Lombardo (Migration)

Lombardo (Migration) [2021] AATA 4848 (6 December 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Mr Francesco Lombardo
VISA APPLICANTS:  Ms Thi Thu Van Ha
Miss Ha Uyen Thao Dao
CASE NUMBER:  1933091
DIBP REFERENCE(S):  BCC2018/4459656
MEMBER:Steven Griffiths
DATE:6 December 2021
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal remits the applications for Partner (Provisional) (Class UF) visas for reconsideration, with the direction that the first named visa applicant meets the following criteria for a Subclass 309 (Partner (Provisional)) visa:
·cl.309.211 of Schedule 2 to the Regulations; and
·cl.309.221 of Schedule 2 to the Regulations.

That the Tribunal remits the application for the secondary applicant for reconsideration.

Statement made on 06 December 2021 at 11:21am
CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – genuine and continuing relationship – validly married – pooling of financial resources – shared household responsibilities – photographic evidence of joint social activities – regular visits and cohabitation – regular communication – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5, 65
Migration Regulations 1994, Schedule 2, cls 309.211, 309.221; r 1.15
CASES
He v MIBP [2017] FCAFC 206
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 3 October 2019 to refuse to grant the visa applicants Partner (Provisional) (Class UF) visas under s.65 of the Migration Act 1958 (the Act).
The first named visa applicant (the visa applicant), Ms. Thi Thu Van Ha, and her daughter, Ms. Ha Uyen Thao Dao, applied for the visa on 12 October 2018 on the basis of their relationship with their sponsor, the review applicant, Mr. Francesco Lombardo. At that time, Class UF contained only one subclass: Subclass 309 (Partner (Provisional). The criteria for the grant of this visa are set out in Part 309 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.
The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.309.211 because it was determined the applicant and sponsor were not in a spousal relationship.
The parties were assisted by their registered migration agent, Ms. Angela De Marco, of De Marco Migration Services.
The parties were invited to appear before the Tribunal on 7 December 2021 but following a detailed review of the documented evidence received from the parties prior to this intended hearing, the Tribunal determined that a decision could be made on the information provided without the requirement to hold a hearing.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The Tribunal has taken into consideration all the evidence in the Department of Home Affairs file and the Tribunal file including information provided by the parties prior to the hearing.
ISSUE
The issue in the present case is whether the applicant is the spouse, as defined in s.5F of the Act, of the sponsor.
BACKGOUND OF THE EVIDENCE
Ms. Ha was born in Vietnam in 1965. Her mother is deceased, with her father, born 1929, 5 sisters and 3 brothers, born 1954 to 1975, all living in Vietnam. She was granted a Visitor 600 Visa 18/7/17 and to cease 5/7/18 and arrived in Australia 3/11/17. She departed 29/1/18, returned 1/4/18 and departed 31/5/18. She was granted another 600 Visa 5/7/18 and to cease 5/7/21, arrived 19/10/18, departed 7/12/18, arrived 2/2/20 and departed 23/3/20. She was previously married from 01/1990 and divorced 01/2014, and has 2 daughters, born 1993 and 2000, with the oldest living in Japan and the younger, who is the secondary applicant.
Ms. Dao was born in Vietnam in 2000 and is the second daughter of the applicant.
Mr. Lombardo was born in Italy in 1941. His parents are deceased, and he has a sister and 2 brothers, born 1945 to 1950, who live in Italy. He arrived in Australia 1/1/66. He was previously married in 1967, divorced in March 1993 and has 2 daughters, born 1972 & 1973, who live in Australia. He became an Australian citizen by grant on 23/1/85.
INFORMATION TO THE TRIBUNAL
Since the Department of Immigration made its decision, the applicant has provided further information to the Tribunal including:-
Review application, 20/11/19
Hearing invitation, 28/10/21
Applicant Movement Record, 28/10/21
Hearing response, 10/11/21
26 photos of the parties in Australia with friends
Flight passes for the sponsor, 20/12/19
84 photos of the parties in Vietnam December 2019 to February 2020
Flight passes for the parties to travel Vietnam to Singapore and return 20^th and 28^th January 2020
Flight passes for the parties to travel Vietnam to Australia 1/2/20
Report by Tindaro Fallo, Psychologist, on the sponsor and his mental health issues due to separation from applicant, 27/8/21
Migration Agent submission, 30/11/21
Parties joint name Westpac Bank account, transaction 28/9/20 to 1/11/21
Centrelink confirmation of sponsor advising of marriage to applicant
Documents detailing the parties banquet for 60 guests on 3/1/20 for wedding announcement to family and friends in Vietnam
Receipts for purchases made for parties in Vietnam and Singapore December 2019 to February 2020
Sponsor Westpac bank account, transactions September 2019 to January 2020, including details of withdrawals made while sponsor out of Australia
Statutory Declaration by sponsor, 29/11/21
Statutory Declaration by the applicant, 29/11/21
Statutory Declaration by Ernesto Sorgini, friend of the sponsor, 29/11/21
Statutory Declaration by Ngoc Bich Luu, sister-in-law of the applicant and friend of the sponsor, 29/11/21
Sponsor Westpac bank account, transaction, 04/09/17 to 22/12/17 and 05/03/18 to 29/11/18, detailing spending during time spent with applicant
Wedding announcement invitations for event in Vietnam January 2020
7 photos of wedding announcement celebration for 60 family and friends in January 2020
35 pages of phone log for 2021 calls between the parties
65pages of video call screenshots between the parties and the applicant father and daughter
Items mailed to sponsor by applicant, November 2021, including Christmas Card
Is the sponsor an Australia citizen, and Australian permanent resident or an eligible New Zealand citizen?
Clauses 309.211(2) and 309.221 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 Tribunal accepts the documented evidence of the sponsor being an Australian citizen by grant from 23/1/85.
