationship with any third party.

45. The Tribunal is satisfied that at the time of application and at the time of decision, the parties were in a long-term, committed married relationship.

    CONCLUSION

46. As stated above, the Tribunal is satisfied that the parties are validly married, as required by s 5F(2)(a) of the Act.

47. After considering all the evidence before it and for the reasons given with respect to the reg 1.15A(3) matters, the Tribunal is satisfied that, both at the time of application on 6 October 2016 and at the time of this decision, the applicant and the sponsor:

    ·had and have a mutual commitment to a shared life as wife and husband to the exclusion of all others, as required by s 5F(2)(b) of the Act;

    ·had and have a genuine and continuing relationship, as required by s 5F(2)(c) of the Act; and

    ·lived and live together as required by s 5F(2)(d)(i) of the Act.

48. Given these findings, the Tribunal is satisfied that, at the time the visa application was made and at the time of this decision, the parties were and are in a spousal relationship.

49. However, the spouse requirement in cl 820.211(2)(a)(i) is not the only requirement in cl 820.211(2) which must be satisfied at the time of application. The sponsorship requirements in cl 820.211(2)(a)(ii) and cl 820.211(2)(c) must also be satisfied, and, if the applicant was not the holder of a substantive visa at the time of application, then the requirements in cl 820.211(2)(d) must also be satisfied.

50. The Tribunal has reviewed the record of responses for the application for the visa and the Form 40SP – Sponsorship for a partner to migrate to Australia which are on the Department’s file. From the evidence before it, the Tribunal is satisfied that the applicant is sponsored by the sponsor and that cl 820.211(2)(c)(i) is met. There is no information before the Tribunal to suggest that the circumstances outlined in cl 820.211(2B) apply, so the Tribunal finds that the sponsor is not prohibited by that subclause from being a sponsoring partner. Accordingly, the Tribunal finds that cl 820.211(2)(a)(ii) is met.

51. The applicant’s movement records evidence that on 20 April 2015 he was granted a Subclass 651 tourist visa and on 13 August 2016 he was granted a Subclass 650 tourist visa and therefore held a substantive visa upon applying for the Partner (Temporary) (Class UK) Subclass 820 visa on 6 October 2016. As he held a substantive visa at the time of application, the further requirements in cl 820.211(2)(d) need not be met.

52. The Tribunal finds that the applicant meets the time of application requirements in cl 820.211(2).

53. With respect to criteria to be satisfied at the time of decision, the Tribunal finds that the applicant continues to meet the requirements of cl 820.211(2) and so meets cl 820.221(1)(a).

54. 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

55. 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;

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

    Cheryl Cartwright
    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).