Jaramillo Torres (Migration)

[2019] AATA 4736

Jaramillo Torres (Migration) [2019] AATA 4736 (5 October 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Carolina Jaramillo Torres
Mr Tomas ORTIZ JARAMILLO

CASE NUMBER:  1800339

DIBP REFERENCE(S):  CLF2013/210861 CLF2017/122768

MEMBER:Christine Kannis

DATE:5 October 2019

PLACE OF DECISION:  Perth

DECISION:The Tribunal remits the applications for Partner (Residence) (Class BS) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 801 (Partner) visa:

·cl.801.221(2)(c) of Schedule 2 to the Regulations

and the second named applicant meets the following criteria for a Subclass 801(Partner) visa:

·cl.801.321(a)(ii) of Schedule 2 to the Regulations

Statement made on 05 October 2019 at 9:46am

CATCHWORDS
MIGRATION – Partner (Residence) (Class BS) visa – Subclass 801 (Partner) – continuing de facto relationship – additional documentation before the Tribunal – credible witnesses – financial integration – sharing of living costs – household arrangements – continue cohabitation – social aspects – recognition of relationship by sponsor’s family – commitment to relationship – sponsor’s relationship with wife – Application for Divorce filed – date of separation – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5CB, 65
Migration Regulations 1994 (Cth), r 1.09A; Schedule 2, cls 801.221, 801.321

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 on 2 January 2018 to refuse to grant the applicants Partner (Residence) (Class BS) visas under s.65 of the Migration Act 1958 (the Act).

2. The first named applicant (the applicant) applied for the visa on 23 August 2013 on the basis of her relationship with her sponsor, Mr Jose Edwin Alvarado Hernandez. At that time, Class BS contained only one subclass: Subclass 801 (Partner). The criteria for the grant of this visa are set out in Part 801 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 applicant did not satisfy cl.801.221(2)(c) because the delegate was not satisfied the applicant and sponsor continued to be in a genuine de facto relationship or genuine spousal relationship.

4. A copy of the Decision Record was submitted to the Tribunal by the applicant for the purposes of the review.

5. The applicant appeared before the Tribunal on 16 September 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor.

6. The applicants were represented in relation to the review by their registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. Clause 801.221(2)(c) requires that at the time of this decision the applicant continues to be the spouse or de facto partner of the sponsoring partner who must be an Australian citizen or Australian permanent resident or an eligible New Zealand citizen who was specified in the Subclass 820 visa application as the spouse or de facto partner of the applicant. In the present case the applicant claims to be the de facto partner of the sponsor who is an Australian citizen and was identified in the related Subclass 820 visa application. On the evidence before it, the Tribunal is satisfied that the sponsor is the ‘sponsoring partner’ of the applicant.

9. Section 5CB provides that a person is in a de facto relationship with another person to whom they are not married if they have a mutual commitment to a shared life to the exclusion of all others, the relationship is genuine and continuing, the couple live together, or do not live separately and apart on a permanent basis, and the couple are not related by family: s.5CB(2). In forming an opinion as to whether parties are in a de facto relationship consideration must be given 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.1.09A(3) which is attached to this decision.

10. The issue in the present case is whether the relationship between the applicant and the sponsor continues to meet the definition of a de facto relationship in s.5CB of the Act.

    Background

11. The applicant first arrived in Australia on 18 September 2009 as the holder of a student visa.

12. The applicant and the sponsor first met on 28 October 2009 and they commenced a de facto relationship and committed to a shared life together to the exclusion of all others on 1 August 2011. The applicant has a child from a previous relationship and he is the secondary applicant. He came to Australia in August 2011.

13. At the time the parties met the sponsor was married to Ms Liggia Jeanette Alvarado Hernandez and they had separated on 25 April 2008. The sponsor has two children from this relationship.

14. On 23 August 2013 the applicant lodged a combined application for Subclass 820/801 visas.

15. In making the decision to refuse the visa the delegate relied in part on responses provided by the sponsor during a telephone interview conducted on 19 April 2017 (the telephone interview). Following the telephone interview the Department sent the applicant a Natural Justice letter and she provided a written response dated 3 June 2017 (the written response).

16. The applicant and the sponsor each provided a statutory declaration dated 22 October 2015. The parties also provided later statutory declarations dated 30 May 2017.

17. Prior to the hearing the applicant provided additional documentation which included but was not limited to evidence of joint travel, a statutory declaration sworn by the sponsor on 9 September 2019, evidence of a joint bank account , photos and a written submission from the applicant’s representative. The Tribunal had before it significantly more information than was available to the delegate.