Whether the parties are in a spouse or de facto relationship
‘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 visa applicant’s and review applicant’s household and their commitment to each other as set out in r.1.15A(3), 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?
If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship.
The Tribunal accepts the documented and photographic evidence of the parties marrying on 16/5/18 in Australia. There is nothing to suggest that the marriage is not valid. 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?
The Tribunal has considered the evidence relevant to the matters in r.1.15A. The Tribunal took into account the available documented evidence contained on the Department’s file and the documented evidence provided to the Tribunal.
CLAIMS AND FINDINGS
Financial aspects of the relationship that must be considered include:-
(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 expense
The Tribunal accepts the documented evidence of the financial issues of the parties and determines at the time of the visa application and this decision they do not have joint ownership of real estate of other major assets.
The Tribunal determines from the documented evidence of the financial issues of the parties that at the time of the visa application and this decision, they do not have any joint liabilities.
The Tribunal accepts the documented evidence that the sponsor is retired, receiving pension payments from the Australian and Italian governments.
The Tribunal accepts the documented evidence of the parties in that for the periods in which the applicant has been in Australia and with the applicant, from November 2017, the sponsor has paid for all purchase needs of the parties and determines this to represent, at the time of the application and this decision, the sharing of day-to-day household expenses.
The Tribunal accepts the documented evidence of the sponsor providing the funds used by the parties during their time together in Vietnam and Singapore in December 2019 and January 2020 and determines this to represent the pooling of financial resources.
The Tribunal accepts the documented evidence of the parties of the sharing of costs for the wedding celebration held in January 2020 by the parties for which 60 family and friends attended and determines this to represent, at the time of this decision, the pooling of financial resources for major commitments.
The Tribunal accepts the documented evidence of the parties operating a joint name bank account, into which the sponsor transfers funds as required, with funds accessed by the applicant at any time she requires to pay for her needs while living in Vietnam and determines this to represent, at the time of the visa application and this decision, the pooling of financial resources and the sharing of day-to-day household expenses.
The Tribunal accepts the documented evidence of the sponsor recently transferring $ 5000 to the joint name account with the funds to be used by the applicant to pay for her air travel to Australia in the hope that a visa is approved soon.
The Tribunal determines from the documented evidence that at the time of the visa application and this decision, none of the parties has a legal obligation to the other.
Nature of the household aspects that must be considered include:-
(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
The Tribunal accepts the photographic and documented evidence of the parties that the applicant has 2 daughters, born 1993 and 2000, with the oldest living in Japan and the youngest living with the applicant, is a student and is the secondary visa applicant, with the parties having joint responsibility for the care and support to a level provided for adult children.
The Tribunal accepts the photographic and documented of the parties of the relationship between the sponsor and the secondary visa applicant as being close, with the sponsor supporting very strongly her being part of the visa application and wishing to assist her with a life in Australia.
The Tribunal accepts the documented evidence of the parties that the sponsor has 2 adult daughters, born 1972 & 1973, who live completely independent lives and do not have a relationship with their father.
The Tribunal accepts the documented and photographic evidence that the parties have lived together in Australia from their marriage on 16/5/18 until 31/5/18, again from 19/10/18 until 7/12/18 and again from 1/2/20 to 23/3/20, while also having living together in Vietnam and Singapore from 20/12/19 until 1/2/20, this being approximately 157 days.
The Tribunal accepts the documented evidence that the parties, due to their ages, live a quiet life at home, sharing the actions required to care for each other and working in the garden of the long-term home of the sponsor where the parties live when the applicant has been in Australia since their wedding.
The Tribunal accepts the documented evidence of the parties having spent 114 days together in Australia and 43 days together in Vietnam and Singapore, with household responsibility roles shared during these times and determines, at the time of the application and this decision, the parties have shared responsibility for housework, while recognising the parties live in different countries and places little weight on this.
Social aspects of the relationship that must be considered include:-
(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
The Tribunal accepts the documented and photographic evidence of the parties marrying in Australia on 16/5/18, with family and friends in attendance.
The Tribunal accepts the documented and photographic evidence of the wedding celebration in Vietnam on 3/1/20 shared by 60 the applicant’s family and friends.
The Tribunal accepts the documented and oral evidence of the parties that the sponsor spent considerable time in his trip to Vietnam to connect with and get to know the siblings, and their families, and in particular the youngest daughter of the applicant as she is the secondary applicant and seeking to live in Australia with the parties.
