Makina (Migration)

[2021] AATA 3001

Makina (Migration) [2021] AATA 3001 (24 June 2021)

DECISION RECORD

DIVISION:  Migration & Refugee Division

APPLICANT:  Mr Patrick Makina

CASE NUMBER:  1901225

DIBP REFERENCE(S):  BCC2017/4321179

MEMBER:  Joseph Francis

DATE AND TIME OF

ORAL DECISION AND REASONS:          24 June 2021 at 12:36 pm (WA time)

DATE OF WRITTEN RECORD:                15 July 2021

PLACE OF DECISION:  Perth

DECISION:The Tribunal remits the application for a Partner Temporary Class UK Subclass 820 visa under section 65 of the Migration Act with the direction that the applicant meets the following criteria:

·cl 820.211.

Statement made on 15 July 2021 at 10:19am

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Spouse) – genuine and ongoing relationship – applicant’s child with another partner during temporary breakdown of relationship with sponsor – financial, household and social aspects of relationship – nature of commitment – application made significantly more than 28 days after last substantive visa held – waiver of criteria – strong relationship with and best interests of Australian citizen child – support for sponsor’s children – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5CB, 65
Migration Regulations 1994 (Cth), Schedule 2, cl 820.211(2), Schedule 3

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 11 January 2019 to refuse to grant the visa applicant a Partner (Temporary) (Class UK) Subclass 820 visa under the Migration Act 1958 (the Act).

1. At the hearing on 24 June 2021 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

STATEMENT OF DECISION AND REASONS

1. Mr Makina applied for the Class UK visa on 16 November 2017 based on his relationship with Australian citizen sponsor Ms Paige Renee Sharland, who lodged a sponsorship form in support of his application.

1. The delegate assessed the application under subclause 2 of clause 820.211. As the parties claimed to be in a de facto relationship the delegate considered the matter under section 5C(b) for de factor couples. The delegate did not consider there was sufficient information to demonstrate the parties were in a genuine de facto relationship as defined under the Migration Act.

1. Further, Mr Makina was not the holder of a substantive visa within the 28 day period prior to the visa application being lodged as required by schedule 3.

1. The Tribunal held two hearings into the matter. The first hearing was held on 11 March 2021 and both Mr Makina and his sponsor Ms Sharland attended the Tribunal and gave evidence in person.

1. The Tribunal held a second hearing today, 24 June 2021, and both Mr Makina and Ms Sharland again attended the hearing in person. Additionally, during this hearing on 24 June 2021, the Tribunal requested Ms Christlin Hamilton appear by telephone in order to provide evidence. Ms Hamilton accepted the call and provided evidence as a witness.

1. The applicant, Mr Makina, was represented during both hearings by a registered migration agent Mr Don Goh who attended in person on both occasions.

1. The Tribunal had before it a copy of the department’s file containing the original visa application and the documentary evidence referred to by the delegate.

1. Mr Makina provided the Tribunal a copy of the delegate’s decision record with his application for review. A history of the visa application can be summarised from the delegate’s decision record and the department’s file.

1. Mr Makina first arrived in Australia in February 2003, as the holder of a TU Student visa. It is understood this visa ceased in 2005, at which time Mr Makina remained in Australia as an unlawful non-citizen up until the lodgement of the visa application on 16 November 2017, which is the subject of this review. That period is some 12 years.

1. The visa applicant and sponsor first met in August 2013 at a party hosted through a mutual friend. The parties commenced their relationship and first resided together not long after starting their relationship in September 2013.

1. In September 2014, the relationship broke down for approximately three months before the parties reconciled and again commenced living together as a de facto couple. During the time that the relationship had stalled, Mr Makina travelled to Queensland, where he had met another Australian citizen Ms Christlin Hamilton.

1. Mr Makina and Ms Hamilton conceived a child during this period who was born on 10 July 2015 and Mr Makina is named on the birth certificate as the child’s father. The Tribunal accepts the evidence that Mr Makina is the father of an Australian citizen child - now aged six years - at the time of this decision.

1. During the hearing on 11 March 2021, the Tribunal received oral evidence from the visa applicant, Mr Makina. Whilst he was separated in a different room from the sponsor, the Tribunal considered the evidence from the visa applicant and sponsor separately in determining the genuine nature of the de facto relationship.

1. During the hearing, the Tribunal undertook an extensive examination and heard evidence from both of the parties, as mentioned separately, and assessed this matter with regards to the financial aspects of the relationship contained in 5CB with the following findings:

Financial aspects of the relationship

1. The parties have a thorough understanding of each other’s income, expenses, and overall financial situation. The parties share expenses through a joint bank account and they demonstrated a thorough understanding of each other’s work, income, rates, liabilities, and expenses. The Tribunal places weight on the financial aspects of the relationship.

Nature of the Household

1. The parties have known each other for nearly eight years at the time of this decision and claim to have been in a genuine de facto relationship for almost all of that time with the exception of the period when Mr Makina conceived a child in Queensland (approximately three months). In total, they have spent approximately seven years and six months living together in Australia. They currently reside together and have done so therefore since 2015, now as a de facto couple and live with the two elder children of the sponsor that she has from a previous relationship. The Tribunal accepts that Mr Makina makes a substantial contribution in assisting with the raising of these two children.

