Manalo (Migration)

[2024] AATA 1927

Manalo (Migration) [2024] AATA 1927 (13 June 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Abegail Emprese Manalo

REPRESENTATIVE:  Mrs Marimi Tanag (MARN: 1386887)

CASE NUMBER:  2109516

HOME AFFAIRS REFERENCE(S):          BCC2019/6945395

MEMBER:Donna Petrovich

DATE:13 June 2024

PLACE OF DECISION:  Melbourne

DECISION:The 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)(c) of Schedule 2 to the Regulations

·cl 820.211(2) of Schedule 2 to the Regulations

Statement made on 13 June 2024 at 1:51pm

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Spouse) – sponsorship form and other requested material not provided to department – unfamiliarity with visa process, no agent or legal assistance and IMMI account shut down – COVID restrictions and access issues – prehearing, oral and witness evidence – supporting documentation and sponsorship form provided to tribunal – departmental policy – sponsorship form need not be lodged at time of application – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 820.211(2)(c)

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. 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 31 December 2019. The delegate refused to grant the visa on 7 July 2021.

2. The delegate decided to refuse the visa application based on the failure by the applicant and proposed sponsor to provide requested material to the Department. 

3. The delegate’s decision details that the Department wrote to the applicant on 15 February 2021 requesting supporting material including the Sponsorship for a Partner to Migrate to Australia online form to evidence that they were sponsored by the partner to migrate to Australia within 28 days.  The material requested was not supplied to the Department. 

4. On 13 May 2021 the Department telephoned the proposed sponsor, Mr Kevin Charles Payne to request the material, but according to the delegate’s decision there was no answer. 

5. On 13 May 2021 the Department then emailed the applicant again requesting the sponsorship form as well as further information, be provided within 28 days.  However, at the time of the delegate’s decision the applicant and proposed sponsor had not provided the material requested by the Department.

6. As the delegate was not satisfied that the applicant was sponsored by their claimed partner, it was decided that cl 820.211(2)(c) and hence cl 820.211 of the Regulations was not met. 

   Background

7. The applicant was separated from her husband and working in Kuwait as a Nurses Aid in a hospital between 2012 and 2016.  Her Husband is now living in Canada.  As there is no provision for divorce in the Philippines the applicant remains married to him.  Although this is not by choice.

8. The applicant and sponsor were introduced by the applicant’s friend.  The applicant has known this friend since her childhood in the Philippines.  The applicant’s childhood friend is now married to an Australian man who is a close friend of the sponsor.

9. At the time of the couple’s meeting, the sponsor was divorced from his wife and had retired to the family farm in Maryborough in central Victoria.

10. The couple began speaking through Viber.  They maintained contact, speaking daily when the applicant finished work.

11. On 19 November 2015 the couple met in the Philippines where they stayed in a hotel together.  Whilst the sponsor was in the Philippines for 15 days the couple spent time together shopping and visiting relatives.

12. The sponsor then returned to Australia, whilst the applicant returned to Kuwait to complete her work contract.

13. The applicant visited Australia on two occasions spending time with the sponsor at his home. Department movement records show that the applicant arrived in Australia on 9 June 2018 and 17 November 2018.  She again arrived in Australia on 4 March 2019 and 9 November 2019. 

14. On 20 December 2019 the couple lodged the application for a Partner visa. 

15. The applicant and sponsor both explained that they did not receive the correspondence from the Department in relation to the sponsorship form.  The admitted that they were unfamiliar with the visa process.  Nor did they have a migration agent or legal assistance when submitting their application for a Partner visa. 

16. The couple claim that they tried unsuccessfully to submit the required material to the Department.  The applicant claims that their IMMI account was shut down.   She also claims that the Covid 19 pandemic and access issues in Victoria in particular, made it impossible for them to progress their application.

17. The couple have remained together continuously since December 2019.  They have been a couple since 2015.

18. Witness evidence at the hearing confirmed the nature of the couple’s relationship. 

19. Further, the representative under cover of an email dated 6 June 2024 has provided the Tribunal with a copy of a Sponsorship for a partner to migrate to Australia form in support of the review.  

20. The form 40SP – Sponsorship for a partner to Migrate to Australia is signed and dated 23 May 2024 by both the applicant and sponsor.  The form details that they are a de facto couple and that their relationship started on 19 November 2015.  The sponsor is recorded a Kevin Charles Payne, an Australian citizen by birth who seeks to sponsor his partner, Abegail Emprese Manalo (the applicant in this review).