18. The Tribunal considered the matters under r.1.09A(3).

    Whether the parties are in a spouse or de facto relationship

    Financial aspects of the relationship

19. The Tribunal considered the evidence in relation to the financial aspects of the parties’ relationship including the joint ownership of assets, any joint liabilities, the extent of pooling of financial resources, any legal obligations owed to the other party and any sharing of day-to-day household expenses.

20. In their respective statutory declarations dated 22 October 2015 the applicant and the sponsor said they did not have a joint bank account however they had a car together and had jointly purchased household items. The applicant provided Bankwest statements for an account in her sole name which showed transfers of money made by the sponsor in 2016 and 2017.

21. The applicant told the Tribunal that they opened a joint bank account in 2018 because she was repeatedly asked by the Department about their joint financial arrangements. They both work on a full-time basis and there is no fixed agreement about payment of their joint expenses. Prior to opening the joint account she paid their joint expenses from her bank account (into which she and the sponsor deposited money). The sponsor also gave her cash sometimes when contributing to payment of their joint expenses.

22. The applicant and the sponsor gave consistent evidence about the sources of the funds in the joint account and the bills paid from the joint account. They both contribute to the joint account funds and household bills including electricity and internet bills are paid from the account.

23. ANZ account statements in the parties’ joint names for the periods 14 September 2018 to 16 November 2018, 16 November 2018 to 16 January 2019 and 16 May 2019 to 16 July 2019 were provided. Following the hearing the applicant provided notated copies of these statements in which she identified the credit transactions as including payments made to the sponsor by contractors and payments she made into the joint account. The statements showed debit transactions identified as including Alinta, Synergy, Telstra and Woolworths.

24. At the time of providing the written response the applicant provided the sponsor’s superannuation insurance policy report in which she was listed as one of the beneficiaries. The delegate noted this report was current as at 1 June 2017, after the telephone interview, and that it did not show when the applicant was nominated as a beneficiary. Following the hearing the applicant provided documentation dated 25 September 2019 showing she remains a beneficiary.

25. The Tribunal found the evidence indicates that the parties pool their financial resources and share living costs. The Tribunal decided that this is an indicator of a de facto relationship at the time of decision.

    Nature of the household

26. The Tribunal considered the evidence in relation to the nature of the household including any joint responsibility for care and support of children, the parties’ living arrangements and any sharing of housework.

27. The applicant and the sponsor gave consistent evidence about the division of household tasks and the Tribunal did not identify any significant inconsistency in this regard. They also provided consistent evidence about the various addresses at which they have cohabited since 2011.

28. The Department and the Tribunal has been provided with a range of documentary evidence to demonstrate that the parties have resided together at various addresses at which they have cohabited since 2011.

29. The delegate referred to the sponsor’s inability to provide the house number of his current address during the telephone interview. At hearing the sponsor said he was confused and nervous during the telephone interview and this caused him to forget basic information. The Tribunal observed the sponsor’s confusion when questioned at the hearing and accepts that he is unable to think clearly when under pressure.

30. The Tribunal is satisfied that the nature of the parties’ household is an indicator of a de facto relationship at the time of this decision.

    Social aspects of the relationship

31. The Tribunal considered the evidence in relation to the social aspects of the relationship including whether parties represent themselves to other people as being in a de facto relationship.

32. The applicant told the Tribunal that the sponsor has met her mother a number of times when she visited Australia. Her mother has not visited since 2017 due to ill health and the parties are travelling to Colombia in at the end of the year to visit her. Evidence of planned joint travel in November 2019-January 2020 was provided.

33. The applicant said the sponsor has met her cousin in 2018 and her sister in 2012 when they each visited Australia. She said her family members know of and accept her relationship with the sponsor.

34. The applicant told the Tribunal she has not met the sponsor’s daughter who is currently 22. When asked whether the sponsor’s daughter and wife know of the relationship she said they must know but it is not something she discusses with the sponsor.

35. The Tribunal asked the sponsor the reason his daughter has not met the applicant. He said there had not been an opportunity for them to meet as yet. Given that the parties claimed to have been in a relationship since 2009 the Tribunal indicated that it did not accept this explanation. In response to the Tribunal asking whether his daughter and his wife are aware of his relationship with the applicant he said he hasn’t told them and they probably don’t know. He said he has not told his wife because they do not share what they do outside the house and he does not ask her questions about what she is doing. He said he will tell his daughter about the relationship soon but he could not say when this will be.

