Macalisang (Migration)

Macalisang (Migration) [2023] AATA 882 (29 March 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Miss Arnellen Tampac Macalisang
REPRESENTATIVE:  Mrs Marimi Tanag (MARN: 1386887)
CASE NUMBER:  1900101
HOME AFFAIRS REFERENCE(S):          BCC2016/4228473
MEMBER:Cheryl Cartwright
DATE:29 March 2023
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the application for a Partner (Temporary) (Class UK) visa, with the direction that the visa applicant meets the following criteria for a Subclass 820 (Partner) visa:
·cl 820.211 of Schedule 2 to the Regulations
·cl 820.221 of Schedule 2 to the Regulations
·reg 2.03A

Statement made on 29 March 2023 at 12:24pm
CATCHWORDS
MIGRATION –Partner (Temporary) (Class UK) visa – Subclass 820 – parties were and are in a valid de facto relationship – genuine and continuing relationship – had and have a mutual commitment to a shared life as de facto partners to the exclusion of all others – decision under review remitted
LEGISLATION
Migration Act 1958, ss, 5, 65, 376
Migration Regulations 1994, rr 1.09, 2.03, Schedule 2, cls 820.211, 820.221
CASES
El Jejieh v Minister for Home Affairs (No 2) [2019] FCCA 840
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 Home Affairs to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 14 December 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 (Cth) (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 820.211 because insufficient evidence had been provided to demonstrate that the applicant was the spouse or de facto partner of the sponsor, as defined under section 5F and 5CB of the Migration Act.
The applicant appeared before the Tribunal on 31 January 2023 and 28 March 2023 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor, Mr Michael Salahoris, friends of the parties, Ms Linda Loukas and Mr Mario Christodolou and the son of the sponsor, Mr Dimitrios Salahoris. The Tribunal hearing was conducted with the assistance of an interpreter in the Tagalog and English languages.
The applicant was represented in relation to the review. The representative attended the Tribunal hearing.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether, at the time of application on 14 December 2016, the review applicant and the visa applicant were in a genuine de facto relationship for the purposes of the Act.
In deciding this matter, the Tribunal has also had regard to evidence of events subsequent to the date of the visa application.
Background
The parties claim that they met in the Phillipines when the sponsor was on holidays. The parties remained in touch and the sponsor returned to the Philippines and the parties began a relationship and lived together in the Philippines.
The parties moved to Australia in December 2011 but returned to the Philippines after three months. The sponsor returned to Australia when his father became ill in 2013 and stayed. The sponsor’s father died in 2014. The applicant moved to Australia in 2014.
The applicant returned to the Philippines in 2015 for 10 months when her grandmother died. The sponsor remained in Australia.
The parties had businesses in the Philippines, a fishing business in Siquijor, managed by the applicant’s family, and a massage parlour in Manila. The parties sold the businesses in the Philippines and, in Australia, the applicant doesn’t work and contributes to the household by taking care of the sponsor’s elderly mother. The sponsor is a truck driver but is also on Centrelink benefits.
Whether the parties are in a spouse or de facto relationship
Clauses 820.211 and 820.221 require that at the time the visa application was made, and at the time of this decision, the applicant is the spouse or de facto partner of an Australian citizen or Australian permanent resident or an eligible New Zealand citizen. In the present case the applicant claims to be the de facto partner of the sponsor who is an Australian citizen. A copy of the sponsor’s passport is on the Department’s file.
Are the parties in a de facto relationship?
'De facto partner' is defined in 5CB of the Act, which 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 whether they 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 reg 1.09A(3) which is attached to this decision. Each of the specific matters contained in reg 1.09A(3) is effectively a question which must be answered: He v MIBP [2017] FCAFC 206.
The financial aspects of the relationship
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.
There is no evidence before the Tribunal that the parties jointly own real estate or that one person in the relationship owes any legal obligation in respect of the other. The parties stated that they live with the sponsor’s mother, who owns the home. They do not pay rent.
The parties told the Tribunal hearing that, in 2014, they had a shared investment in a fishing boat, the management and fishing being undertaken mainly by the applicant’s family. The business is no longer operational. They also had shared financial interest in a spa and massage parlour. This business was sold.
