Lucena Ielo (Migration)

[2021] AATA 1925

Lucena Ielo (Migration) [2021] AATA 1925 (28 April 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Maria Lucena Ielo

CASE NUMBER:  1730224

HOME AFFAIRS REFERENCE(S):          BCC2016/109471

MEMBER:Helena Claringbold

DATE:28 April 2021

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 820.221(1)(a) of Schedule 2 to the Regulations;

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

Statement made on 28 April 2021 at 9:51am

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – genuine spousal relationship – financial aspects – nature of household – social aspects – nature of commitment – short break in relationship – sponsoring partner passed away – close personal ties with Australia – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5F, 65
Migration Regulations 1994 (Cth), r 1.15A; Schedule 2, cls 820.211, 820.221

CASES
He v MIBP [2017] FCAFC 206

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. On 5 January 2016, Ms Maria Lucena Ielo, also known as Maria Lucena Mejia, the applicant, applied for a Partner (Temporary) (Class UK) visa and a Partner (Residence) (Class BS) visa. The application was based on her spousal relationship with Mr Antonio Ielo, the sponsor.

2. On 29 November 2017, a delegate of the Minister for Immigration and Border Protection refused to grant the visa. The delegate was not satisfied that the applicant and the sponsor are genuine de facto partners. Therefore, the applicant did not meet cl.820.211 of Schedule 2 to the Migration Regulations 1994 (the Regulations) made under the Migration Act 1958 (the Act). On 18 February 2021, the applicant provided the Tribunal with a copy of the delegate’s Decision Record. This is a review of the delegate’s decision brought by the visa applicant.

3. On 20 April 2021, the applicant appeared before the Tribunal to give evidence and present arguments. On 8 April 2021, the applicant wrote to the Tribunal and advised that she does not need an interpreter.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The Tribunal has taken into consideration, individually and as a whole, all of the evidence in the Department of Immigration and Boarder Protection’s (the Department’s) case file and the Tribunal’s case file and the evidence at the Tribunal hearing.

   ISSUE

6. The issue in the present case is whether the applicant is the spouse of the sponsor at the time of application and the time of decision as defined in s.5F of the Act.

   BACKGROUND

7. The applicant was born in 1963 in Capas, Tarlac, Philippines. Her parents and seven sisters live in the Philippines. She has three sisters who live in Australia. From 1988 to 2004 the applicant was in a partner relationship with Mr RL, deceased.  There are three  children from this relationship who live in in the Philippines. On 29 November 2017, the applicant was refused a Partner (Temporary) (Class UK) visa and a Partner (Residence) (Class BS) visa.

8. The sponsor was born in 1932 in Santa Christina D’Aspromonte, Italy.  He declared being previously married to Ms CI, deceased in 2004. There are eight children from this relationship who were born in 1954, 1957, 1958, 1959, 1963, 1965, 1966 and 1971. On 3 May 1962, the sponsor entered Australia and was granted permanent residency.

9. On 10 February 2013, the sponsor and applicant (the parties) first met at the Parklea Markets in Sydney. On 10 February 2015, the parties announced they would be living together and planned to get married later in the year. On 13 September 2015, the parties married in Miranda, NSW. On 19 October 2017, a report of the parties’ marriage was sent to the Republic of the Philippines. As detailed in the delegate’s decision record, on 17 May 2017, the Department received information that the applicant’s relationship with the sponsor ceased. On 30 June 2017, the applicant advised the Department that the parties had reunited.

10. The Tribunal has been provided a copy of a New South Wales, Births Deaths and Marriages Registration Act 1995, Death Certificate.  This recorded that the sponsor died on 9 August 2019.

11. The Tribunal told the applicant that several written statements claiming to be from the applicant and the sponsor appeared to be written by the same person. The applicant stated that the sponsor’s daughter, Ms AM had carriage of the partner visa application and that she wrote all of the statements. 

12. At the Tribunal hearing the applicant stated that she had provided statements from five people. The Tribunal advised the applicant that these statements were not before the Tribunal and not on the Department’s file.  The Tribunal provided the applicant additional time to submit these statements and any other information she felt would support the review.

    Whether the parties are in a spouse or de facto relationship

13. Clauses 820.211(2) and 820.221 of Schedule 2 to the Regulations, 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 have been the spouse of the sponsor who was an Australian permanent resident but the sponsor has died.

14. Clause 820.221(2) requires that an applicant meets the requirements of this subclause if the applicant:

    (a)      would continue to meet the requirements of subclause 820.211(2), (5) or (6) except that the sponsoring partner has died; and

    (b)      satisfies the Minister that the applicant would have continued to be the spouse or de facto partner of the sponsoring partner if the sponsoring partner had not died; and

    (c)      has developed close business, cultural or personal ties in Australia.

