Farfan Falcon (Migration)

[2022] AATA 3278

Farfan Falcon (Migration) [2022] AATA 3278 (27 July 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr David Farfan Falcon

REPRESENTATIVE:  Mr Alexander Agus Halim (MARN: 0533728)

CASE NUMBER:  1835132

HOME AFFAIRS REFERENCE(S):          BCC2017/1167583

MEMBER:Edward Howard

DATE:27 July 2022

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(2) of Schedule 2 to the Regulations

·cl 820.221 of Schedule 2 to the Regulations

Statement made on 27 July 2022 at 4:12pm

CATCHWORDS
MIGRATION –Partner (Temporary) (Class UK) visa – Subclass 820 – parties validly married – parties jointly share liabilities in the form of their financial commitments –  genuine married relationship at the time of application genuine and committed spouse relationship at the date of decision – decision under review remitted

LEGISLATION
Migration Act 1958, ss, 5F, 65
Migration Regulations 1994, r 1.15, Schedule 2, cls 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 Home Affairs to refuse to grant the visa applicant a Partner (Temporary) (Class UK) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicant applied for the visa on 27 March 2017 on the basis of his 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 (Cth) (the Regulations). The primary criteria must be satisfied by at least one visa applicant. Other members of the family unit, if any, who are visa applicants for the visa need satisfy only the secondary criteria.

3. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl 820.211(2)(a) as the delegate was not satisfied the visa applicant was the spouse or de facto partner of the sponsor as defined.

4. The visa applicant attended the Hearing before the Tribunal on 7 July 2022, together with the sponsor. The visa applicant was represented in relation to the review.

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

   background

6. The visa applicant is David Farfan Falcon, aged 43, a citizen of Peru and the sponsor is Marilyn Sanchez Ellmers, aged 70, an Australian citizen. At the time of the visa application in March 2017, the parties claimed to have been in a relationship from about June 2016. The parties were married on 8 December 2016.

   ISSUES AND LAW

7. There is a two stage process for onshore Partner visas. A visa applicant must first hold a provisional visa, enabling them to remain in Australia on a temporary basis, prior to the grant of a permanent visa. The grant of a permanent visa would generally depend on whether the relationship has continued for a period of at least two years. In this matter, the Tribunal is considering the first, temporary stage.

8. Where the Tribunal is considering a criterion that requires the definition of spouse or de facto partner to be met at the time of the visa application, the information supplied in relation to the reg 1.15A(3) matters may relate to circumstances after the time of application. In forming a view of the relationship at the time of application, the Tribunal must consider all relevant evidence, which may include evidence of events after the date of application insofar as it assists in the task of determining whether the visa applicant and the sponsor were in a partner relationship at the time of the application. Evidence of events after the visa application is relevant if it tends logically to show the existence or non-existence of facts relevant to the issue to be determined.[1] The Tribunal observes this to be a matter where the visa applicant submitted limited documentary evidence in support of his visa application to the Department of Home Affairs and then furnished the Tribunal with extensive evidence that was unavailable to the primary decision maker.

   [1] Ally v MIAC [2008] FCAFC 49 at [32]–[35]; Jayasinghe v MIMA [2006] FCA 1700 at [35], citing MIEA v Poche (1980) 4 ALD 139 at [24] per Deane J which held that evidence of subsequent events may be taken into account if it ‘tends to logically show the existence or non-existence of’ the relationship at that particular time; and see also Bretag v IRT [1991] FCA 582 at [13]–[15].

9. The issue in the present case is whether at the time of the visa application and the time of this decision, the visa applicant is the spouse or de facto partner of the sponsor.

   Whether the parties are in a spouse or de facto relationship

10. 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 visa 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 visa applicant claims to be the spouse of the sponsor who is an Australian citizen.

11. ‘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?

12. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. The visa applicant provided a copy of a Queensland Marriage Certificate recording the registration of a marriage between the parties conducted on 8 December 2016. 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 – 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.

13. The visa applicant gave evidence that he works as a contract cleaner, normally working 40-50 hours per week. The sponsor gave evidence that she is in receipt of a pension.

14. In relation to the financial aspects of the relationship, the parties have provided statements from their ANZ Bank joint account commencing from 23 February 2017 when the account was first opened, until 18 February 2022. From this account, the parties have paid most of their expenses, including their rent since about November 2018. The visa applicant gave evidence that expenses are made either from the joint account or his own account.