21. The prehearing evidence and oral testimony provided at the hearing satisfies the Tribunal that the couple are in a genuine, ongoing relationship, and that Mr Kevin Charles Payne is the applicant’s sponsor for the Partner visa.  

22. The applicant appeared before the Tribunal on 12 June 2024 to give evidence and present arguments.

23. Prior to the hearing the Tribunal received the material supporting the review including the following: 

    ·     Commonwealth bank statements in the couple’s joint names for the period 1 July 2023 to 31 December 2023;

    ·     Commonwealth bank statements in the couple’s joint names for the period 1 January 2023 to 30 June 2023;

    ·     Commonwealth bank statement in the couple’s joint names showing transactions from 3 January 2024 to 22 May 2024;

    ·     Commonwealth bank statement in the couple’s joint names for the period 1 January 2022 to 30 June 2022;

    ·     Commonwealth bank statement in the couple’s joint names for the period 1 July 2021 to 31 December 2021;

    ·     Commonwealth bank statement in the couple’s joint names for the period 1 January 2020 to 30 June 2020; 

    ·     A Tax receipt in the applicant’s name dated 22 August 2022;

    ·     The applicant’s Notice of assessment – year ended 30 June 2022;

    ·     A Tax receipt in the applicant’s name dated 13 September 2023;

    ·     The applicant’s Notice of assessment – year ended 30 June 2023;

    ·     Hard Rubbish & Trans Station Waste Vouchers for 2023/2024;

    ·     A Valuation Rate & Charge Notice addressed to the sponsor;

    ·     AmbulanceVictoria membership renewal addressed to the sponsor due 19 March 2023, recording the applicant as a family member;

    ·     A collection of photographs of the couple;

    ·     Money transfers from the sponsor to the applicant in the Philippines for the period 2016 to 2019;

    ·     Telephone accounts in the couple’s joint names proving their address;

    ·     Department of Justice and Community Safety letter addressed to the applicant enclosing Victorian Proof of Age Card;

    ·     Cervical screen documentation addressed to the applicant dated 10 May 2021;

    ·     Superannuation document addressed to the applicant proving her address;

    ·     Vicroads correspondence addressed to the applicant;

    ·     Medicare interim card correspondence addressed to the applicant.

24. The representative has provided the Tribunal with the form 40SP sponsor form under cover of an email dated 6 June 2024. 

25. In forming a decision in favour of the applicant the Tribunal relies on the relevant policy in the PAMS. The relevant part of the PAMS extracted below verbatim reads:

    3.2.11. Sponsorship for a Partner to Migrate to Australia

    An application for a Subclass 820 visa can be made without an accompanying sponsorship form completed by the sponsor, unless the applicant is a person to whom section 48 of the Act applies. As an application for a Subclass 820 visa must be made at the same time and place as an application for a Subclass 801 visa, if an applicant is a person to whom section 48 of the Act applies, additional requirements to make a valid Subclass 801 visa application must be met. This includes a completed sponsorship form signed by the applicant’s sponsoring spouse or de facto partner (see subparagraph 1124B(3)(e)(ii)).

26. Consequently, the Tribunal finds that cl 820.211(2)(c) of the Regulations is satisfied by the applicant at the time of visa application. 

27. It is apparent from the supporting evidence that Kevin Charles Payne at the time of application was the Australian citizen sponsor of the applicant.  As per the PAMS, the form 40SP – Sponsorship for a partner to Migrate to Australia need not be lodged at the time of application in order for cl 820.211(2)( c) of the Regulations to be satisfied by the applicant.

28. The Tribunal finds that the applicant, at the time of application, was sponsored by the de facto partner, Mr Kevin Charles Payne as required by cl 820.211(2)(c ) of the Regulations even in the absence of the requested form 40SP – Sponsorship for a partner to Migrate to Australia .

29. Given the new evidence received the Tribunal is satisfied that the criterion are met and has concluded that the matter should be remitted for reconsideration.

    DECISION

30. The 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)(c) of Schedule 2 to the Regulations;

    ·cl 820.211(2) of Schedule 2 to the Regulations

    Donna Petrovich
    Member