In evidence to the Tribunal hearing the parties stated that they received a $7,000 funds transfer in 2013 to cover loans undertaken when they were living in the Philippines. The applicant told the hearing that the loan was to cover general cost-of-living expenses as well as rent that was owed to the building owner. The sponsor told the hearing the funds were to “pay off some loans that we had” in the Philippines; “loans for boats”. He also told the hearing the funds were to help pay for renovations on the applicant’s mother’s house, medical expenses, and other debts.
The sponsor told the hearing that the parties started a massage business together in 2009 that “went OK for a while”. The applicant told the hearing the parties did not “make money out of selling the business” and this was at the time they received the $7,000 funds to cover loans.
The parties provided a bank letter dated 2 November 2022 stating that the parties had opened a joint bank account on 8 September 2016. No evidence was provided regarding deposits and withdrawals from the account. When asked why they had a joint account, the applicant told the Tribunal hearing on 31 January 2023 that it had been established “because we need to prove we are together”. A bank account that does not demonstrate household expenditure and is only established to address a perceived requirement of the Tribunal is not evidence that parties share household expenses and the Tribunal gives the letter from the bank little weight.
The parties provided copies of bank statements in the sponsor’s name showing a range of deposits and expenditures. The applicant told the hearing that the regular deposits by a person named Andonios Stathopoulos are payments for work undertaken. The sponsor also confirmed that he continued to receive JobSeeker payments at the same time as receiving the deposits for his work. He stated that the JobSeeker payments finished in February 2023. The Tribunal notes that it has not received the bank statement for March 2023.
In independent and consistent evidence to the Tribunal hearing, the parties stated that they share expenses for socialising, and for the household and the sponsor’s mother provides financial assistance. The Tribunal gives some weight to this evidence.
On 28 March 2023, immediately before the hearing on that day, the parties provided documents showing that they had set up a new business in December 2022. The sponsor told the hearing that the new business was set up in the applicant’s name and that he would work for a salary. When asked about this arrangement, the sponsor stated that the business was established “for tax reasons”. There is no evidence of salary deposits into the sponsor’s bank account from the new business.
The Tribunal notes the limited evidence provided to the Department at the time of application and gives this little weight. The Tribunal gives some weight to the statements provided to the hearings as evidence that the parties pool their resources and share responsibility for household expenses.
Nature of the household
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.
There is no evidence before the Tribunal that the applicant and the sponsor have or had any children together. The sponsor has two children from a previous marriage.
The parties told the hearing that they had met in 2008 in the Philippines, the sponsor had returned to Australia, and the parties had remained in touch. The sponsor returned to the Philippines in 2009 and the parties stated that they moved in together.
They both travelled to Australia in December 2011 and returned to the Philippines three months later. The sponsor returned to Australia in 2013 when his father was ill. The applicant came to Australia in 2014.
The parties told the Tribunal hearing that they live with the sponsor’s mother in a three-bedroom house. The sponsor works as a truck driver and the applicant takes care of the home and the sponsor’s mother. The applicant stated that she sometimes attends the sponsor’s work and travels with him in his truck.
When asked to describe the house they live in, the parties independently and consistently described the three-bedroom, two-bathroom home that they share with the sponsor’s mother. However, the Tribunal notes that, in his description of the main bedroom, the sponsor initially described it as “my bedroom” but corrected himself and called it “our bedroom”. When asked about the discrepancy, the sponsor told the hearing that it had once been his own bedroom, hence the mistake. The Tribunal accepts this explanation.
The applicant, in describing the house, stated at the 31 January 2023 hearing that the sponsor’s son sometimes stays with them in the back bedroom. The sponsor’s son, Mr Dimitrios Salahoris, attended the 28 March 2023 hearing and told the Tribunal that he lives at the house with the parties and the sponsor’s mother. When asked about the discrepancy in the evidence, the sponsor’s son stated, “well I live there”. No further explanation was provided.
The parties told the 31 January 2023 hearing that the sponsor’s mother does most of the household cooking, but is doing less as she ages, and they mostly eat takeout food. The applicant told the hearing that she would occasionally cook, but the sponsor and his mother, who are of Greek heritage, don’t like Filipino food.
The Tribunal notes the limited evidence provided to the Department at the time of application and gives little weight to the limited evidence.
The Tribunal notes the evidence provided at the Tribunal hearing and gives this evidence some weight as demonstrating the parties maintain a joint household, with the applicant mainly taking care of housework.
The social aspects of the relationship
Whether the persons represent themselves to other people as being in a de facto relationship, 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.