    Is the applicant the de facto partner of an eligible citizen?

15. The Tribunal is satisfied that the sponsor, at the time of visa application and decision, was an Australian permanent resident who had turned 18. 

    Were the parties validly married?

16. At the time the visa application was made, the visa applicant provided evidence of her marriage to the sponsor. 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).

    Were the parties in a spousal relationship?

17. ‘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) of the Act.

    CLAIMS AND FINDINGS

18. 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.

    The financial aspects of the parties’ relationship

19. In an undated letter the sponsor supports the applicant’s application for a tourist visa. He stated that he will be responsible for her financial obligations. Remittance transaction forms record money transferred from the sponsor to the applicant as follows: 31 May 2013, $65; 7 April 2013, $150; 24 July 2013, $230; 14 August 2017, $82; 23 August 2013, $50; 18 June 2013, $100; 4 March 2015, $1,300; 17 March 2015, $700.

20. A letter dated 9 November 2015, confirmed the opening of a St George joint retirement access plus bank account ending 2534. Transaction lists dated 6 November 2019 record transactions from 31 July 2018 to 4 November 2019. These record Centrelink pension credit on 8 and 22 August 2019. On 16 September 2019  deposits are noted as $5,000 as ‘Gina Attard loan’ and $5,000 ‘Gina Attard Maria’. On 17 September 2019 debits are noted as $5,000 ‘internet withdrawal inherited’ and $4,000 ‘internet withdrawal inherited’. Various other debits are for ad hoc purchases and services and various small credit interest.

21. Commonwealth bank history transaction lists downloaded on 14 September 2019 have been provided. These are for joint bank account bae 1597 for the sponsor and his previous deceased wife Ms CI. These are dated  June 2019 to July 2019 and show various transactions.

22. In an undated handwritten letter claiming to be from the sponsor, the following is stated. The parties opened a joint bank account with St George but have not had any money to put into it. He is on a pension and that has been going to his bank account with the Commonwealth Bank at Castle Hill. The party’s living arrangements is that they sleep in the same bed. They do not pay rent as his daughter owns the home outright. They attend family and social functions as husband and wife. The visa being refused will destroy him. He included a telephone bill in his name but recording both his and the applicant’s numbers. He has been in and out of hospital many times in the past three years and the applicant has been by his side. A telephone invoice is provided in the sponsor’s name for billing period 1 October to 31 October 2017 and issued on 5 November 2017. Two telephone numbers are recorded on account ending 5721, noted as being the sponsor’s and one on account ending 6157, noted as being the applicant’s. Within the invoice the service provider has recorded both numbers as being the sponsor’s. The address on the account is Benalla Avenue. An Australia Post receipt is provided recording a payment of the Vodaphone telephone account and the payment of a Telstra account.

23. The applicant provided various photographs of jewellery stating that she wore these on her wedding day and a ring and watch were presents for her. A photograph of a handbag is noted ‘2^nd year anniversary present’.

24. The applicant told the Tribunal the following. The sponsor didn’t want her to work and he supported the parties financially. He told the applicant that anything she wanted he would buy for her and all she had to do was ask. The sponsor’s pension was deposited into the joint bank account and bills and food expenses were paid for from the account. She discussed with the sponsor changing the names on account ending 1597, but it always seemed too much trouble and the account continued. When the money in the parties’ joint bank account was depleted the sponsor told her to draw money from account ending 1597.  She held access cards to both bank accounts and managed the payment of bills. Prior to the sponsor’s passing his daughter, Ms GA purchased the sponsor’s house from him. The sponsor told her that he had $100,000 in the bank and his daughter told her that they would use this money when her father died. The sponsor left a will but it was not read in front of her. Ms AM told her that the sponsor left her $10,000 and later Ms GA told her that she could have the sponsor’s car. The Tribunal asked the applicant about credit entries on the account ending 2534, dated 17 September 2019.  The credits are noted as $5,000 ‘Gina Attard Loan’ and $5,000 ‘Gina Attard Maria’.  On 17 September 2019, withdrawals are noted as ‘Internet withdrawal inherited’ for $5,000 and $4,000. The applicant told the Tribunal she spoke with Gina about this and said it is not a loan and the way it has appeared she could be expected to repay the money.  Then the applicant’s son told her to withdraw the money and put it into her personal account and mark it as inherited.

25. The parties did not have any joint ownership of real estate or other major assets or any joint liabilities.  They did not pool their financial resources, especially in relation to major financial commitments; or owe any legal obligation in respect of the other, other than for their joint bank account. The Tribunal accepts that the parties shared day‑to‑day household expenses.