36. The applicant said she shared time with the sponsor’s son when he was younger but has not done so for many years. When asked the reason for this she said she did not know the reason and it is something the sponsor will not discuss.  The parties gave consistent evidence regarding the contact the sponsor has with his son. He sees his son daily including spending a few hours with him on Saturday morning and on Sunday. Some of this contact takes places in the home he formerly shared with his wife and where she still resides. The sponsor’s son no longer visits his father at the home he shares with the applicant.

37. The sponsor told the Tribunal that his son and the applicant’s son have met but they did not get on well and so he does not force his son to spend time with the applicant and her son. He said his father, brother and sister probably don’t know about his relationship with the applicant however he has very little to do with any of them.

38. The parties gave consistent evidence with respect to their close friends. Statutory declarations attesting to their relationship and recognition as a couple were provided to the Department. The Tribunal noted that the most recent statutory declarations were sworn in May 2017 and consequently requested the applicant to provide more recent evidence. Following the hearing statutory declarations made in September 2019 by friends of the parties were provided.

39. The Tribunal noted that the applicant had travelled overseas on several occasions during the period from 2012 to 2017 without the sponsor. Following the refusal of the visa they have travelled overseas on three occasions and they have a trip planned for the end of the year. The parties gave consistent evidence regarding the reason they have not travelled extensively together. They work for the same employer and it is difficult to take time off at the same time. When they have managed to take time off together they have travelled for short periods only either within Australia or to Bali or Singapore. The parties gave consistent evidence regarding their proposed travel at the end of the year. The sponsor will only be away for two weeks however the applicant will be overseas for several weeks. Evidence of previous and proposed joint travel within and outside of Australia was provided.

40. At hearing the sponsor provided a copy of a Department of Defence identification card. He said he had recently been vetted for employment with the Department of Defence and during that process he nominated the applicant as his partner. No documentary evidence to verify this was provided.

41. The Tribunal acknowledges the parties’ evidence that it is unlikely that the sponsor’s family including his adult daughter are aware of the relationship. The parties and in particular the sponsor did not provide a reasonable explanation for this lack of awareness. The sponsor, in the Tribunal’s view, has deliberately been secretive about the relationship where his family is concerned.  The Tribunal however did not consider this secrecy, for whatever reason, impacts on the genuineness of his relationship with the applicant.  

42. The Tribunal was satisfied that the parties represent themselves to the applicant’s family and to their friends as de facto partners and that they engage in joint social activities at the time of this decision.

    Nature of persons’ commitment to each other

43. The Tribunal considered the nature of the persons’ commitment to each other including the duration of the relationship, the length of time they have lived together, the degree of companionship and emotional support they draw from each other, and whether they see the relationship as long-term.

44. The delegate expressed concerns with respect to the nature of the parties’ commitment to each other and referred to the sponsor’s relationship with his wife. The delegate said that Facebook information suggested the sponsor and his wife are still in a relationship and noted they had both listed that they are married to each other on their individual Facebook accounts. On her Facebook account his wife had also uploaded a photo of the sponsor celebrating his birthday with her and their children in 2013 and a photo of him with his family in Sydney in December 2016.

45. In the written response the applicant said the sponsor maintains a cordial relationship with his wife. She said they are still legally married and his wife has chosen to maintain this status on Facebook.

46. In the sponsor’s statutory declaration dated 30 May 2017 he said he tries to maintain cordial relations with his wife and said he visits her home regularly to collect and drop off his son. He said he attended his wife’s residence to briefly cut a cake in the presence of his children for his birthday, however this is not indicative of a continuing relationship with her, but rather an attempt to maintain good relations due to the shared custody with the children. The sponsor also said he did not have a Facebook account and had never had one.

47. The sponsor told the Tribunal he spent a few days with his wife and children during a holiday to the Gold Coast and Sydney in December 2016. The applicant was overseas at that time and she told the Tribunal he asked if she was agreeable to him going on the holiday because his children had asked him to join them. She said she trusted him and said she spends time with her son’s father when she visits Colombia but they are just friends.

48. The sponsor said he had no control over what his wife posted on Facebook however after the visa was refused he asked her to change her Facebook relationship status and she did so. He insisted to the Tribunal that he has never had a Facebook account and suggested that someone else may have set up an account in his name. The Tribunal noted that the Department’s search showed a Facebook account in the sponsor’s name dated 1 January 2011 and that the only information provided was that he was married to his wife and that he was from El Salvador. There were no photos or posts by the sponsor or anyone else.

49. At hearing the sponsor provided a copy of an Application for Divorce filed in the Family Court on 29 August 2019. The application was a joint application and the hearing date is listed for 23 October 2019 which means the divorce is likely to become final on 24 November 2019. Notably the date of separation as indicated in the joint Application for Divorce is stated to be 1 December 2008.