The Tribunal notes that no evidence was provided to the Department at the time of application that showed the parties present themselves as a couple socially. The parties provided to the Tribunal a hand-written statement dated 6 November 2022 by Ms Irene Imperial, a friend of the parties. In this statement, Ms Imperial stated that she often had coffee or lunch with the parties and visited the parties at their home.
The parties also provided a hand-written note dated 5 November 2022 from Mr Michael Pagoulatos who states that he has known the parties for 30 months and he believes “to the best of my knowledge” that the parties are in a genuine relationship.
The hand-written notes by Ms Imperial and Mr Pagoulatos are general in nature and the Tribunal gives these statements little weight.
The parties provided a statement dated 5 November 2022 written by the sponsor on behalf of his mother who does not read or write in English. The sponsor told the hearing that he had written the statement and read it to his mother in Greek. The signature on the statement is claimed to be that of the sponsor’s mother, Diamanto Salahoris. In this statement Ms Salahoris stated that the parties have lived in her house since 2013 and she does not charge them rent. She stated that the parties cook and clean for her and purchase groceries on her behalf. The Tribunal notes that the statement is general in nature and that it is difficult to verify, and the Tribunal gives the statement by the sponsor’s mother little weight.
When describing their social activities, the applicant told the hearing that the parties rarely go out, sometimes go out for dinner, and sometimes have a barbeque at home with the sponsor’s brother and sister-in-law.
The sponsor told the Tribunal that the parties have few friends, and for most of their social events they sit in the back yard and drink coffee. He stated that they sometimes go to a hotel for a meal or to the casino. The Tribunal notes that, while not contradictory, the evidence is general in nature and gives it little weight.
The Tribunal notes that, for the 28 March 2023 hearing, three witnesses attended to speak on behalf of the parties.
a.Mr Dimitrios Salahoris told the hearing that, as mentioned above, he lives with the parties and said of the applicant, “she does live with us”. When asked why he thought the parties would travel alone to the Philippines, Mr Salahoris said that he did not know. The evidence from Mr Dimitrios Salahoris was limited and the Tribunal is unsure why he was presented as a witness and gives his evidence little weight.
b.Mr Mario Christodoulou told that hearing that he had known the sponsor for more than 20 years and he had met the applicant when he had visited the sponsor in the Philippines. Mr Christodoulou stated that the sponsor had travelled to the Philippines with him, and without the applicant, in 2019 to accompany him when he had dental work undertaken there. He stated that he had not seen the parties very often recently because of his shiftwork, but he stated that they are very happy together as a couple. The Tribunal gives the evidence from Mr Chrisodoulou some weight.
c.Ms Linda Loukas told the hearing that she had known the sponsor for approximately 25 years. When asked why the parties would travel to the Philippines without each other, Ms Loukas stated that they each had friends there and one of them would remain in Australia to care for the sponsor’s elderly mother. Ms Loukas also stated that the parties are happy together, that the applicant helps the sponsor’s mother and, when the sponsor’s father was alive, he “had a soft spot” for the applicant. The Tribunal gives great weight to the evidence from Ms Loukas.
The Tribunal notes the limited evidence provided to the Department regarding the social aspects of the relationship and gives this little weight.
The Tribunal notes the evidence provided to the hearing by the parties that they socialise with only a small group of friends and relatives and gives this evidence some weight.
The Tribunal gives great weight to the evidence from Mr Christodoulou and Ms Loukas that the parties present themselves as being in a genuine de facto relationship.
On balance, the Tribunal is satisfied that the parties represent themselves to other people as being in a de facto relationship and, the parties’ friends and acquaintances see them as being in a genuine de facto relationship.
The nature of the persons’ commitment to each other
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.
The Tribunal notes that the parties claim that they met in 2008 and decided to live together in 2009. The applicant told the Tribunal hearing that the parties met through her massage business in the Philippines.
The parties provided little evidence in regard to how they support each other emotionally. When commenting on their plans for the future, the applicant told the 31 January 2023 hearing that they “might get married” one day, but she did not say they had any plans, and the sponsor told the hearing he planned to keep working for the next three years and then start travelling again.
The applicant stated to the hearing that the sponsor had returned several times to the Philippines on his own. The Tribunal notes that sponsor had spent some years visiting and living in the Philippines before he met the applicant. He told the hearing that he has several friends there. He stated that the applicant couldn’t travel with him because she needed to stay in Melbourne to take care of his mother.