    The nature of the parties’ household

26. In a letter dated 31 December 2015, the sponsor provided information including the following. On 10 February 2015, the parties announced that they were living together at the Benalla Ave address. The applicant told the Tribunal that the parties lived together at the Benalla Ave address in a granny flat.  The main house previously owned by the sponsor had been rented and had tenants in it for the last five years. She did all of the cooking and cleaning and laundry.  However, the parties liked to garden together and the sponsor drove her to the shops and they shopped together.

27. In a post hearing submission, Ms RM stated that she witnessed the parties living together.  They went shopping together and liked to garden. 

28. The parties did not have any joint responsibility for the care and support of children.  The parties lived at one address together. The Tribunal accepts that the parties shared the responsibility for the housework.

    The social aspects of the parties’ relationship

29. In an undated letter the sponsor supports the applicant’s application for a tourist visa. She has four children living in the Philippines. He stated that the applicant will be staying at his residential address for her visit. This is the second time he has invited the applicant.  She also visited in August 2013.

30. In a letter dated 31 December 2015, the sponsor provided information including the following. His children accepted the applicant and the parties would attend family events with them. 

31. In a letter dated 2 January 2016, the applicant stated the following. The parties met from time to time, their relationship developed and the parties began attending family functions together. They also met each other’s families.

32. On 6 December 2017, Ms AM wrote to the Tribunal and stated the following. The sponsor is stressed about the visa refusal.  He is concerned that he may lose his wife of two and a half years and if that happened, he would be devastated. The parties support each other and the applicant has made the sponsor happy.

33. The applicant told the Tribunal the following. Every Sunday the parties went to the club to the ‘eat all you can’ event. Twice a month her three sisters would join them and the sponsor would give them $50 each to play on the poker machines. The parties visited the sponsor’s best friend and his wife in Riverstone and would eat at a club or a restaurant. The sponsor loved driving and they would visit family members and friends.

34. Third party statutory declarations in 2015 provide the following information. Ms MMA, the sponsor’s daughter, met the applicant in March 2013 at the sponsor’s home. She has been in contact with her constantly, through family events, visits to the sponsor’s home, telephone calls, shopping, dinners and lunches. The parties are in love and it seems as if they have known each other all their lives. She is honest, loving and caring to the sponsor.  Mr DRM met the sponsor through his daughter four years ago.  He met the applicant two years ago through the sponsor. They have had numerous dinners at the sponsor’s residence and also at Mr DRM’s residence. He has found the parties committed to their relationship which continues to grow.

35. In a post Tribunal hearing submission, the applicant provided letters which provided information as follows. Ms RMC, the applicant’s sister,  stated that the sponsor visited the family in the Philippines as the applicant’s fiancé. He enjoyed himself, meeting the family and they visited various tourist places together.  The family were saddened by the sponsor’s passing. Ms GA, Ms AM, Ms LM and Ms AMM stated that the applicant was their father’s wife and part of their family for six years. The applicant loved and cared for the sponsor. The applicant interacted with the family and Ms AMM looks forward to seeing the applicant again. Ms JB, the applicant’s sister-in-law, stated that they would visit the parties and vice versa. They enjoyed holidays together and the applicant was a great support to her family. Mr RCC and Ms RDM, who are friends of the applicant and tenants of Ms GA, stated that the applicant was the wife of the sponsor. Ms RM stated that she witnessed the parties living happily together. Their families grew close and she and her family remains close to the applicant. All declarants believe the parties’ relationship to be genuine.  Photographic evidence depicts the parties together and with others at different locations.

36. The Tribunal accepts the following. The parties represented themselves to other people as being in a spousal relationship and were recognised by their family members and friends as being a married couple. The parties planned and undertook joint social activities together.

    The nature of the parties’ commitment to each other

37. In a letter dated 31 December 2015, the sponsor provided information including the following. The parties met on 10 February 2013, when she was visiting her family in Australia. They had coffee and stayed in contact. The applicant returned to the Philippines and the parties remained in contact via Skype. Over time their relationship became closer and when she returned to visit her family in Australia, they spent more time together. He also visited the applicant in the Philippines.  The parties knew that this was going to be a strong firm committed relationship. As time passed the applicant stayed with him in Australia. On 10 February 2015, they announced that they were living together and intended to marry later the same year. On 13 September 2015, the parties married.

38. In a letter dated 2 January 2016, the applicant stated the following. She met the sponsor on about 10 February 2013.  At that time, she was living with her sister. They remained in contact by telephone, Skype, Facebook and through her daughter. Their relationship grew strong and they began living together in February 2015 and married on 13 September 2015.

