Manuel (Migration)

Manuel (Migration) [2021] AATA 2820 (29 June 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Arthur Manuel
CASE NUMBER:  1909555
HOME AFFAIRS REFERENCE(S):          BCC2018/776499
MEMBER:Steven Griffiths
DATE:29 June 2021
PLACE OF DECISION:  Adelaide
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) visa:
·cl 820.211(2) of Schedule 2 to the Regulations; and
·cl 820.221(1) of Schedule 2 to the Regulations

Statement made on 29 June 2021 at 11:57am
CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 – high degree of companionship and emotional support – parties were legally married – genuine married relationship at the time of application – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5CB, 5F, 65
Migration Regulations 1994, r 1.15; Schedule 2, cls 820.211, 820.221
CASES
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 16 February 2018 on the basis of his relationship with his 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(2) as the delegate determined the de facto relationship of the parties had not been in place for 12 months prior to the lodgement of the visa application.
The parties were assisted by their registered migration agent, Ms. Ms. Cyril Gabito, of Gabito Lawyers
The applicant was invited to appear before the Tribunal on 30 June 2021, but following a detailed review of the submission and associated information received from the parties prior to this intended the hearing, the Tribunal determined that a decision could be made on the information provided without the requirement to hold a hearing.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The Tribunal has taken into consideration all the evidence in the Department of Home Affairs file and the Tribunal file including information provided by the applicants prior to what had been an intended hearing.
ISSUE
The issue in the present case is whether the applicant is the de facto partner, as defined in s.5CB of the Act, of the sponsor at the time of the visa application and subsequently as a result of their marriage on 28/2/19 if the applicant is, at the time of the decision, the spouse, as defined in s.5F of the Act, of the sponsor.
BACKGOUND OF THE EVIDENCE
Mr. Manuel was born in the Philippines in 1972. His parents are deceased and he has 2 sisters and a brother, born 1975, 1978 & 1986, all living in the Philippines. He arrived in Australia on 15/12/17 on a Visitor 600 Visa, granted 12/12/17 and to cease 15/3/18.
Ms. Davies was born in the Philippines in 1967. Her parents, born 1944 & 1946, live in the Philippines. She has 2 sons and a daughter, born 1991, 1997 & 2001, who live in Australia and are Australian citizens. She arrived in Australia in June 2007 and is an Australian Citizen by grant. She was previously married 09/1990 to 03/2009, from which her 3 children come, with her husband dying, and was then married 08/2012 to 08/2017, with no children from that relationship.
INFORMATION TO THE TRIBUNAL
Since the Department made a decision, the parties have provided further information to the Tribunal including:-
Details of Facebook contact September 2015
17 Photos of parties with family members and their wedding day 28/2/19
October to November 2017 messages between the parties
Migration Agent submission, 22/6/21
Registration of relationship, SA Government, Births Deaths and Marriages, 14/2/18
Money transfers by sponsor to applicant – 15/10/17 for $ 300, 18/10/17 for $ 800, 25/10/17 for $500, 11/11/17 for $ 208, 2/12/17 for $ 210, 9/4/18 for $ 500, 7/5/18 for $ 512, 17/5/18 for $524.82, 19/5/18 for $ 700.31 and 7/6/18 for $ 108
Proof of address items - Joint names electricity account May 2021, Medicare letter to applicant, general mail to the applicant
54 photos of parties with family and friend 2018 to May 2021
Joint name bank statements, December 2018 to June 2021
Applicant payslips, selection of 2020 and 2021
Christopher Navaja, son of Sponsor, Statutory Declaration, 14/6/21
Margarette Navaja, daughter of Sponsor, Statutory Declaration, 17/6/21
Alexander Navaja, son of Sponsor, Statutory Declaration, 13/6/21
Details of travel by parties to Sydney, September 2019
Mrs. Felisa Manuel Gagui, aunt of applicant, submission, 8/6/20
Mr & Mrs. Ehrenthal, long term friends of applicant, statement of support, 18/5/20
Statement by Father Christopher Barde Akiatan, priest who performed the wedding, 24/6/20
Sponsor Last Will and Testament, 9/6/21, with applicant as beneficiary
Applicant superannuation, with sponsor as 50% beneficiary
Applicant and Sponsor Statutory Declarations, 21/6/21
Is the sponsor an Australia citizen, and Australian permanent resident or an eligible New Zealand citizen?
Clause 820.211(2)(a) requires that at the time the visa application was made the applicant is the spouse or de facto partner of an Australian citizen or Australian Permanent Resident or an eligible New Zealand citizen. The Tribunal accepts the sponsor being an Australian Citizen by grant.
Whether the parties are in a spouse or de facto relationship
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).
'De facto partner' is defined in s.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 spouse or 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 r.1.09A(3) which is attached to this decision. Each of the specific matters contained in r.1.09A(3) are effectively questions which must be answered: He v MIBP [2017] FCAFC 206.
Are the parties validly married?
If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship.
The Tribunal notes the visa application was lodged on the basis of the parties being in a de facto relationship, with the Delegate making the assessment that the parting had not been in a relationship for the required minimum 12-month period prior to the lodgement of the application.
The Tribunal accepts the documented and photographic evidence of the parties marrying on 28/2/19, with an Australian Certificate of Marriage provided prior to the decision by the Delegate. There is nothing to suggest that the marriage is not valid. On the evidence, 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?
The Tribunal has considered the evidence relevant to the matters in r.1.15A. The Tribunal took into account the available documentary evidence contained on the Department’s file and the evidence provided to the Tribunal.
