Epis (Migration)

[2021] AATA 1427

Epis (Migration) [2021] AATA 1427 (6 May 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Maria Teresa Terante Epis

CASE NUMBER:  1809671

HOME AFFAIRS REFERENCE(S):          BCC2016/2258972

MEMBER:Adrienne Millbank

DATE:6 May 2021

PLACE OF DECISION:  Brisbane

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 of Schedule 2 to the Regulations

·cl 820.221 of Schedule 2 to the Regulations.

Statement made on 06 May 2021 at 12:03pm

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – spouse or de facto partner – validly married in applicant’s home country – financial, household and social aspects of relationship – nature of commitment – difficulty filling in sponsorship forms without help from agent – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5F(2)(a), 65
Migration Regulations 1994 (Cth), r 1.15A(3), Schedule 2, cls 820.211(1), (2)(a), (c), 820.221(1)(a), (4), (2)(d)

CASE
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 on 29 March 2018 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 49-year-old citizen of the Philippines. She has declared no previous relationships. Her husband is a 57-year-old Australian citizen by birth. He has declared two previous marriages, one previous sponsorship, and two adult children.

3. The parties established contact on an internet chat site in 2011, and first met in person in the Philippines in December 2012. They married in the Philippines on 5 April 2013. The applicant first arrived in Australia on 31 July 2015 on a Visitor (Subclass 600) visa, and was granted two more Tourist visas onshore.

4. The applicant applied for the visa on 4 July 2016 on the basis of her relationship with the 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.

5. The delegate refused to grant the visa on the basis that the applicant did not satisfy cl 820.211(2). Insufficient evidence was provided to satisfy the delegate that the applicant was the spouse or de facto partner of an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen.

6. The decision records that the delegate accepted statements of support were provided by family members, neighbours and friends who stated that they socialised with the parties on a regular basis and believed them to be in a genuine relationship. However, none of the witnesses had provided personal identification, and for this reason the statements were accorded no weight by the delegate.

7. The decision further records that the applicant did not provide a Form 40SP specifying her husband for the purposes of providing sponsorship of her partner visa application.

8. A hearing scheduled for 31 March 2021 was cancelled by the Member.

9. The applicant appeared before the Tribunal on 27 April 2021, by MS Teams video, to give evidence and present arguments. The Tribunal also received oral evidence from her husband, the sponsor, and a neighbour.

10. A completed Sponsorship (Form 40SP), dated 28 April 2021, was received by the Tribunal following the hearing, on 28 April 2021 and 30 April 2021.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. The issues in the present case are whether the parties were in a genuine relationship at the time of application and decision, and whether the applicant was relevantly sponsored for the visa.

    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 an Australian citizen born in Australia.

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. A Philippines Marriage Certificate was provided, certifying the parties married at Ecoland, Davao City, on 5 April 2013. 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?

    Financial aspects of the relationship

16. Evidence was provided that the parties have a joint bank account, opened 3 April 2018, with debit cards in each of their names. Statements of transactions provided, up to March 2021, show the sponsor’s income has been deposited into the account, and regular transfers from the applicant’s personal account. At hearing the applicant confirmed that her salary has always been paid into her personal account. The statements of transactions indicate that the joint account has been used to fund the parties’ household.

17. Evidence was provided that the parties have a vehicle jointly registered and insured in both of their names. Copies of a joint tenancy agreement, income protection insurance, and the sponsor’s Will, signed on 16 April 2018, bequeathing his estate to his wife, the applicant, were provided.

18. The Tribunal is satisfied that the parties have joint liabilities, including in the form of their joint tenancy, and that they jointly own assets in the form of vehicles and camping gear, and that they have legal obligations owed to the other party arising from their marriage, the sponsor’s Will, and income insurance. While the parties have each maintained a personal bank account, the Tribunal is satisfied from the statements provided that they have pooled their financial resources, and that they share day-to-day expenses consistent with being in a spousal relationship.

    Nature of the household

19. At hearing the parties confirmed that they have rented the same house, and that prior to the applicant’s arrival he rented the house with his mother. Copies of mail addressed to both of the parties at the same address were provided, including regarding utility services, car registration and insurance.

20. The parties do not have children from the relationship. They described in written statements and at hearing how they share the housework and gardening, and do the household shopping together. Photos were provided of the applicant and the sponsor together at their home.

21. The Tribunal is satisfied that the parties have established a joint household together, where they live as a couple and share the housework.

