Mansueto (Migration)

[2019] AATA 4321

Mansueto (Migration) [2019] AATA 4321 (9 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Marita Caputol Mansueto

CASE NUMBER:  1701229

HOME AFFAIRS REFERENCE(S):           BCC2015/1176994

MEMBER:Scott Clarey

DATE:9 July 2019

PLACE OF DECISION:  Melbourne

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 (Temporary)) visa:

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

·cl.820.221(1) of Schedule 2 to the Regulations.

Statement made on 09 July 2019 at 9:50am

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Spouse) – genuine and ongoing spousal relationship – joint bank account – shared household responsibilities – parties represent themselves as being married to each other – joint social activities – significant emotional support and companionship – marriage certificate provided – mutual commitment to shared life to exclusion of all others – consistent evidence – credible witnesses – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5, 65
Migration Regulations 1994 (Cth), r 1.15A(3), Schedule 2, cls 820.211, 820.221(1)

CASES
He v MIBP [2017] FCAFC 206

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 Immigration and Border Protection to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 21 April 2015 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 (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.

3. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.820.211 because the delegate was not satisfied that the applicant is the spouse or de facto partner of the sponsor.

4. The applicant appeared before the Tribunal on 8 July 2019 via video link from Brisbane to give evidence and present arguments. The Tribunal also received oral evidence from Mr William Marshall Langston (the applicant’s husband and sponsor) and Ms Jeanette Marilyn Postle (a friend of the family). The Tribunal hearing was conducted with the assistance of an interpreter in the Tagalog and English languages.

5. The applicant (Mrs Marita Caputol Mansueto) was represented in relation to the review by her registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is whether the visa applicant (Mrs Mansueto) is the de facto partner or spouse of the sponsor (Mr Langston).

   Relevant background

8. Mrs Mansueto is a 42-year-old Philippine national who was born in Leyte, the Philippines. Mr Langston is a 78-year-old Australian citizen by birth. The Tribunal accepts that Mrs Mansueto has not been previously married but has a 21-year-old daughter who lives in the Philippines. The Tribunal accepts that Mr Langston was previously married and this marriage ended when his wife passed away. There are three adult children from this relationship. The Tribunal accepts that Mrs Mansueto and Mr Langston first became acquainted in October 2014 through a mutual friend who lives in Australia, and first met when Mr Langston travelled to visit Mrs Mansueto in the Philippines in December that year. The Tribunal accepts that the couple became engaged in January 2015 in the Philippines, travelled back to Australia together in February 2015 and were married in April 2015 in Queensland. The Tribunal accepts that the couple have been residing together in Australia since February 2015.

   Whether the parties are in a spouse or de facto relationship

9. Clauses 820.211(2)(a) and 820.221 require that at the time the visa application was made, and at the time of this decision, Mrs Mansueto 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 Mrs Mansueto claims to be the spouse of Mr Langston who, according to Departmental records, is an Australian citizen by birth.

10. ‘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). 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), 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.

    Are the parties validly married?

11. If the parties are validly married, they may meet the requirements of a spousal relationship, but not a de facto relationship. Mrs Mansueto presented with her application a copy of the marriage certificate showing the marriage was registered in Queensland on 20 April 2015. There is nothing to suggest that the marriage is not valid. On the evidence, the Tribunal accepts 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).

    Are the other requirements for a spouse relationship met?

12. The Tribunal has carefully considered the documentary evidence on the Department’s file and the substantial amount of additional evidence that has been submitted to the Tribunal (including a copy of the Department’s decision record provided by Mrs Mansueto). The Tribunal also had the benefit of hearing the oral evidence of Mrs Mansueto, Mr Langston and a witness. The Tribunal found the oral evidence of all parties to be candid and highly credible.

    Financial aspects of the relationship

13. The Tribunal has considered the financial aspects of the relationship, including any joint ownership of real estate or major assets, any joint liabilities, the extent of any pooling or sharing of financial resources, whether any person in the relationship owes any legal obligation in respect of the other, and the basis of any sharing of daily household expenses and any combined future financial commitments or plans.

14. The Tribunal questioned the couple about their financial arrangements. Both Mrs Mansueto and Mr Langston gave consistent evidence about each other’s employment histories and financial affairs. The Tribunal accepts that Mrs Mansueto works part-time as a carer at an aged care facility. The Tribunal accepts that Mr Langston is retired and lives off an aged pension and his superannuation benefits.

15. There is evidence that Mrs Mansueto and Mr Langston operate a joint bank account although the couple claim to seldom use this account. The Tribunal accepts that both parties operate separate personal bank accounts and manage their finances in a way that best suits their needs. The Tribunal accepts the couple’s oral evidence that although Mr Langston is primarily responsible for the management of household finances, both parties contribute financially to cover general household and living expenses.

16. The Tribunal has had regard to multiple submissions including utility, insurance, veterinary bills and vehicle registration documents in joint names. The couple have submitted a registration confirmation statement from the Queensland Department of Natural Resources and Mines that shows Mrs Mansueto is a registered owner (with Mr Langston) of the property at which the couple reside.

17. The Tribunal accepts the couple’s oral evidence in relation to the financial aspects of their relationship and notes that it is corroborated by some documentary evidence. The Tribunal places some positive weight on the financial aspects of the relationship.

    The nature of the household

18. The Tribunal has considered the nature of the household including any joint responsibility for the care and support of children, living arrangements of the parties and the sharing of the responsibility for housework.

19. The couple spoke about their living arrangements. The consistent evidence of the couple is that they have been in an exclusive and committed relationship since the beginning of 2015 when Mr Langston proposed to Mrs Mansueto in the Philippines, having first become acquainted over the phone via a mutual friend living in Queensland. The Tribunal is satisfied that the couple moved in together to Mr Langston’s home in Queensland when Mrs Mansueto accompanied him back to Australia in February 2015. The Tribunal notes that the couple gave highly consistent evidence about their household affairs, including their multiple pets, which include a horse, a dog and several cats.

