Gaspar (Migration)

[2024] AATA 4055

Gaspar (Migration) [2024] AATA 4055 (10 October 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Ruby Gaspar

CASE NUMBER:  2422499

HOME AFFAIRS REFERENCE:               BCC2023/2852442

MEMBER:Glynis Bartley

DATE:10 October 2024

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(2) of Schedule 2 to the Regulations

·cl.820.221 of Schedule 2 to the Regulations

Statement made on 10 October 2024 at 9:43am

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 – applicant is wholly reliant upon on the sponsor’s income to meet her day-to-day needs – parties’ relationship is recognised and supported by their families and friends – nature of the household is an indicator of a genuine and continuing relationship – parties see their relationship as a long-term commitment – 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

ISSUE

1. The issue in this review is whether the applicant, Mrs Ruby Gaspar, is the spouse of her sponsor, Mr Ian Cross, as defined in s 5F of the Migration Act 1958 (Cth) (the Act) at the time of application and at the time of making this decision.

   APPLICATION FOR REVIEW

2. 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 Act.

3. The applicant applied for the visa on 22 May 2023 on the basis of her relationship with her 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.

4. The delegate refused to grant the visa on 21 June 2024 on the basis that the applicant did not meet cl.820.211(2) of the Regulations. The delegate said the applicant had failed to respond to numerous requests for further documents to support the application. On the basis of the evidence provided, the delegate was not satisfied that the applicant is the spouse of her sponsor, as defined in s 5F of the Act.

5. On 12 July 2024, the applicant applied to the Tribunal for review of the delegate’s decision.

6. The applicant appeared before the Tribunal on 9 October 2024 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor and his brother, Mr Donald Cross.

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

   BACKGROUND

8. The applicant is a 40-year-old citizen of the Philippines. She has not declared any previous marriages or de facto relationships. The applicant’s mother usually lives in the Philippines but is currently in Australia on a Visitor visa. The applicant does not have any contact with her father. She does not have any siblings. The applicant is not currently in the paid workforce.

9. The sponsor is a 64-year-old Australian citizen by birth. He has declared one previous marriage which ended in divorce. The sponsor has three surviving children (two daughters and a son) from that relationship. The sponsor’s parents are deceased. He has three surviving siblings (two brothers and a sister). The sponsor is employed as a truck driver.

10. The applicant and the sponsor (the parties) said in the application that they met online in 2016 after being introduced by one of the sponsor’s work colleagues. They spoke regularly via social media and formed a romantic relationship in 2020. The applicant travelled to Australia on 22 October 2022 after being granted a Visitor visa (Subclass 600). She was granted a second Visitor visa on 7 January 2023, which ceased on 7 July 2023. The parties were married in Sydney on 15 April 2023 and their son was born in July 2023.

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. Prior the hearing, the applicant submitted additional documents to support the application including but not limited to the following: bank statements in the applicant’s name and in the sponsor’s name, a copy of the birth certificate for the parties’ son, and a letter from a neighbour.

12. In making my decision, I have had regard to the documents in the Department and Tribunal files and the oral evidence at the hearing. I had the benefit of receiving evidence that was not available to the delegate, including a copy of the parties’ son’s birth certificate and oral evidence in person at the hearing.

13. The parties gave consistent and coherent oral evidence regarding the inception and development of their relationship, their current living arrangements, the birth of their son and each other’s families. I considered them to be credible. The sponsor’s brother, Mr Cross, told me that he visits the parties every weekend and has formed a close relationship with the applicant and his nephew. The sponsor’s brother gave his oral evidence in an open and forthright manner, and I considered him to be a sincere witness. I have placed weight on the oral evidence at the hearing as I am satisfied that it is reliable.

    Whether the parties are in a spouse or de facto relationship

14. Clauses 820.211 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.

15. ‘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?

16. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. The applicant provided a copy of the parties’ marriage certificate to the Department at the time of application. There was no evidence before me to cast doubt on the validity of the parties’ marriage at Fairfield West on 15 April 2023, and it was not disputed by the delegate. Consequently, in the absence of any evidence to the contrary, I find that 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

17. The parties do not own any joint assets or have joint liabilities. They live in a rented two-bedroom granny flat and the lease for the property is in the sponsor’s sole name because it was signed in 2016, prior to the applicant’s arrival in Australia. The applicant is not currently in the paid workforce and does not have any income of her own because she is the primary carer for the parties’ infant son. The sponsor works full-time as a truck driver and receives family tax benefit from Centrelink. The bank account statements provided confirm that the sponsor transfers the family tax benefit he receives to the applicant to enable her to purchase formula, clothing and other essential items for their son.

18. As the applicant does not have any income of her own, the sponsor pays all of the rent, utilities, food and other day-to-day household expenses for the parties and their son. They do not pool their financial resources because the applicant does not have any income or savings of her own. I accepted the applicant’s oral evidence that the parties do not owe any legal obligations to one another.  

19. The parties gave a near identical account of their financial circumstances, including their rent and the sponsor’s income from employment and Centrelink. The bank account statements provided show regular transfers from the sponsor to the applicant of varying amounts. The applicant was aware that the sponsor is repaying a personal loan, although she was unsure what the loan was for or how much is owing. The sponsor explained that he purchased a car and boat prior to the applicant’s arrival in Australia and the loan is almost repaid.

20. There was consistent and compelling evidence that the applicant is wholly reliant upon on the sponsor’s income to meet her day-to-day needs. The financial aspects of the relationship are consistent with the parties being in a genuine and continuing spouse relationship.

