FERMINO DA SILVA (Migration)

[2019] AATA 2472

FERMINO DA SILVA (Migration) [2019] AATA 2472 (18 April 2019)

Corrigendum

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Rodrigo Fermino DA SILVA

CASE NUMBER:  1719031

DIBP REFERENCE(S):  BCC2015/3970743

MEMBER:Mireya Hyland

DATE OF DECISION:  18 April 2019

DATE CORRIGENDUM

SIGNED:1 May 2019

PLACE OF DECISION:  Sydney

AMENDMENT:  The following corrections are made to the decision:

At paragraph 12 of the decision, where the decision refers to ‘Ms Yang’ it should read ‘Mr Da Silva’.

Mireya Hyland
Member

.

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Rodrigo Fermino DA SILVA

CASE NUMBER:  1719031

HOME AFFAIRS REFERENCE(S):          BCC2015/3970743

MEMBER:Mireya Hyland

DATE:18 April 2019

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) visa:

·cl.820.211 of Schedule 2 to the Regulations

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

Statement made on 18 April 2019 at 8:40pm

CATCHWORDS
MIGRATION – Partner (Temporary)(Class UK) – Subclass 820 (Spouse) – insufficient evidence to demonstrate relationship – valid marriage –  evidence from witnesses particularly persuasive – tribunal finds couple mutual commitment to shared life together ­– genuine and continuing relationship – applicant found to be spouse of sponsoring spouse – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5, 65
Migration Regulations 1994, Schedule 2, r 1.15, 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 Immigration and Border Protection to refuse to grant the applicant, Rodrigo Fermino Da Silva, a Partner (Temporary) (Class UK) visa under s.65 of the Migration Act 1958 (the Act).

2. Mr Da Silva applied for the visa on 20 December 2015 on the basis of his relationship with his sponsor, Shannon Careen Da Silva nee Torpy. At that time, Class UK contained 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 delegate refused to grant the visa on 4 August 2017 on the basis that cl.820.211(2) was not met because there was insufficient evidence to demonstrate that Mr Da Silva is the spouse of Mrs Da Silva.

3. Mr Da Silva appeared before the Tribunal on 18 April 2019 to give evidence and present arguments. The Tribunal also received oral evidence from Mrs Da Silva, Guianna Noble, Marcelo Morimoto Benzoni, Sue Langley, Rakesh Nand Kumar, Terry Anne Georgeson, and Rafael Athaydes. Mr Da Silva was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.

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

   Consideration of claims and evidence

5. At the time of the application Mr Da Silva was not the holder of a Subclass 771 (Transit) visa and, for the reasons below, he met the requirements of cl.820.211(2) at the time of the application. Therefore, Mr Da Silva satisfies cl.820.211(1) of the Regulations.

6. Clause 820.211(2)(a) requires that at the time when the visa application was made the applicant was the spouse or de facto partner of an Australian citizen or Australian permanent resident or an eligible New Zealand citizen. In the present case Mr Da Silva claims to be the spouse of Mrs Da Silva who is an Australian citizen: cl.820.211(2)(a)(i). Also, the sponsor must not be prohibited by cl.820.211(2B) of the Regulations from being a sponsoring partner: cl.820.211(2)(a)(ii). Mrs Da Silva was not a woman who was granted a Subclass 204 (Woman at Risk) visa within the five years immediately preceding the application and is not prohibited from being a sponsoring partner: cl.820.211(2B)(a).

7. ‘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 their household and commitment to each other: r.1.15A(3). Each of the specific matters contained in r.1.15A(3) are effectively questions which must be answered[1] and the Tribunal has considered and satisfied itself about each.

   [1] He v MIBP [2017] FCAFC 206.

8. The Tribunal has viewed the Da Silvas’ marriage certificate and finds they were married to each other under a marriage that is valid for the purposes of the Act. They meet s.5F(2)(a).

9. The Tribunal has considered the evidence provided by Mr and Mrs Da Silva, including the birth certificates for their twins, Valentino Marvo and Aurora Suzan, born 21 June 2016. It has also considered their statements and evidence at the hearing, extensive bank statements over time and other financial documents, residential tenancy agreements, a large number of detailed statements from friends and family, photographs, immigration and travel history, and the evidence their witnesses gave at the hearing which it found particularly persuasive. It finds that the evidence strongly supports that the financial aspects of the relationship, the nature of their household, social aspects of their relationship, nature of their commitment to each other, and all the other circumstances of the relationship demonstrate that they have a genuine and  continuing mutual commitment to each other: r.1.15A(3).

10. The Tribunal finds that Mr and Mrs Da Silva have a mutual commitment to a shared life together to the exclusion of all others, are in a genuine and continuing relationship, and live together in Fairy Meadow, New South Wales. They, therefore, meet all the requirements in s.5F(2)(b), (c), and (d) of the Act.

11. Given these findings the Tribunal is satisfied that the requirements of s.5F(2) of the Act were met at the time of application. Although some of the matters on which it has relied occurred after that date, it finds they are nonetheless indicative of the couple’s relationship on 20 December 2015. Therefore, Mr Da Silva was the spouse of Mrs Da Silva and meets cl.820.211(2)(a) of the Regulations. The Tribunal is satisfied that Mr Da Silva was sponsored by Mrs Da Silva who had turned 18 years of age and so satisfies cl.820.211(2)(c). On 5 May 2015 Mr Da Silva was granted a Student (Temporary) (Class TU) Subclass 573 Higher Education Sector visa that ceased on 23 December 2015. As such Mr Da Silva was the holder of a substantive visa on 20 December 2015 and cl.820.211(2)(d) is not engaged.

12. The Tribunal finds that at the time of application Ms Yang met the requirements in cl.820.211(2) of the Regulations. Since Ms Yang was the holder of a substantive visa at the time of application and that visa was not a Subclass 300 (Prospective Marriage) visa, cl.820.211(5)-(9) are not relevant to this matter. Likewise, Mr Da Silva is not one of the class of persons to whom cl.820.211(2A) applies. Mr Da Silva meets cl.820.211 of the Regulations.

13. The Tribunal also finds that at the time of this decision Mr Da Silva is the spouse of his sponsoring spouse, Mrs Da Silva, who is an Australian citizen over the age of 18 and so continues to meet the requirements of cl.820.211(2)(a) and (c) of the Regulations. He, therefore, meets cl.820.221(1) of the Regulations.

14. 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

15. 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(1) of Schedule 2 to the Regulations

    Mireya Hyland
    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).