Guido (Migration)

[2020] AATA 2992

Guido (Migration) [2020] AATA 2992 (14 July 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Cherelyn Andojar Guido
Miss Yuane Kheylie Andojar Guido

CASE NUMBER:  1803054

HOME AFFAIRS REFERENCE(S):          BCC2016/3016594

MEMBER:John Longo

DATE:14 July 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the applications 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; and

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

Statement made on 14 July 2020 at 11:40am

CATCHWORDS

MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Spouse) – spousal relationship – validly married – financial, household and social aspects of relationship – nature of commitment – consistent and credible evidence – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), ss 5F(2), 65

Migration Regulations 1994 (Cth), r 1.15A(3) Schedule 2, cll 802.211(2), 802.221(1)(a)

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 to refuse to grant the applicants Partner (Temporary) (Class UK) visas under s.65 of the Migration Act 1958 (the Act).

2. The first named applicant (the applicant) applied for the visa on 11 September 2016 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 (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. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.820.211 because the delegate was not satisfied that the evidence and information provided in relation to the matters prescribed under r.1.15A by the visa applicant were sufficient to show that the visa applicant was the spouse of the sponsor.

4. The applicants appeared before the Tribunal on 6 March 2020 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s sponsor, Mr Michael Coppens, and Ms Rosa Stivaletta. The Tribunal hearing was conducted with the assistance of an interpreter in the Tagalog and English languages.

5. The applicants were represented in relation to the review by their registered migration agent. The representative attended the Tribunal hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The primary criteria to be satisfied at the time of application are that the applicant is not the holder of a Subclass 771 (Transit) visa and that she meets one of the alternative requirements set out in cl.820.211(2), (5), (6), (7), (8) or (9): cl.820.211(1) of Schedule 2 to the Regulations.

8. The Tribunal has reviewed the applicant’s movement records, which also detail her visa status at various times. The Tribunal is satisfied that the applicant was not the holder of a Subclass 771 (Transit) visa at the time of application. Therefore, the Tribunal finds that cl.820.211(1)(a) is met.

9. The subclause relevant to the applicant’s circumstances is cl.820.211(2). The key issue for determination is whether, at the time of application on 11 September 2016, the applicant was the spouse of the sponsor. The Tribunal also considered, at the time of this decision, whether the applicant continues to be the spouse of the sponsor and meets the criteria in cl.820.221(1)(a) of Schedule 2 to the Regulations.

   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 applicant is the spouse or de facto partner of an Australian citizen or Australian permanent resident or an eligible New Zealand citizen. The applicant claims to be the spouse of the sponsor who is an Australian citizen. The Tribunal notes that evidence of the sponsor’s passport is on the Department’s file. The Tribunal is satisfied that the sponsor is an Australian citizen.

    Are the parties in a spousal relationship?

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).

12. 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 r.1.15A(3) of the Regulations, which is extracted in the attachment to this decision. Each of the specific matters contained in r.1.15A(3) are effectively questions which must be answered: He v MIBP [2017] FCAFC 206.

    Are the parties validly married?

13. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. The applicant and the sponsor were married in Broome, Colorado, Western Australia, on 28 August 2016. A copy of the parties’ Certificate of Marriage has been provided to the Tribunal. 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).

    Consideration of the r.1.15A(3) factors

14. In assessing the issues in r.1.15A(3), the Tribunal has had regard to all documents on the Department’s and the Tribunal’s files.

    The financial aspects of the relationship

15. 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.

16. The applicant and the sponsor provided written evidence about the financial aspects of their relationship. They have a joint bank account which is used for the payment of bills and utilities. The applicant and sponsor also have separate accounts for their income and share the costs relating to the applicant’s daughter. The applicant stated that the sponsor pays for the schooling costs. While the sponsor doesn’t ask for reimbursement of these costs, she shares these costs. The applicant stated that they share the cost of bills if she has enough income but if not, the sponsor pays the bills and she pays for the groceries.

17. The applicant stated that she commenced casual employment as a housekeeper in October 2016, working five days per week. The applicant stated, and the sponsor confirmed in his evidence, that the sponsor works full-time between May and November each year and then does not work for the remainder of the year. The sponsor stated that in addition to his employment, he draws a monthly payment from his superannuation.