The Tribunal accepts the documented evidence of the parties that the sponsor had previously met and become friends with the father of the applicant as he had visited Australia previously to spend time with this son, daughter-in-law and grandson, who are the neighbours of the sponsor.
The Tribunal accepts the documented and photographic evidence of the contact the parties have with family and friends and determines, at the time of application and this decision, the parties represent themselves to other people as being married.
The Tribunal accepts the documented evidence of the sponsor has been living by himself since 1993 when he and his first wife were divorced, and has been lonely with few close friends, while he did develop a close relationship with the sister-in-law of the applicant who is his neighbour, and from this his connection to the applicant came when she came to Australia to visit her relatives.
The Tribunal accepts the documented evidence of the sponsor being a traditional older Italian gentleman and that for him the only way he could live with a person was to be married.
The Tribunal accepts the documented evidence provided by the friends of the sponsor on the respect and belief they have in the relationship and marriage of their friend.
The Tribunal accepts the documented evidence provided by the sister-in-law of the applicant, who is also a very close friend of the sponsor, on the respect and belief they have in the relationship and marriage of their relative and friend.
The Tribunal accepts the photographic evidence of the mother and family members of the applicant being with the applicant and sponsor during the trip made by the sponsor to Vietnam as evidence of the support they have for the relationship and marriage of the parties.
The Tribunal accepts the documented and photographic evidence that the party’s families and their friends, at the time of the visa application and this decision, are extremely supportive of their marriage.
The Tribunal accepts the documented and photographic evidence that the parties have planned and undertaken social activities in Australia prior to and following their marriage and in Vietnam and Singapore and determines, at the time of the visa application and this decision, the parties have planned and undertaken joint social activities, while recognising the parties live in difference countries and places little weight on this.
Nature of the commitment to each other that must be considered include:-
(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.
The Tribunal accepts the documented and photographic evidence of the first trip made by the applicant to Australia was for her to visit relatives, with the sponsor their next-door neighbour, and it was a meeting on the first day the applicant was in Australia that the relationship developed, with the sponsor telling the applicant he loved her 10 days after the first meeting and the relationship being one of a commitment to each other and their marriage on 16/5/18.
The Tribunal accepts the documented and photographic evidence that the parties have lived together in Australia from their marriage on 16/5/18 until 31/5/18, again from 19/10/18 until 7/12/18 and again from 2/2/20 to 23/3/20, while also having living together in Vietnam and Singapore from 20/12/19 until 2/2/20, this being approximately 157 days, while recognising the parties live in different countries and places little weight on this.
The Tribunal accepts the documented evidence of 35 pages of phone log for 2021 calls between the parties and 65 pages of video call screenshots between the parties and the applicant father and daughter, noting contact has always been multiple times per day.
The Tribunal accepts the documented evidence of a report dated 27/8/21 by Report by Tindaro Fallo, Psychologist, on the sponsor and his mental health issues due to separation from applicant, noting in particular the statement that the sponsors mental health and emotional wellbeing will most likely benefit from his reunion with the applicant.
The Tribunal accepts the documented evidence of the parties of the support the parties have provided to each other and determines, at the time of application and this decision, a high level of companionship and emotional support is provided by each of the parties to the other.
The Tribunal accepts the documented evidence of the relationship and determines, at the time of application and this decision, the parties have an ongoing commitment to each other, and the two daughters of the applicant, the relationship and their marriage.
Any other circumstances of the relationship
The Tribunal notes that the parties, while having difficult country of origin backgrounds with the sponsor being from Italy and the applicant from Vietnam, communicate in English.
The Tribunal considered all the evidence on the circumstances of the parties and determines the evidence supports a finding that at the time of the application and this decision, the parties have had and continue to have a mutual commitment to a shared life together as a couple to the exclusion of all others, with the relationship genuine and continuing and they do not live permanently apart.

On the basis of the above the Tribunal is satisfied that the requirements of s.5F(2) are met at the time the visa application was made and the time of this decision.
Therefore the visa applicant meets cl.309.211 and cl.309.221.
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 309 visa.
Given the findings above, the appropriate course is to remit the application for the secondary visa applicant to the Minister to consider the remaining criteria.
DECISION
The Tribunal remits the applications for Partner (Provisional) (Class UF) visas for reconsideration, with the direction that the first named visa applicant meets the following criteria for a Subclass 309 (Partner (Provisional)) visa:
·cl.309.211 of Schedule 2 to the Regulations; and
·cl.309.221 of Schedule 2 to the Regulations.
The Tribunal remits the application for the second applicant for reconsideration.
Steven Griffiths
Member

ATTACHMENT - Extract from Migration Regulations 1994
1.15ASpouse
(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).

[2021] AATA 4848

6 December 2021

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