The Tribunal notes the evidence provided by Ms Loukas at the 28 March 2023 hearing that the parties, together, take care of the sponsor’s mother.
The Tribunal also notes the statement by the sponsor at the 28 March 2023 hearing that waiting for a visa decision is “getting tiring”, that the parties have been together for many years and are happy together. The sponsor told the hearing that he wants the parties to be able to focus on looking after his mother through her “last days”.
The Tribunal notes the limited evidence provided at the time of application regarding the persons’ commitment to each other and gives this little weight.
The Tribunal notes the statements provided to the 28 March 2023 hearing by the sponsor and Ms Loukas regarding the parties’ commitment to each other and gives these some weight.
Are the additional criteria for a de facto relationship met?
Persons claiming to be in a de facto relationship for a partner visa must also meet the additional criteria in reg 2.03A. Both members of the couple must be at least 18 years old: reg 2.03A(2). In this case, at the time of application, the applicant and the sponsor were at least 18 years old.

The applicant must have been in the de facto relationship for at least the 12-month period ending immediately before the date of the application: reg 2.03A(3). This requirement will not apply in limited circumstances, such as: where the de facto relationship has been registered under a relevant State or Territory law (for applications made on or after 9 November 2009); where the applicant can establish compelling and compassionate circumstances for the grant of the visa; or in certain circumstances where the sponsor held, holds or is applying for a permanent humanitarian visa.
Given all the information provided to it, the Tribunal is satisfied that the applicant meets reg 2.03A.
Non-disclosure certificate
The Department provided to the Tribunal a non-disclosure certificate dated 4 March 2021 pursuant to s 376 of the Act. The certificate stated that the folio contains an anonymous allegation, that the information was provided in confidence to the Minister, or to an officer of the Department and that disclosure would be contrary to public interest. The certificate was signed and dated, as required by El Jejieh v Minister for Home Affairs (No 2) [2019] FCCA 840. Having reviewed the certificate and the material sought to be protected from disclosure, the Tribunal finds that the certificate was validly made.
The information covered in the s 376 certificate states that the parties are no longer in a genuine relationship, that the applicant is a prostitute, that the applicant has a court case against her over a property dispute, that the applicant “knows a lot of bad people” in the Philippines and is a “serious threat” and that the applicant had owned a massage parlour and brothel in Australia. The source of the information wished to remain anonymous.
At the hearing on 31 January 2023, the applicant was given a redacted copy of the certificate and provided an opportunity to comment on each of the claims. Under the requirements of s 359AA the Tribunal questioned the applicant and the sponsor about the information contained in the certificate. The parties stated that the property dispute had been settled in court and they stated that the other statements in the certificate were untrue.
On balance, given the statements provided by the parties to the Tribunal hearing and given the source of the information wished to remain anonymous, the Tribunal places little weight on the certificate.
Conclusion
As stated above, the Tribunal is satisfied that, at the time of application and at the time of this decision the parties were and are in a valid de facto relationship as required by s 5CB of the Act.
After considering all the evidence before it and for the reasons given with respect to the reg 1.09A(3) matters, the Tribunal is satisfied that, at the time of application on 13 July 2017, and at the time of this decision the parties:
·had and have a mutual commitment to a shared life as de facto partners to the exclusion of all others, as required by s 5CB(2)(a) of the Act;
·had and have a genuine and continuing relationship, as required by s 5CB(2)(b) of the Act;
·live and lived together as required by s 5CB(2)(c) of the Act; and
·are not related by family, as required by s 5CB(2)(d) of the Act.
On the basis of the above the Tribunal is satisfied that the requirements of s 5F(2) are met at the time of application and at the time of this decision.
Given these findings, the Tribunal is satisfied that, at the time of the visa application and at the time of this decision, the parties were and are in a de facto relationship, therefore, the applicant meets cls 820.211 and 820.221.
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 820 visa.
DECISION
The Tribunal remits the application for a Partner (Temporary) (Class UK) visa, with the   direction that the visa applicant meets the following criteria for a Subclass 820 (Partner (Provisional)) visa:
·cl 820.211 of Schedule 2 to the Regulations
·cl 820.221 of Schedule 2 to the Regulations
·r 2.03A
Cheryl Cartwright
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).

[2023] AATA 882

29 March 2023

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