1. The Tribunal undertook extensive questions with regards to the party’s living arrangements, daily routines, and household chores. With consideration of their evidence I am satisfied the parties have demonstrated that they remain living together as a de facto couple at the time of this decision. The Tribunal considered written evidence submitted from other parties, including the sponsor’s mother and photographs indicating the applicant and sponsor in various scenarios, and in particular the evidence of the role Mr Makina plays in raising his own Australian citizen child. The Tribunal finds that the parties portray themselves to friends and acquaintances as a genuine de facto couple and places weight on this aspect of the relationship.

Social aspects of the relationship

1. The Tribunal accepts the evidence from other parties that was submitted that the relationship is genuine and ongoing. The parties have demonstrated a thorough knowledge of each other’s extended family and living situations. The Tribunal places weight on the evidence in support of the social aspects of the relationship.

Nature of the person’s commitment to each other

1. The Tribunal finds the nature of the commitment to each other is significant with particular note to the amount of time they have now resided together. I am satisfied that both the visa applicant and the sponsor see their relationship as long-term. The Tribunal finds the parties provide support for each both financially and emotionally and notes their future plans together.

1. Therefore I am satisfied that the visa applicant and sponsor remain in a genuine de facto relationship as defined by section 5C(b) for de facto couples.

Schedule 3 requirements

1. The Tribunal notes the significant period Mr Makina remained in Australia as an unlawful non-citizen for some 12 years.

1. The requests to consider a waiver for the schedule 3 requirement for such an extended period of time is not a matter to be considered lightly and the Tribunal spent a significant amount of time in examining the request and balancing the expectations of schedule 3 against the impact it would have on any Australian citizens if a waiver was not to be granted.

1. The Tribunal heard evidence and submissions from the visa’s sponsor as to the contribution Mr Makina makes in providing emotional and financial support to herself and her children as outlined previously.

1. The Tribunal notes that a genuine relationship in itself does not provide compelling reasons not to apply the schedule 3 criteria because a genuine relationship forms the basis of all valid Partner visa applications regardless, nor does the hardship caused by separation if an applicant is required to depart and apply again for a visa from offshore, where partners may be separated for extended periods of time during the visa processing.

1. The Tribunal therefore considered deeply the role Mr Makina takes in raising of his Australian citizen child now aged six years.

1. In a written statement to the Tribunal dated 15 March 2021, Mr Makina claimed that the mother of his Australian citizen child would be moving from Queensland to Perth, as he still maintained a positive relationship with her and they believed he could better provide support for his child if they were to reside in Western Australia.

1. The Tribunal therefore held a second hearing on 24 June 2021 in order to further consider a claim made in this statement.

1. Although Mr Makina did not offer Ms Hamilton, the mother of his child, as a witness to the Tribunal, the Tribunal requested at the hearing that Mr Makina consider calling Ms Hamilton and asking if she would be willing to provide evidence to the Tribunal without notice.

1. Ms Hamilton agreed. The Tribunal therefore called her, and Ms Hamilton provided sworn evidence to the Tribunal - noting she received no notice that such a request would be made.

1. Ms Hamilton provided candid and compelling evidence supporting the claim that Mr Makina had made, notably that, she had relocated from Queensland to Western Australia in 2021, with Mr Makina’s Australian citizen child, and in fact she had planned in doing so earlier but was unable to move to Western Australia due to COVID restrictions.

1. Additionally, Ms Hamilton claimed Mr Makina had developed a strong bond with his young son and plays a significant role in caring for and raising him, and that he takes custody for periods sometimes of four days and also provides a stable father-figure in his son’s life.

2. Ms Hamilton provided evidence that he provides financial support above the required child support payments, and that should Mr Makina not be granted a visa and would therefore be required to depart Australia and reapply for a visa offshore, it would have a devastating impact on both her and her son’s mental health.

1. The Tribunal found Ms Christlin Hamilton to be a credible witness and places weight on her evidence.

1. The Tribunal also finds that such an option would no doubt have a detrimental impact on the health and wellbeing of the visa sponsor, Ms Sharland, given her evidence and also given the care Mr Makina also provides to herself and her children.

1. The Tribunal found Ms Sharland to be a credible witness and places weight on her evidence.

1. The Tribunal found Mr Makina to be a credible witness. Additionally, Mr Makina was remorseful about the circumstances of his extended unlawful stay which resulted in the schedule 3 issue being considered by the Tribunal.

1. With consideration to the history of the relationship as a whole, the circumstances of the matter, and responsibility Mr Makina has demonstrated with regard to parenting of his Australian citizen child, I am satisfied that a waiver of the schedule 3 requirements is justified and compelling reasons exist for not applying the criteria.

1. The Tribunal is satisfied that the requirements of section 5CB are therefore met at the time the application was made and at the time of this decision. There is no evidence that the sponsor, Ms Sharland, is prohibited under subclause 2B from being a sponsoring partner and the applicant at the time of this decision I am satisfied Mr Makina has met clause

   820.211 of the regulations.

1. I am satisfied Mr Makina remains the spouse of the sponsor as defined under section 5CB of the Migration Act. Given the findings the appropriate course of action is to remit the application.

DECISION

1. I am remitting this matter to be returned to the Minister for reconsideration, it be returned to consider the remaining criteria for a Subclass 820 visa. The decision is the Tribunal remits the application for a Partner Temporary Class UK Subclass 820 visa. Under section 65 of the Migration Act, Mr Patrick Makina with the direction that the applicant meets the following criteria clause 820.211.

Joseph Francis Member