20. With respect to the sharing of the responsibility for housework, both parties told the Tribunal that they share household responsibilities and gave consistent oral evidence as to the general breakdown of these responsibilities. The Tribunal accepts that the couple share responsibility for grocery shopping, cooking and general household chores, and that Mrs Mansueto does most of the cleaning.

21. The Tribunal places positive weight on the nature of the household.

    Social aspects of the relationship

22. Whether the persons represent themselves to other people as being in a de facto relationship with each other, 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.

23. The Tribunal is satisfied that the parties have represented themselves socially to their family and friends as a couple and continue to do so at the time of this decision. The Tribunal has considered evidence relating to the social aspects of the relationship, including numerous photos provided to the Tribunal of the couple travelling and socialising together in various settings, and the consistent oral evidence of the couple at the hearing. The Tribunal has also considered numerous statutory declarations and statements made by friends of the couple attesting to the genuine and ongoing nature of the relationship. Both Mrs Mansueto and Mr Langston were able to name each other’s closest friends when asked and recalled specific details of each other’s extended family composition and circumstances.

24. The Tribunal asked the couple about their joint social activities and holidays. They gave detailed and highly consistent oral evidence of activities they do together, including volunteering at local organisations and leatherworking. Both independently mentioned specific details relating to their social life, including specific restaurants they had eaten at, who had attended with them, and particular foods that each liked to cook for one another.

25. On the basis of the evidence before it, the Tribunal finds that the parties represent themselves to others as being married to each other, and that the couple plan and undertake joint social activities. The Tribunal finds that the relationship is viewed as genuine and continuing in the opinion of the couple’s family members, friends and acquaintances.

26. The Tribunal is therefore satisfied that the social aspects of the relationship attest to the genuine and continuing spousal relationship between the parties.

27. The Tribunal places significant positive weight on the social aspects of the relationship.

    The nature of the persons’ commitment to each other

28. The Tribunal has considered the nature of the parties’ commitment to each other, including the duration of the relationship, the length of time the parties have lived together, the degree of companionship and emotional support they provide each other, and whether the parties view the relationship as a long-term one.

29. Both Mrs Mansueto and Mr Langston impressed the Tribunal as credible witnesses who spoke candidly about their relationship. Their evidence about the nature of the relationship and their personal circumstances was both detailed and highly consistent. The Tribunal questioned both parties about their familiarity with each other and is satisfied that they both demonstrated detailed knowledge of each other’s lives (and life histories) suggestive of a couple in a genuine and ongoing spousal relationship.

30. The Tribunal is satisfied that the couple provide significant emotional support and companionship to each other. Mrs Mansueto gave several specific examples including when she had supported her husband when he’d won a recent Australia Day award, when she had provided emotional support to him when his brother had passed away and when she had cared for him when he was convalescing after recent cataract surgery. The Tribunal accepts that the couple rely on each other for emotional support. The Tribunal asked both parties if they’d considered what they would do in the event the visa application was ultimately unsuccessful. Both responded that they would move to the Philippines to be together.

31. In light of all the evidence that is before it, the Tribunal finds that the parties see their relationship as a long-term one. Accordingly, the Tribunal is satisfied, considering all of the evidence cumulatively, that Mrs Mansueto and Mr Langston have demonstrated, and continue to demonstrate, a level of commitment to one another and to their relationship as contemplated in the Regulations.

32. The Tribunal places significant weight on the nature of each person’s commitment to the other.

    Conclusion on s.5F(2) requirements

33. On the basis of the above the Tribunal is satisfied the parties are married to each other under a marriage which is valid for the purposes of the Act, and therefore at the time of application and time of decision the parties meet s.5F(2)(a).

34. The Tribunal is satisfied that at the time of application and the time of decision Mrs Mansueto and Mr Langston have a mutual commitment to a shared life as a married couple to the exclusion of all others. The Tribunal is satisfied that the relationship is genuine and continuing. The couple therefore meet the requirements of s.5F(2)(b) and s.5F(2)(c) for a married relationship.

35. Additionally, the Tribunal is satisfied that at the time of application and time of decision Mrs Mansueto and Mr Langston live together. Accordingly, the couple meets the requirements of s.5F(2)(d) for a married relationship.

36. For these reasons the Tribunal finds that at the time of application and time of decision Mrs Mansueto and Mr Langston are in a married relationship within the meaning of s.5F(2) and therefore satisfy the definition of ‘spouse’ contained in s.5F of the Act.

37. The Tribunal is satisfied that at the time of application, and time of decision, Mrs Mansueto was the spouse of a person who is an Australian citizen, and that Mrs Mansueto was sponsored by that person. The Tribunal finds that there is no evidence before it which indicates that Mr Langston was prohibited from being a sponsoring partner under cl.820.211(2B).

38. Accordingly Mrs Mansueto meets the requirements of cl.820.211(2)(a) and (c).

39. Based on the Department’s movement records, the Tribunal also finds that at the time of application Mrs Mansueto was the holder of a substantive visa, and therefore cl.820.211(2)(d) does not apply.

40. Given these findings the Tribunal is satisfied that at the time the visa application was made and at the time of this decision the parties were in a spousal relationship. Therefore Mrs Mansueto meets cl.820.211 and cl.820.221(1).

41. 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

42. 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 (Temporary)) visa:

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

    ·cl.820.221(1) of Schedule 2 to the Regulations.

    Scott Clarey
    Member

    
    

    ATTACHMENT – Extract from Migration 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).