15. Submissions on behalf of the parties disclose that the parties share expenses, for example, the sponsor pays for car insurance and car registration, however, the visa applicant pays for servicing of the motor vehicle. In relation to the payment of utilities, the evidence discloses that electricity bills have been in the name of the sponsor only at times, and in the name of the visa applicant at other times. The parties have also provided invoices relating to internet providers, which are in the name of the sponsor with the payments being deducted from the visa applicant’s bank account.

16. The parties have provided copies of their electricity accounts with Energy Australia. The accounts are paid in the name of the sponsor for the period from 18 November 2020 until 11 November 2021. Thereafter, the account commencing for the period of 12 November 2021 and continuing to February 2022 is in the name of the visa applicant.

17. The parties have also provided a range of documents relating to their places of residence, including a copy of the Tenancy Agreement for their previous residence at Bundall. The agreement is in the name of the sponsor only, however, it is signed by the visa applicant as well. The parties also provided documentation of an Extension of Tenancy Agreement in relation to the Bundall residence between 2 July 2017 - 1 July 2018.

18. In relation to their current residence at Southport, the parties have provided a Tenancy Agreement for the period 8 September 2018 - 6 September 2019. Further, a letter has been provided, confirming the change of tenant’s details dated 27 November 2018 providing for both parties to be named as tenants and a rental bond invoice in both names of the same date. The evidence also includes a Tenancy Agreement, in both names, for their current residence at Southport, commencing 4 September 2021. The agreement is in force until 2 September 2022. The parties each gave evidence that they are actively looking for a new rental apartment.

19. The Tribunal refers to the evidence provided by the parties and in particular to their pooling of financial resources, primarily by deposits into the joint account. Whilst the parties do not have joint ownership of real estate or other major assets, as they continue to rent a property, they are named as tenants on the tenancy agreement and pay their household expenses including utilities, phone, rent and other expenses primarily from their joint account. There is clear evidence of the sharing of day-to-day household expenses by reference to those accounts.

20. The Tribunal, on the evidence, is satisfied the parties jointly share liabilities in the form of their financial commitments including, rent, utilities and other general expenses. The Tribunal is further satisfied that the parties pool their resources for their household commitments and outlays especially in relation to major financial commitments. The Tribunal weighs the financial information in favour of the visa applicant.

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

21. The parties live together and have done so since November 2016, as a de facto couple and then as a married couple from 8 December 2016 onwards. For a period of time, the sponsor’s nephew lived with the parties. The parties do not have children.

22. In relation to the nature of their household, the parties’ evidence is that the sponsor does the cooking and laundry on most days and the visa applicant assists whenever he can including with cooking, vacuuming and cleaning of the bathrooms.

23. The Tribunal is satisfied the parties’ household is consistent with that of a genuine couple in a married relationship and weighs the consideration of the household aspects in the visa applicant’s favour.

    Social aspects of the relationship – including whether parties represent themselves to other people as being married to 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.

24. The parties have provided evidence in support of the social aspects of the relationship. The evidence supports their claim that they represent themselves to other people as being married to each other. Photographs depict the parties in various settings, including the following photographs:

    (1)of the sponsor’s trips to visit the visa applicant in Perth in August 2016 and October 2016;

    (2)of the parties’ wedding  in December 2016 and of their honeymoon in Sydney in January 2017.

    (3)of an Australia Day celebration with friends on 26 January 2017;

    (4)of a friend’s birthday party in February 2017;

    (5)of dining out in April 2017;

    (6)of the Filipino-Australian Community function at Surfers Paradise in November 2017 in the company of friends;

    (7)of the parties dining out with friends in January 2018, March 2018 and July 2018;

    (8)of the parties attending the Filipino-Australian Community function in November 2018;

    (9)of celebrations at a friend’s birthday party in November 2018;

    (10)of the parties dining out with friends in December 2020 and having Christmas   lunch on 25 December 2020;

    (11)of the parties celebrating the sponsor’s birthday with friends on 30 July 2021; and

    (12)a variety of other dining and social activities provided with the most recent being New Year’s Eve celebrations on 31 December 2021.

25. A Form 888 was provided on behalf the parties by Javiera Turnbull who has known the sponsor and the visa applicant for three years. Ms Turnbull states that she has contact with the parties normally three times a month for social occasions and also visits them at their home. Ms Turnbull also welcomes the parties into her own home. Ms Turnbull notes that the parties socialise together in the community on a genuine basis and that she sees their relationship as showing love for one another.