39. In a letter dated 30 November 2017, claiming to be from the sponsor, the following is stated. The applicant is being denied a visa and he is distraught with this decision. The applicant has been by his side for four years. His eight children love and respect the applicant. They have many plans to have the rest of their lives happy and fulfilled.

40. In a letter dated 12 November 2019, the applicant provided the same information about meeting the sponsor and the development of the relationship and stated the following. During the parties’ courtship she began to realise that the sponsor wanted her to be his ‘better half’. What he felt was no longer platonic but true love and compassion without compromise and with understanding and commitment. Throughout their marriage they had some misunderstandings, but at the end of the day they kissed and made up.

41. The Tribunal put information to the applicant under s.359AA of the Act. The applicant was told the relevance and consequence of the information.  She was invited to comment on or respond to the information and told she could seek additional time to do so. The applicant responded at the Tribunal hearing. The information is as follows:

    ·On 31 March 2017, the Department received information that the applicant’s relationship with the sponsor ceased 10 days prior and the sponsor withdrew sponsorship for the partner visa.

    ·On 24 May 2017, the Department received information that the applicant’s relationship with the sponsor ceased and the sponsor withdrew sponsorship for the partner visa.

1. The applicant responded and stated the following. During this time there was a problem when Ms GA made remarks about ‘Filipinos being greedy’. The applicant was insulted by the comments and told her that she loved the sponsor. The applicant went to live with her sister.  However, she couldn’t settle as she was continually worried about the sponsor and returned to the sponsor’s home. The parties continued to live together happily. The sponsor was elderly and had been unwell for six months.  He became ill and she called the ambulance and then his children. She remained with him sleeping in the hospital for the five days before he died. Her son brought her meals and the sponsor’s children would visit.

2. The Tribunal accepts the following. The parties met in February 2013. In February 2015, they were living together. In September 2015, they married and lived together as a married couple, with the exception of a short break, until the sponsor died on 9 August 2019. It appears that the parties loved and supported each other, gave each other companionship and emotional support and saw their relationship as long term.

3. On the basis of the above the Tribunal is satisfied that the requirements of s 5F of the Act is met at the time the visa application was made.

4. Therefore, at the time of visa application the applicant met cl.820.211(2)(a) of Schedule 2 to the Regulations.

5. On the evidence, the Tribunal is satisfied the applicant would continue to meet the requirements of cl.820.211(2)(a) of Schedule 2 to the Regulations, except that the sponsoring partner has died.  It is satisfied that the applicant would have continued to be the spouse of the sponsoring partner if the sponsoring partner had not died.

   Has the applicant developed close business, cultural or personal ties in Australia?

6. The applicant told the Tribunal the following. The sponsor’s children are close to her. They are interested to know how she is getting on and whether she needs anything.  Two of the daughters asked if she would like to live with them but she declined. They invited her for Christmas and for a birthday party in April 2021 but because of the COVID-19 pandemic she couldn’t attend. She has three sisters and their families in Australia.  Her sister Ms LO has lived in Australia for 20 years and is married with three children.  Her sister Ms MC has lived in Australia for 19 years and is married with one child.  Her sister Ms MH is separated from her husband and has one child.  After the sponsor died, Ms MH asked whether she would move to live with her and her daughter and she agreed.  Ms MH has had her name added as a tenant on her housing commission home. Ms MH is running a business which is becoming busier and the applicant works for her on a Saturday and Sunday and after her niece goes to bed. In addition, she also works with her other sister doing ironing on a Thursday and Friday. Her son is also running a business in Australia and has offered her work. 

7. The Tribunal accepts the following. Ms GA, Ms AM, Ms LM and Ms AMM, the sponsor’s children, respect and care for the applicant. She was part of their immediate family for six years and continues to have ongoing contact with them. The Tribunal realises that the applicant’s sisters were living in Australia for many years prior to the applicant living with the sponsor. However, the applicant continues in a close and continuing relationship with her sisters and they support each other. The applicant’s friends also write of their closeness to the applicant. All declarants are Australian citizens living in Australia.  

8. Overall, the Tribunal accepts that the applicant has close personal ties with Australia. Therefore, the applicant meets cl.820.221(2) of Schedule 2 to the Regulations.

9. Therefore, at the time of application the applicant meets cl.820.211(2)(a) of Schedule 2 to the Regulations. At the time of decision, the applicant meets cl.820.221(2) of Schedule 2 to the Regulations.

10. 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

11. 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)(a) of Schedule 2 to the Regulations; and

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

    Helena Claringbold
    Member

    Migration ATTACHMENT – Extract from 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).