18. The sponsor confirmed that they share the payment of bills and also the costs of the applicant’s daughter. The applicant is the beneficiary of the sponsor’s superannuation accounts but they have not made a will. The sponsor also confirmed that while they have a joint account and separate accounts, they each know the account details and passwords for access to their individual accounts. The sponsor stated in his written submissions that he owns his home and car outright. He had made enquiries as to adding the applicant to the title of his home but was advised that the cost would be considerable given the applicant is not a permanent resident. He intends to do this when she obtains permanent residency. The sponsor stated that he bought a second vehicle, which will be registered in the applicant’s name once she obtains her licence. The have also bought furniture together since they married.

19. There is evidence of joint expenditure, in the joint bank statements provided to the Tribunal. The Tribunal notes that the applicant submitted minimal documentary evidence in support of these claims at the time of the application and the sharing of expenses. The Tribunal is not troubled by the lack of documentary evidence as it might be in another case. This is because the Tribunal found the totality of the parties’ evidence to be credible and accepts this evidence of joint financial responsibility. While there are minimal assets owned jointly, both the applicant’s and sponsor’s respective assets and expenses are clearly shared by both parties. The Tribunal is satisfied that there is evidence of both the applicant and sponsor are jointly liable for utilities. Accordingly, the Tribunal finds that, at both the time of application and at the time of this decision, the applicant and the sponsor pooled and continue to pool their financial resources and they shared and continue to share their day-to-day household expenses. The Tribunal gives positive weight to the evidence of the financial aspects of the relationship.

    The nature of the household

20. 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. The evidence before the Tribunal shows that the visa applicant has a child.

21. In relation to the living arrangements, the Tribunal notes that the applicant and sponsor reside together, both at the time of the application and currently. The evidence indicates that, at the time of the application, they were living in Western Australia. Both the applicant and sponsor provided evidence that they are currently living together, which included utilities in joint names and driver’s licence documentation. Both the applicant and sponsor gave consistent evidence as to the living arrangements – they reside in a two-bedroom property in the sponsor’s name, with the applicant and the sponsor sharing one room and the applicant’s daughter in the second bedroom.

22. The applicant stated that she manages the household chores while the sponsor attends to the garden and maintenance. The applicant stated that she does most of the cooking, although the sponsor does barbecue.

23. The applicant stated that they have shared caring responsibilities for the applicant’s daughter including preparing her for school, drop-off and pick-up, and other caring responsibilities and activities. The Tribunal notes that the sponsor has known the applicant and her daughter for approximately six years, as stated in his statement to the Tribunal, and has provided care and been involved in her life since this time.

24. Accordingly, the Tribunal finds that, at both the time of application and at the time of this decision, the applicant and the sponsor have shared household responsibilities and living arrangements. The Tribunal also accepts the parties’ consistent evidence about the division of household chores and tasks, including the caring responsibilities for the child. The Tribunal gives positive weight to the evidence of the nature of the household.

    The social aspects of the relationship

25. 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.

26. There is evidence before the Tribunal that, both at the time of the application and at the time of the Tribunal’s decision, the applicant and the sponsor were continuing to represent themselves to other people as being married to each other. In addition, there is also evidence that the applicant and sponsor represented themselves as a couple prior to their marriage, having met and socialised extensively with the applicant’s family overseas. For example, the Tribunal notes the photographs that were submitted from the applicant’s and sponsor’s trips overseas in the Philippines, the celebration of their wedding, and spending time with each other and the applicant’s child. The photographs also depict the parties socialising and attending official functions. The Tribunal has also reviewed and considered the Form 888 statutory declarations in support of the application. The Tribunal notes that this evidence was before the delegate.

27. The applicant and the sponsor gave consistent evidence about the social aspects of their relationship. The applicant gave particular evidence of the joint social activities arising from the applicant’s and sponsor’s involvement in the local community and travelling together. The sponsor and applicant detailed numerous activities that they share, such as walking the dog, taking the applicant’s daughter to the public pool and socialising with friends. The Tribunal finds that the Form 888 statutory declarations show that opinions of friends and acquaintances are that the applicant and sponsor represent themselves as being married to each other. In light of the evidence before the Tribunal, the Tribunal finds that there is positive evidence of the social and public recognition of the relationship and places great weight on the evidence of their social relationship.