26. A statement in support of the parties was provided by Carol Bissaker, a retired schoolteacher, who has known the sponsor for more than 20 years and met the visa applicant in 2016. Ms Bissaker is of the view that the sponsor and visa applicant found love and happiness together and that the union is real and genuine.

27. The Tribunal is satisfied on the evidence that the parties represent themselves to other people as being married to each other and that they enjoy the opinion of friends and family concerning their relationship and plan and undertake joint social activities. The Tribunal weighs the social aspects in favour of the visa applicant.

    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.

28. The parties claim they met at a Latin dancing evening held at the Sharks Club at Southport in March 2016. After they were introduced, the sponsor noticed that the visa applicant was alone and she invited him to join the group of people she was with. They became dancing partners soon after and started to attend venues together for dancing with the visa applicant visiting the sponsors home to practice.

29. In about June 2016 the parties considered themselves in a relationship and shortly thereafter the visa applicant moved to Perth to pursue his studies. The parties continued their relationship during this time with the sponsor visiting the visa applicant in Perth on two occasions in August 2016 and October 2016.

30. The parties eventually commenced living together in Queensland in November 2016 and were married on 8 December 2016. The Tribunal is satisfied on the evidence that the parties have been in the relationship for approximately six years and have lived together, initially as a de facto couple and then as a married couple from November/December 2016.

31. The parties’ evidence is that they are planning for the long-term future together. They have provided financial support to each other, for example when the visa applicant was unable to work the sponsor assisted with financial commitments. The sponsor described the support provided to her by the visa applicant after she was diagnosed with cancer and underwent surgery and treatment. The sponsor describes that the applicant was always by her side during those difficult times. The parties’ evidence is that they have a strong mutual commitment to their marriage. In relation to this evidence, the Tribunal found that the parties’ responses were comprehensive spontaneous and consistent. The parties were not vague or apprehensive in giving their responses. The Tribunal found the parties to be truthful and credible witnesses.

32. The Tribunal is satisfied from the evidence of the parties, together with their statements and those provided by their friends and acquaintances, that they have seen each other through challenging circumstances and have provided each other with companionship and emotional support throughout. The Tribunal weighs the nature of the commitment in favour of the visa applicant.

    Overall conclusions

33. Having carefully considered all the evidence and for the reasons above, the Tribunal is satisfied that at the time of application, the parties had a mutual commitment to a shared life as a married couple to the exclusion of all others; that the relationship between them is genuine and continuing; and that they live together and have done so since November 2016 and as a married couple since December 2016. The Tribunal is therefore satisfied the requirements of section 5F of the act were met the time of the visa application.

34. The Tribunal is further satisfied that at the time of this decision the parties continue to have a mutual commitment to a shared life to the exclusion of all others and that the relationship between them has been and remains genuine and continuing. The Tribunal is also satisfied that they have lived together and not separately and apart on a permanent basis since their marriage. The Tribunal is therefore satisfied the requirements of section 5F(2)(a)-(d) of the Act are met at the time of this decision.

35. The Tribunal is therefore satisfied that the parties relationship fulfilled the criteria contained in clause 820.211(2)(a) of the regulations at the time the visa application was made and at the time of this decision.

36. The Tribunal is satisfied that at the time of the application, the visa applicant was sponsored by his spouse in accordance with cl.820.211(c), as the spouse lodged a Form 40SP sponsorship form in support of the application. The Tribunal is satisfied that at the time of this decision the visa applicant continues to be sponsored by his spouse, as Ms Ellmers attended the Hearing and gave evidence of her continued sponsorship of the visa applicant. The Tribunal is further satisfied that at the time of this application, the visa applicant was the holder of a substantive visa in accordance with cl.820.211(d) and that he continues to meet that subclause at the time of this decision.

37. Pursuant to clause 820.221(1), in order to be eligible for the grant of a subclass 820 (UK) visa, the visa applicant must also continue to meet the requirements of clause 8.820.211(2) at the time of this decision. Having regard to the evidence before the Tribunal, the Tribunal is satisfied that the visa applicant continues to meet the requirements of clause 820.211(2), hence satisfying the criteria in clause 820.221.

38. Therefore, the Tribunal finds that the visa applicant meets the requirements of clauses 820.211(2) and 820.221.

39. 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

40. The Tribunal remits the application for a Partner (Temporary) (Class UK) visa, with the direction that the visa applicant meets the following criteria for a subclass 820 brackets partner) visa:

    ·cl 820.211(2) of Schedule 2 to the Regulations

    ·cl 820.221 of Schedule 2 to the Regulations

    Edward Howard

    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).