50. Notably, following the hearing a statutory declaration dated 25 September 2019 made by Ms Liggia Jeanette Alvarado Hernandez was provided. Ms Hernandez confirmed that she and the sponsor separated in December 2008 and that they have remained on amicable terms for the sake and wellbeing of their children.

51. A copy of the sponsor’s Will executed on 19 April 2013 was provided. The applicant and the sponsor’s two children are the beneficiaries.

52. In a statutory declaration dated 9 September 2019 the sponsor said he and the applicant plan to marry at the end of the year. At hearing the applicant told the Tribunal that the sponsor says they will marry at the end of the year when they are overseas. She said he has not proposed yet but her birthday is coming up and he may be waiting until then. The sponsor told the Tribunal he has not formally proposed to the applicant but the plan is to marry at the end of the year.

    Conclusion

53. In this case, although the delegate’s concerns about the sponsor’s responses during the telephone interview, the sponsor’s wife’s Facebook posts and the lack of recognition of the parties’ relationship by the sponsor’s family are adverse to the applicant, the Tribunal has concluded that these concerns do not outweigh the other evidence before the Tribunal at the time of decision.

54. At hearing, the parties provided consistent evidence about the addresses at which they cohabited, their living arrangements, their financial circumstances, their social life and their future plans. The Tribunal found the applicant and the sponsor to be credible witnesses.

1. The Tribunal also places weight on the joint Application for Divorce which states the date of separation of the sponsor and his wife was 1 December 2008.

2. The Tribunal considered whether the parties are in a genuine and continuing de facto relationship and the matters set out in r.1.09A(3).

3. The Tribunal accepts that there is a joint pooling of financial resources, and sharing of day-to-day expenses. The Tribunal accepts that the parties have lived together and continue to live together under household arrangements consistent with a de facto relationship.  The Tribunal accepts the sworn evidence of the statutory declarants as to their genuine opinion about the couple, and accepts - based on the consistency in the evidence before it - that there is support and recognition of their relationship by the applicant’s family and the parties’ friends and that the applicant and sponsor plan and undertake joint social activities together. 

4. Having regard to all of the evidence, the Tribunal concludes as follows:

   ·the parties live together, or do not live separately and apart on a permanent basis;

   ·they are not related by family;

   ·they have a mutual commitment to a shared life together to the exclusion of others; and

   ·the relationship is genuine and continuing.

5. Given these findings the Tribunal is satisfied that at the time of this decision the parties are in a de facto relationship. Therefore the applicant meets cl.801.221(2)(c).

6. The Tribunal is satisfied that the second named applicant meets the secondary criteria for the visa.  Clause 801.321(a)(ii) provides that a secondary applicant can meet cl.801.321 if the applicant was the holder of a subclass 820 visa which ceased on notification of a decision to refuse a subclass 801 visa to the person of whom the applicant is a dependent child or member of the family unit.  In this case, the secondary applicant’s subclass 820 visa ceased due to the refusal of the primary applicant’s subclass 801 visa.  On the evidence, the Tribunal is satisfied that the secondary applicant is the dependent child of the first named applicant.  The Tribunal finds therefore that the secondary applicant meets cl.801.321(a)(ii).

7. 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 801 visa.

   DECISION

8. The Tribunal remits the applications for Partner (Residence) (Class BS) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 801 (Partner) visa:

   ·cl.801.221(2)(c) of Schedule 2 to the Regulations

   and the second named applicant meets the following criteria for a Subclass 801(Partner) visa:

   ·cl.801.321(a)(ii) of Schedule 2 to the Regulations

   Christine Kannis
   Member

   
   

   ATTACHMENT - Extract from Migration Regulations 1994

   1.09A     De facto partner and de facto relationship

   (1)For subsection 5CB (3) of the Act, this regulation sets out arrangements for the purpose of determining whether 1 or more of the conditions in paragraphs 5CB (2) (a), (b), (c) and (d) of the Act exist.

   Note 1   See regulation 2.03A for the prescribed criteria applicable to de facto partners.

   Note 2   The effect of subsection 5CB (1) of the Act is that a person is the de facto partner of another person (whether of the same sex or a different sex) if the person is in a de facto relationship with the other person.

   Subsection 5CB (2) sets out conditions about whether a de facto relationship exists, and subsection 5CB (3) permits the regulations to make arrangements in relation to the determination of whether 1 or more of those conditions 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 in a de facto relationship with 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).