Madrigal Urrea (Migration)

[2019] AATA 6385

Madrigal Urrea (Migration) [2019] AATA 6385 (4 November 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Cristina Isabel Madrigal Urrea

CASE NUMBER:  1804761

DIBP REFERENCE(S):  BCC2015/4028453

MEMBER:Nicholas McGowan

DATE:4 November 2019

PLACE OF DECISION:  Melbourne

DECISION:This tribunal remits the application for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 820 visa:

·     cl.820.211(2) of Schedule 2 to the Regulations; and

·     r.2.03A

Statement made 4 November 2019 at 7:47am

CATCHWORDS

MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – de facto relationship – living together as de facto partners 12 months – relationship certificate – age requirement – decision under review remitted          

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 820.211, 820.221; r 2.03

STATEMENT OF DECISION AND REASONS

1. On 23 December 2015 the applicant applied for a Partner (Temporary) (Class UK) Subclass 820 visa.

2. On 19 February 2018 a delegate of the Minister for Immigration refused to grant the applicant the partner visa under s.65 of the Migration Act 1958 (the Act).

3. This is a review of the above refusal decision.

   ISSUE

4. As the applicant has applied for the temporary partner visa on the basis the applicant is in a de facto relationship, the applicant must satisfy a decision maker that she and her sponsor were living together as de facto partners 12 months prior to the lodgement of partner visa application.

   RELEVANT LAW

5. Persons claiming to be in a de facto relationship for a partner visa must also meet the additional criteria in r.2.03A. These are: that the couple are both at least 18 years of age; and with limited exceptions, that the visa applicant has been in the de facto relationship for the 12 months immediately preceding the date of the application, unless he or she can establish compelling and compassionate circumstances for the grant of the visa. The requirement that the relationship existed for 12 months prior to the application does not apply in certain circumstances where the sponsor is or was a humanitarian visa holder, or for applications made on or after 9 November 2009, where the de facto relationship has been registered under a relevant State or Territory law.

   CONSIDERATION OF CLAIMS, EVIDENCE AND FINDINGS

6. The applicant has provided this tribunal with a relationship certificate (number 2572/2018) registered in the State of Victoria (contained at folio 30 of this tribunal’s file number 1804761). In light of this new evidence, this tribunal is satisfied that Regulation (2.03A) has now been met because the provision of such a ‘certificate’ gives rise to Regulation 2.03A (5) as the parties’ de facto relationship has been recognised under an Australian State law as prescribed in the Acts Interpretation (Registered Relationship) Regulations 2008.

7. As this tribunal has found the applicant now satisfies Regulation 2.03A (5) for the purposes of Regulation 2.03A(3); and, the parties were both over 18 years of age at the time of application on 23 December 2015; the applicant has satisfied this tribunal she now meets the requirements specified in Regulation 2.03A for the purposes of clause 820.211(2).

8. Further, this tribunal is satisfied, having considered the circumstances set out under the Act and regulations, that the applicant was at the time of the temporary partner visa application, the de facto partner of her sponsor who is an Australian permanent resident (as evidenced by his declaration at folio 1 of Department of Immigration file number BCC2015/4028453).

9. Given the above, this tribunal is satisfied that at the time of application the applicant met the requirements of clause 820.211(2) for the purposes of her partner visa application.

10. It follows that under these circumstances the appropriate course is to remit the applicant’s temporary partner visa application to the Immigration Minister to be considered further.

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