CLAIMS AND FINDINGS
Financial aspects of the relationship that must be considered include:-
(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 expense
The Tribunal accepts the documented evidence that the home of the parties was purchased by the sponsor prior to the relationship of the parties and determines at the time of the visa application and this decision they do not have joint ownership of real estate.
The Tribunal accepts the documented evidence of the parties recently jointly purchasing a car and determines that at the time of decision this represents the joint ownership of major assets.
The Tribunal determines from the documented evidence of the parties that at the time of the visa application and this decision, the parties do not have any joint liabilities.
The Tribunal accepts the documented evidence that the applicant has worked in Adelaide from April 2019 after being granted work rights.
The Tribunal accepts the documented evidence of the joint name bank account operated by the parties from 9/2/18 which the incomes and all expenses of the parties are transacted and determines at the time of the visa applicant and this decision the parties pool finances for major commitments and the sharing of day-to-day household expenses.
The Tribunal determines from the documented evidence that at the time of the visa application and this decision, none of the parties has a legal obligation to the other.
Nature of the household aspects that must be considered include:-
(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
The Tribunal accepts the documented evidence of the parties that the sponsor has 3 adult children from her first husband, with these young adults being a close family group with the sponsor and applicant.
The Tribunal accepts the documented evidence that the applicant does not have any children from any previous relationships.
The Tribunal accepts the documented evidence that in the early period of their relationship they lived apart due to the work requirements of the applicant.
The Tribunal accepts the documented evidence that the parties have lived together in Australia for every period the applicant has been in Australia from 15/12/17, and noted the parties have travelled overseas together in 2018 and 2020.
The Tribunal accepts the documented and photographic evidence of housework roles and determines, at the time of the visa application and this decision, the parties share responsibility for housework.
Social aspects of the relationship that must be considered include:-
(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
The Tribunal accepts the documented evidence of the contact the parties have with family and friends as an initially de facto relationship and determines, at the time of application, the parties represented themselves to other people as being de facto partners.
The Tribunal accepts the documented and photographic evidence of the wedding of the parties on 28/2/19 and determines, at the time of this decision, the parties represent themselves to other people as being married.
The Tribunal accepts the documented and photographic evidence that the parties families and their individual and collective friends, at the time of the visa application and this decision, are extremely supportive of the de facto relationship and then marriage.
The Tribunal accepts the documented and photographic evidence of the trips made by the parties in 2018 and 2020 to visit the family and friends of the applicant and sponsor.
The Tribunal accepts the documented and photographic evidence that the parties have planned and undertaken a large number joint social activities since the relationship began in October 2015 and determines, at the time of the visa application and this decision, the parties plan and undertake joint social activities.
Nature of the commitment to each other that must be considered include:-
(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.
The Tribunal accepts the documented and photographic evidence of the parties first making contact in September 2015, the sponsor visiting the applicant in the Philippines in October 2015, being in a committed de facto relationship and then on 13/10/17 the applicant proposed to the sponsor and they married on 29/2/19.
The Tribunal accepts the documented evidence that the parties have lived together since early 15/12/17 when the applicant came to Australia and determines at the time of this decision the parties have lived together in excess of 3 years and 6 months.
The Tribunal accepts the documented evidence of the parties of the support the parties have provided to each other and determines, at the time of application and this decision, a high level of companionship and emotional support is provided by each of the parties to the other.
The Tribunal accepts the documented evidence of the relationship and determines, at the time of application and this decision, the parties have an ongoing commitment to each other, the relationship, their marriage and family.
The Tribunal considered all the evidence on the circumstances of the parties and determines the evidence supports a finding that at the time of the application and this decision, the parties have had and continue to have a mutual commitment to a shared life together as a couple to the exclusion of all others, with the relationship genuine and continuing and they have and continue to live together.
On the basis of the above the Tribunal is satisfied that the requirements of s.5CB(2) was met at the time of the visa application and s.5F(2) is met at the time of this decision. The Tribunal is further satisfied the sponsor is not prohibited by subclause (2B) from being a sponsoring partner.
Therefore the applicant meets cl 820.211(2)(a) and cl.820.221(1)(a).
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 applicant meets the following criteria for a Subclass 820 (Partner) visa:
·cl 820.211(2) of Schedule 2 to the Regulations; and
·cl 820.221(1) of Schedule 2 to the Regulations
Steven Griffiths
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).
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).

[2021] AATA 2820

29 June 2021

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Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Appeal