    Social aspects of the relationship

22. Statutory declarations (with identity documents for the declarants), and written statements, some with accompanying identity documents, were provided from a sibling of the sponsor; from friends and colleagues; and from neighbours of the parties, who stated that they know the parties are in a genuine relationship.

23. Photos of the parties were provided together with members of the applicant’s family in the Philippines; at their wedding; and with family and friends in Australia. At hearing the sponsor stated that he and the applicant were looking forward, post-Covid-19, to returning to the Philippines to spend time with the applicant’s family, particularly with her now elderly and frail father.

24. A neighbour of the parties who provided a statutory declaration also provided witness testimony at hearing. She described how she knew the sponsor before the applicant’s arrival, and how she has known the parties as a couple and socialised with them regularly since the applicant’s arrival. She testified that the parties are a genuine, happy couple. She described how she often hears them laughing together, engaged in a joint project in their garden or shed.

25. A list was provided to the Tribunal of more neighbours, friends and acquaintances of the parties prepared to provide supportive witness testimony. The Tribunal did not contact the people on this list for the reason it considered sufficient witness testimony had been provided. The Tribunal invited the parties to invite the people on the list to provide written statements to the Tribunal if they wished to provide testimony for the record.

26. The Tribunal is satisfied on the evidence provided that the parties have represented themselves to other people as being married to each other; that the opinion of their friends and acquaintances is that they are a married couple; and that they plan and undertake joint social activities as a couple.

    Nature of persons’ commitment to each other

27. Evidence was provided in the form of an application for divorce filed with the Family Court of Western Australia on 28 September 2010, that the sponsor and his previous wife divorced in 2010. At hearing the sponsor described how his previous wife left him and he was lonely after that relationship ended. He described how his adult children encouraged him to enter into another relationship; how glad he has been that he chose to enter into a relationship with the applicant; and how glad he is that she chose him.

28. The parties have been in a relationship since 2012 and have been married since 2013, for over eight years. The sponsor described in written statements and at hearing how the applicant helped him to care for his mother until his mother died, and how he and the applicant have cared for and supported each other. He described how he proposed to the applicant, precipitously, at the airport, when they first met face to face; how having set sight on her he couldn’t bear the thought of losing her. Each of the parties testified that they are compatible and have been happy in the relationship; that they go camping and fishing together and enjoy each other’s company.

29. The parties presented at hearing as a caring couple. They were open and credible witnesses, and the Tribunal accepted their testimony.

30. The Tribunal is satisfied that the parties provide each other with companionship and emotional support, and that they see the relationship as long-term.

31. Having considered the above matters, the Tribunal finds, against s 5F(2)(b)–(d), that the parties have a mutual commitment to a shared life to the exclusion of others; that they are in a genuine and continuing relationship; and that they live together or not separately and apart on a permanent basis.

32. 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 the time of this decision.

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

34. Regarding the sponsorship requirements in cl 820.211(2)(c) and cl 820.221(4), the Tribunal asked the parties why a properly completed sponsorship Form 40SP was not submitted at the time of application, as it appeared on the evidence before the Tribunal, including their presentation at hearing, that they were in a genuine relationship. The Tribunal put to the sponsor that there were omissions and mistakes (confusion between visa applicant and sponsor) in the two sponsorship forms provided to the Tribunal, signed on 11 February 2018 and 16 April 2018. The sponsor responded that he thought they had lodged a sponsorship form with the visa application. He acknowledged that he and the applicant made mistakes filling in the sponsorship forms signed on 11 February 2018 and 16 April 2018. He stated that they did not have an agent, and that they experienced difficulty filling in all the forms. As noted, on 28 April 2021 and on 30 April 2021 the Tribunal received another sponsorship form 40SP, signed on 28 April 2021.

35. The parties are both over 18 years of age and the sponsor is the spouse of the applicant. The applicant held a substantive visa when she lodged this application. Therefore, the applicant meets cl 820.211(2)(c) and cl 820.211(2)(d). There is no information before the Tribunal to suggest that the sponsorship is not approved by the Minister or is not still in force. Therefore, the applicant meets cl 820.221(1).

36. Therefore, the applicant meets cl 820.211 and cl 820.211.

37. 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

38. 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 of Schedule 2 to the Regulations

    ·cl 820.221 of Schedule 2 to the Regulations.

    Adrienne Millbank
    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).