    Nature of the household

21. I am satisfied on the basis of the evidence that the parties have been living together since the applicant arrived in Australia in October 2022. They live in a two-bedroom granny flat with their infant son. The applicant’s mother is visiting from the Philippines and staying with the parties to help care for their son (her only grandchild). The parties gave a consistent account of their household arrangements, including that the applicant and her mother do the majority of the cooking, cleaning and laundry in the home. The sponsor provides some assistance with domestic duties, including mowing the grass.

22. I find that the parties have joint responsibility for the care and support of their 14-month-old son. The sponsor gave oral evidence that he enjoys spending time with his son and looks forward to the enthusiastic greeting he receives from him each afternoon when he arrives home from work. The sponsor provides some assistance with day-to-day care tasks, including feeding, dressing and settling.

23. The sponsor’s brother, Mr Cross, gave oral evidence that he visits the parties at their home each Saturday to spend time with them and his nephew. He confirmed the parties’ account of their household living arrangements.

24. The establishment of a joint household since the applicant arrived in Australia two years ago is consistent with a finding that the parties are in a genuine and continuing spouse relationship.

    Social aspects of the relationship

25. I accepted that around 50 guests attended the parties’ wedding celebration in April 2023, including the sponsor’s son from his first marriage and the sponsor’s three siblings. A number of the sponsor’s friends and work colleagues also attended. The applicant’s mother could not attend as she was in the Philippines. Photographs provided by the applicant confirm the parties’ oral evidence about the occasion.

26. The parties enjoy going shopping together and having barbeques at home with extended family members on the weekends. They socialise with the sponsor’s siblings on a weekly basis. The parties went to the wedding of one of the sponsor’s brothers together. They recently took their son to the zoo. During the hearing, the applicant showed me photographs on her phone of the parties with their son at various social outings, including at parks and at the zoo. The sponsor’s brother confirmed his regular social contact with the couple and his close family relationship with them. He strongly supports the parties’ relationship and attested to the sponsor’s greatly improved personal circumstances and happiness since the applicant arrived in Australia two years ago.

27. The parties gave consistent and persuasive evidence that they have advised Centrelink of their marriage. Correspondence sent to the applicant from Centrelink confirms that she is the sponsor’s nominee.

28. I am satisfied that the parties’ relationship is recognised and supported by their families and friends. I find that the parties plan and undertake social activities with others. In addition, the parties represent themselves to their families, friends and the wider community as being in a committed spouse relationship.

29. The social aspects of the parties’ relationship support a finding that they are in a genuine and continuing spouse relationship.

    Nature of the persons’ commitment to each other

30. I find that the parties have been in a committed relationship for four years and have been living together for two years. Their decision to have a child together is strong evidence that the parties are in a committed relationship and wish to spend the rest of their lives together.

31. The parties gave an entirely consistent account of the birth of their son, including that he was born by caesarean section after the applicant developed high blood pressure. The sponsor was present in the theatre at the time of the birth to offer the applicant support and reassurance. He drove the applicant and their son home from hospital upon discharge. The sponsor is listed on the birth certificate as the child’s father. It was clear throughout the hearing that the sponsor has developed a close bond to the parties’ son. The sponsor spoke in a warm and loving manner when discussing the joy that the parties’ son has brought to his life. The parties’ son was present during some of the hearing and the sponsor’s interactions with him were caring and familiar.

32. The parties provided similar evidence regarding their plans for the future. They do not wish to have any more children because of the sponsor’s age and their straitened financial circumstances. The applicant hopes to find work when the parties’ son is older so she can help provide for the family. The parties do not have any plans to change their accommodation or living arrangements. They wish to spend as much time as possible with their son and enjoy his early years.

33. The sponsor’s brother gave compelling evidence about the strength of the parties’ relationship and their genuine care for one another. The sponsor was open about his love for the applicant and his desire for the parties to remain together. The parties gave consistent oral evidence about each other’s families, daily routines and living arrangements. It was clear from their presentation at the hearing that the parties provide one another with companionship and emotional support.

34. I am satisfied that the parties have a long-term commitment to each other. This provides significant weight in support of a finding of a genuine and continuing spouse relationship.

    Conclusions on spouse/de facto criteria

35. After having regard to all of the circumstances of the relationship between the applicant and her sponsor, I am satisfied that they have a mutual commitment to a shared life together to the exclusion of all others. I am satisfied that the relationship between the parties is genuine and continuing. I find that they live together and that therefore they do not live separately and apart on a permanent basis.

36. On the basis of the above, I am satisfied that the requirements of s 5F(2) are met at the time the visa application was made and at the time of this decision. Therefore, the applicant meets cl.820.211(2)(a) and continues to meet this criterion at the time of this decision.

37. The sponsor was over the age of 18 years at the time of application, and he continues to be the sponsoring partner. The sponsor is an Australian citizen by birth. Accordingly, the applicant satisfies the criteria in cl.820.211(2)(c) at the time of application and continues to meet this criterion at the time of this decision. The applicant held a substantive visa when she lodged the application (a Visitor visa), so the criteria in cl.820.211(2)(d) is not relevant.

38. For the above reasons, I find that the applicant meets the criteria in cl.820.211(2). As the applicant continues to meet the requirements of cl.820.211(2) at the time of this decision, she meets the criteria in cl.820.221.

    Overall conclusion

39. Given the findings above, the appropriate course is to remit the applications 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 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

    Glynis Bartley
    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).