    The nature of the persons’ commitment to each other

28. 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.

29. The Tribunal notes that the applicant and the sponsor made statements which are on the Tribunal’s file. The parties gave a detailed account of the inception and development of their relationship. The evidence before the Tribunal is that the parties have been in an exclusive and committed relationship for many years, having first met in 2012 in the Philippines. The Tribunal gives weight to the evidence of the duration of the relationship as well as the length of time the persons have lived together which, based on their written evidence, has been since 2016.

30. The Tribunal notes their oral evidence that they have a strong and committed relationship and support each other and that they wish to be lifelong partners. They have plans for their future together and the mutual support provided to each other in relation to their travel, and possibly further children. The Tribunal gave particular note to the oral and written statements of the applicant’s and sponsor’s mutual friend, who spoke to the Tribunal at the hearing about the genuineness of their relationship based on their mutual love, care and commitment as she has observed during the six-year period she has known both parties.

31. The Tribunal took into account the consistent evidence of the applicant and sponsor that they see their relationship as being a long-term relationship and their reasons for holding this view, including their mutual financial plans, their mutual care of the applicant’s child, and ongoing shared life and support. The Tribunal accepts that these factors are indicative of their genuine commitment to the relationship. In light of all the evidence before the Tribunal, the Tribunal finds that the parties see their relationship as long-term.

32. The Tribunal is satisfied, considering all of the documentary evidence cumulatively, that the parties have demonstrated and continue to demonstrate a level of commitment to one another and to their spousal relationship as contemplated in the Regulations. The Tribunal places great weight on the evidence of the nature of each person’s commitment to the other.

    CONCLUSION

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

34. After considering all the evidence before it and for the reasons given with respect to the r.1.15A(3) matters, the Tribunal is satisfied that, at the time of the application, the applicant and the sponsor:

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

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

    ·live together and not separately and apart on a permanent basis.

35. Given these findings, the Tribunal is satisfied that the requirements of s.5F(2) were met at the time of the application.

    Time of application and time of decision requirements

36. 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.

37. Mr Coppens completed a sponsorship for a partner to migrate to Australia form as the applicant’s partner and sponsor. The form declares that he will support the applicant and will continue to do so. Accordingly, the Tribunal is satisfied that the applicant is sponsored by Mr Coppens and that cl.820.211(2)(c)(i) is met. The Tribunal also finds that Mr Coppens is not prohibited by cl.820.211(2B) from being a sponsoring partner. Accordingly, the Tribunal also finds that cl.820.211(2)(a)(ii) is met.

38. The applicant’s movement records evidence her as having been granted a Visitor (Class FA) Subclass 600 visa on 10 May 2016. She held this substantive visa upon applying for the Partner (Temporary) (Class UK) Subclass 820 visa on 11 September 2016. As the applicant held a substantive visa at the time of application, the further requirements in cl.820.211(2)(d) need not be met. The Tribunal finds that the applicant meets the time of application requirements in cl.820.211(1) as she meets the requirements in cl.820.211(1)(a) and (b), the latter on the basis of meeting all the requirements in cl.820.211(2).

39. However, the requirements in cl.820.221(1)(a) must also be satisfied, if the Tribunal is to determine that the applicant continues to meet the requirements at the time of the decision. The Tribunal finds that, at the time of this decision, and based on the findings of fact discussed in these reasons above, the applicant continues to meet the time of application requirements in cl.820.221(1)(a) at the time of decision.

40. The Tribunal has not determined whether the secondary applicant is a member of a family unit of the primary visa applicant. As the Tribunal has found that the primary visa applicant met cl.820.211(2) and cl.820.221(1)(a), it follows that the secondary visa applicant’s application should be reconsidered to determine that they satisfy the criteria to be a member of a family unit of a person who has satisfied the primary criteria.

41. 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

42. 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; and

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

    John Longo
    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).